National Consumer Disputes Redressal
Manju Rai vs Sanjay Gandhi Post Graduate Institute ... on 1 December, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 409 OF 2002 1. MANJU RAI WD/O RAJENDRA PRATAP RAI , B-16, BHUVNESHWAR NAGAR ORDERLY BAZAR VARANASI (U.P.) 2. - - ...........Complainant(s) Versus 1. SANJAY GANDHI POST GRADUATE INSTITUTE OF MEDICAL SCIENCE & ORS. ITS, DIRECTOR RAI BARELI ROAD LUCKNOW(U.P.) 2. MEDICAL SUPERINTENDENT SANJAY GANDHI POST GRADUATE INSTITUTE OF MEDICAL SCIENCES THROUGH ITS DIRECTORS RAI BARELI ROAD, LUCKNOW U.P. 226 014. 3. DR. D.K. CHHABRA (CHIEF NEURO SURGEON) DEPARTMENT OF NEURO SURGERY, SANJAY GANDHI POST GRADUATE INSTITUTE OF MEDICAL SCIENCES THROUGH ITS DIRECTOR RAI BARELI ROAD, LUCKNOW U.P. 4. ORIENTAL INSURANCE CO. LTD. HEAD OFFICE AT ORIENTAL HOUSE A-25/27, ASAF ALI ROAD, NEW DELHI-110002 ...........Opp.Party(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. BINOY KUMAR,MEMBER
For the Complainant : For the Opp.Party :
Dated : 01 Dec 2022 ORDER
Appeared at the time of arguments:
For the Complainant : Mr. Deepak Bashta, Ms. Ragini Vinaik
& Ms. Simmi Bhamrah, Advocates
For the Opp. Parties : Mr. Joy Basu, Sr. Advocate
with Mr. Yuvraj Singh, Mr. Kanak Bose,
Mr. Pawan, Mr. Madhukar Pandey
& Mr. Umesh Kr. Singh, Advocates
Pronounced on: 01st December 2022
ORDER
DR. S. M. KANTIKAR, PRESIDING MEMBER
1. This Consumer Complaint has been filed by Ms. Manju Rai the Complainant under the Consumer Protection Act, 1986 (for short 'the Act,1986') for alleged death her husband due to medical negligence, carelessness and deficiency in service against Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow and Others (for short 'SGPGI' 'Opposite Party').
2. The relevant facts stated by the Complainant that her husband Mr. Rajendra Pratap Rai (since deceased hereinafter referred to as the 'patient') was suffering from Cervical Spondylitis and was under medical treatment for almost a year. He consulted Dr. D. K. Chhabra (for short, 'OP-3'), Department of Neurosurgery at SGPGI and on 31.10.2001, he was successfully operated in SGPGI. After the operation, he was kept in Neurosurgery ICU for a night. On next day morning, X-ray Cervical Spine shown as normal and then he was shifted to Neurosurgery General ward. After 3 days the patient started complaining severe pain on upper back (both sides), shoulder, and up to arms & elbow. It was alleged that the doctors who increased the dosage of painkillers and he got some relief, but the pain continued. On 7.11.2001 after removal of the stitches, he was discharged and advised to take by train to Varanasi. It was alleged that throughout the journey, pain persisted and the painkillers were ineffective but, the OP doctors told nothing to worry and with the passage of time pain will reduce. On 10.11.2001, in Varanasi his family members consulted two Neurosurgeons, who advised to get X-ray of Cervical spine. Both the neurosurgeon on the basis of X ray told that the bone graft placed during spinal operation got extruded, therefore patient had terrible pain and difficulty in swallowing. They further informed that a sharp edge of extruded graft was pressing against the oesophagus, which may cause rupture and hemorrhage. They further told that during the operation for the stability of bone graft usually a metal plate shall be used to prevent further any chance of dislocation/extrusion, but the doctors at SGPGI have not applied such plate to the patient. Therefore, knowing the fact, the Complainant's eldest daughter telephonically discussed with the doctors at SGPGI who asked to bring her father to SGPGl as soon as possible. They also expressed another surgery would be required for the repositioning of the dislocated graft and they have to do plating as well.
3. Accordingly, on the next day (12.11.2001) morning the patient got admitted to Neurosurgery-ICU at SGPGI. In the evening Dr. D.K. Chhabra and Dr. V.K. Jain visited to the patient, but Dr. D.K. Chhabra left the ICU without examining the patient and just said that "there was no emergency". On 13.11.2001 the proposed corrective operation was not done, but the patient was shifted to the Neurosurgery General Ward. The patient in the meanwhile, developed few vigorous tremors unable to hold a glass of water. Dr. Deepu Banerjee who was supposed to perform the operation informed the attendants that the plate was not available in Lucknow and need to get it from Delhi. The SGPGI would get it by the evening on next day and the operation was scheduled for 15.11.2001.However, due to non-arrival of plate the operation was postponed. The relatives were assured about no risk in waiting till the imported plate arrival, and expected to be on 17.11.2001. Accordingly, the operation was scheduled to 20.11.2001 on the operation day of Dr. D. K. Chabra. During the course of time, the operated site at iliac crest (from where the bone grafts were taken) showed hematoma. It was confirmed by ultrasound and x-ray examination. Dr. D.K. Chhabra assured nothing to worry as it was due to simple local injury. On 19.11.2001, again the operation postponed due to alleged patient's fever to 99-100o F. On 20.11.2001, about 150 ml of blood was drained out by the aspiration of hematoma and no signs of infection in the hematoma. On 20.11.2001 in the noon one unit of blood was transfused as Hemoglobin % was alleged to be low. Further 2 units of blood also kept ready for the operation. However, the operation was further postponed to 22.11.2001. The traction was applied to the patient and operation was postponed to 23.11.2001. The Complainant alleged that patient was complaining of itching and pain in collar but the doctors ignored it for past ten days. During the morning rounds Dr. D.K. Chhabra opened the patient's Cervical collar to examine operated wound. He found the bone deep infection at the lower border of jaw bone, at the chin. Therefore, the operation was postponed after 5 days on 27.11.2001. The Complainant submitted that on 23.11.2001, at around 1.30 p.m, the nurse from neurosurgery general ward came and told that the Patient got a massive hematemesis followed by a cardiac arrest. For the further details she asked the relatives to contact Dr. Prasad Krishnan in the ICU, who informed them that the patient expired due to massive hematemesis (1 to 1 ½ litres of blood) and died out of cardio-respiratory arrest.
4. Being aggrieved by the negligent and careless treatment at SGPGI, the Complainant filed the Consumer Complaint before this Commission to claim compensation of Rs. 1,05,66,067/- from the OP.
5. The OPs filed their separate written versions and denied negligence while treating the patient. They OPs denied the allegation of increased pain after 3 days of operation. It was submitted that the Complainant has not filed X Ray dated 10.11.2001 done at Varanasi or any proof to prove the allegation that the bone graft was extruded and causing pain. As, on 20-11-2001 the Patient was suffering from upper respiratory tract infection, fever (99-100oF) and notice low Hemoglobin (7.5 g%), therefore, one unit blood was transfused on 21-11-2001. The doctors at SGPGI have treated the patient as per the accepted standard procedure.
6. We have heard the arguments from both the sides. The learned counsel for complainant during arguments reiterated the facts and evidence. Both the parties have filed medical literature on subject
7. The learned Counsel for OP-3 submitted that on 25.10.2001 the patient was admitted to Neurosurgery dept. at SGPGl with history of tightness of lower limbs, difficulty in walking which was progressive for last 10 months. He started having pain and restricted movements of both shoulders. Therefore, surgical treatment was necessary. The patient's pre-operative and post-operative care was given as per medical protocol. All the risk and pros and cons of the surgery were explained and was duly signed by Mrs. Smriti Rai, daughter of the patient. The treating doctors chose Corpectomy technique with bone grafting without plating. It was chosen as good and successful results were achieved in their department with the said technique. The Counsel relied upon medical literature which stated that plating is not essential and equal results have been obtained in grafting with or without plating for single level corpectomy. The graft extrusion may occur even when a plate is placed. Many centers in India perform one level vertebral fusion operation without plating and use the bone graft, as an accepted standard procedure. The Graft dislodgement may occur even when a plate is placed. Even placing an additional plate increases the plate related complications like plate dislodgement, infection, vertebral collapse. The counsel further submitted that the details of operation and its complications were issued to the patient's relatives by the Neurosurgery Department.
8. The learned Counsel for OPs-1 and 2 stated that the AIIMS Medical Board's opinion dated 18.06.2010 was in favor of the OPs. The board opined that in the instant case the plates were not necessary during surgery and the doctors adopted correct technique of bone grafting. The Counsel further argued that the corrective re-surgery was postponed because of patient's unfit condition during 15.11.2001 to 20.11.2001. The Counsel vehemently denied that patient's death was not due to the rupture of the esophagus by the extruding bone graft and the site of injury could not have caused torrential hematemesis. Therefore, there was no negligence. The Counsel relied upon few decisions of Hon'ble Supreme Court in Jacob Matthews Vs State of Punjab[1] and Kusum Sharma & Ors Vs Batra Hospital[2].
9. We gave our thoughtful consideration to the arguments and have gone through the medical record and few literature filed by the both sides. The Complainant's main grievance is that the doctors have not applied the anterior cervical plate and due to extrusion of bone graft injured the oesophagus leading to severe haemorrhage and death of the patient.
10. We need to decide whether there was failure of duty of care or deficiency in service from the OPs. On careful perusal of medical record it revealed the Patient was admitted in the Department of Neurosurgery, SGPGI on 25.10.2011 with history of tightness of lower limb, difficulty in walking over 15 years. He also, since 2 years, started having urinary urgency and erectile dysfunction. Dr. D. K. Chabra OP-3 diagnosed it as a case of Cervical Spondylitis with Myelopathy. He advised surgery so as to prevent the patient from becoming quadriplegic. The OP-3 did not operate the patient, but it was performed on 31.10.2001 by Dr. Deepu Banerjee along with Dr. V. K. Jain, Dr. Prasad Krishnan and Dr. Bernard Lyngdoh. The surgery was main C-5 cortectomy Partial C6 Cortectomy and an adjacent C4-C5 discectomy and OPL-Excision. He, instead of anterior cervical plate, placed bone graft from the iliac crest at the operated portion. However, the Complainant nothing is forthcoming why complainant the deleted name of Dr. Deepu Banerjee from the array of parties. The OP-3 only examined the patient in the OPD and/or during his routine hospital ward rounds.
11. It is pertinent to note that at the time of discharge, the patient was afebrile. His spasticity reduced considerably, the Power was Normal- grade V and no sensory deficit. The X-ray of cervical spine was taken at the time of discharge showed the graft at correct position. However, to prove their contention the OPs, have not produced the said X-ray before us. Therefore, adverse inference ought to be drawn against R1 and its doctors. Moreover, at Varanasi on 08.11.2001, the patient consulted Dr V.D. Tiwari, Neurosurgeon advised X-ray of Cervical spine, which showed that bone graft had got extruded. He opined that in view of severe pain at the time of discharge, the doctors at SGPGI ought to have taken X-ray.
12. We further note that, as advised by OP-3 , the patient be taken back from Varanasi immediately to SGPGI, Lucknow on 12.11.2001 for the re- operation to be done on 13.11.2011, but its was delayed to 23.11.2001 for the nonavailability of imported plates which had not arrived from Delhi and due to non-fitness of the patient.
13. Now adverting to the question that whether there was immediate primary duty of hospital and doctors to take Cervical X-ray to know the graft extrusion and secondly to remove the life-threatening obstruction by emergency re-operation with indigenously manufactured plate.
14. On careful perusal of medical record, on readmission (12.11.2001) there was no neurological deterioration following surgery and therefore no possibility of the graft displacement. Thus, it would not any way be life threatening condition. As discussed in proceeding paras, the delay of the re-surgery was due to patient's other medical problems like anemia , fever and collar sore close to the site of the surgery. Therefore placing a plate i.e. foreign body in the cervical spine was the additional risk of infection and non-healing of the wound. The anemia would have prevented good wound healing, therefore blood transfusion was given. It is known that a small collection of fluid/blood at the iliac crest (hip bone) after bone graft taken, which required aspiration. Due to wearing of the collar patient had a skin deep erosion on the chin, therefore the collar was removed and cervical traction given to prevent neck movements and regular dressing of the chin wound was done. We further note that on 23.11.2001 at 12.20 a.m. the patient suddenly vomited copious quantity of fresh blood approximately 1.5 litres for few minutes. The death of patient was due to cardio-respiratory arrest because of massive hematemesis. The medical record, progress notes were maintained with all details.
15. In our view, such hematemesis was not due to injury by graft protrusion, but it was more likely to be due to peptic ulcer (use of painkillers for long tome) or oesophageal varices resulting from chronic liver disease. The Post Mortem would have disclosed the real cause, but the deceased patient's attendants and her daughter, in a state of shock, not insisted for PM/ autopsy.
16. As per the Operative notes of C-6 vertebra was drilled to reach lower end of the posterior longitudinal ligament that was compressing the spinal cord. It was excision of one vertebral body with adjacent disc space and autologous bone graft taken from iliac bone was placed. The treatment was "cortectomy" with as a standard protocol. Therefore, the allegations of Complainant are not sustainable. In the instant case that technique of cortectomy with bone grafting without plating was chosen, as successful results were achieved in the SGPGI before. As per the SGPGI neurosurgery dept. statistics total 300 anterior cervical procedures were successfully performed. The procedure, without plating, were done in 180 cases and only 10 / 300 suffered graft displacement. The medical review literature states that plating is not essential and equal results have been obtained in grafting with or without plating for single level cortectomy. The insertion of plates during surgery does not ensure 100% safety against graft displacement. It is the standard medical practice in most hospitals to perform the aforementioned surgery with and without insertion of the plates. Therefore death of patient cannot be attributed to non-placement of plates The patient died due to Cardiac and Respiratory failure due to hematemesis.
17. It is clear from the opinion of the Medical Board of experts at AIIMS dated 18.06.2010, that the procedure adopted by Dr. Deepu Banerjee for the surgery was safe as per standard protocol. The Medical Board report is reproduced as below:
• That it was not necessary to apply plates in the Cortectomy surgery performed by on the Deceased on 31.10.2011.
• That the protruding bone graft in the case of the Deceased was not life threatening.
• That the delay in the surgery of the Deceased for applying plates was justified as the Deceased's weak medical condition (fever, infection etc.) did not warrant application of foreign body like a metallic plate, till the fever and suspected infection had subsided.
• That the common causes of massive Hematemesis are Peptic Ulcer Bleed and Oesophageal Variceal bleed. Since there is no report on record like an endoscopy the exact cause of death of the Deceased cannot be determined.
That in the case of the deceased the technique for cortectomy without plating was a safe technique.
That the procedure adopted by the Opposite Parties was correct in view of the facts and circumstances of the case of the Deceased. Further, cortectomy with metal plating was not the only technique that should have been adopted in the case of the Deceased.
That the medical records placed on record did not suggest an unsuccessful cortectomy performed on the Deceased.
That there are no documents on record to prove that oesophageal perforation had occurred in the Deceased's case.
That Deceased's readmission on 13.11.2011 did not warrant emergency surgery.
That the Deceased on readmission did not show any symptoms of deteriorating neurological status or progressively increasing neurological weakness.
That the records conclusively reveal that the Deceased was not fit for re-surgery between 15.11.2011 to 20.11.2011.
That the real cause of Hematemesis cannot be determined without an autopsy. In view of the findings of the medical board it is safe to say that the procedure adopted by the Opposite Parties was safe and as per standard protocol.
Thus, we agree with the expert opinion that, the protruding bone graft was not life threatening. The Hematemesis was not due to foreign body (graft) or trauma leading to perforation or rupture injury of the Oesophagus.
18. The allegation of the complainant that the surgery was postponed because of non-arrival of the plates is not sustainable. It should be borne in mind that different sizes of cervical plates, and depending upon the height of vertebra and the graft the length of the cervical plate was determined. A lot of long plate holding devices, plate fixing devices, screw drivers and distracters are required for the procedure. The whole equipment is expensive and comes in a large, heavy box that has to be transported from Delhi. Thereafter, autoclaved plates of various sizes are necessary for surgery. Thus, emergency surgery was not possible keeping. Thus the risk versus benefit is to be considered in such cases.
19. Moreover, the entire set of instrumentation is very expensive and the model every company has their own set and sizes of plates and matching instruments. Thus, most of the hospitals get the equipment on lease whenever surgery for anterior cervical plating is required rather than purchasing the equipment. It was neither possible to decide the size of the plate pre-operatively nor is it possible that for all the sizes of the plates. Though the patient's daughter was ready to get it from USA by earliest flight, but in our view without detailed equipment specifications it would be futile exercise. Thus, it appears the logistic problem and the government policy as SGPGI is Govt. institute.
20. In our view, the treating surgeon as an expert is the best judge of his choice of treatment. So far as he treated the patient as per reasonable accepted practice, it was no negligence. It would be apt to rely upon the judgment of Hon'ble Supreme Court in the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr[3]., and A.S. Mittal v. State of U.P[4]., wherein it was held that that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are:
duty of care in deciding whether to undertake the case duty of care in deciding what treatment to give, and duty of care in the administration of that treatment.
In the present case, as per afore discussion, the procedure of cortectomy, without using a plate, was undertaken consciously by the surgeon, Dr. Deepu Banerjee, in the best interest of the patient. The patient unfortunately suffered the known complication during post-operative period. The Opposite Parties have discharged their duty with reasonable care and skill. The diagnosis and treatment were not faulty or unscientific. The death of patient was not due to oesophageal perforation and no way related to the surgery also. Patient died due to sudden unexpected and unrelated hematemesis. Thus, no negligence is attributed to the treating doctors or hospital.
21. The patient had sudden hematemesis i.e. vomited approximately 1.5 litre of blood within few minutes. Therefore, the doctors immediately secured IV lines and started IV fluids, the blood clots were cleared from oral cavity, IV Dopamine was administered. An endotracheal intubation was done, further an emergency tracheostomy was also performed to clear the blood. During the tracheostomy nothing was evident about vessel or oesophageal rupture. The patient was shifted to ICU and blood from the blood bank was requisitioned. The patient was given intensive CPR but succumbed. If there was any suspicion about the possible cause of death, the patient's attendants could have insisted for autopsy.
22. There is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. The Hon'ble Apex Court in Jacob Mathew's case[5] observed that:
"A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by committing to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason- whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life -saving dose of medicine. Discretion being the better part of the valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society."
23. Similar view was taken by Hon'ble Supreme Court in other cases, Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors.[6] and in Dr. Harish Kumar Khurana v. Joginder Singh & Ors[7]. Recently, on April 20, 2022, the Hon'ble Supreme Court in the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. vs Dr. MA Methusethupathi & Ors.[8] has laid down in no uncertain terms that merely because doctors could not save the patient, he/she cannot be held liable for medical negligence. The Bench of Hon'ble Mr. Justice Ajay Rastogi and Hon'ble Mr. Justice Abhay S. Oka said that even death of a patient cannot, on the face of it, be considered to be medical negligence. The Bench said that:
it clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.
24. In obtaining the facts & the evidence adduced in the instant case and respectfully following the precedents of Hon'ble Apex Court, it is not feasible to determine medical negligence or deficiency in service on the part of OP-1 the treating doctor.
Resultantly, the Consumer Complaint fails. It is dismissed.
There shall be no order as to costs.
[1] 2005(6) SCC 1 [2] 2010 (3) 480 [3] AIR 1969 SC 128 [4] AIR 1989 SC 1570, [5] (2005) 6 SCC 1 [6] SCC OnLine SC 1149 [7] (2021) 10 SCC 291 [8] 2022 LiveLaw (SC) 391 ...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... BINOY KUMAR MEMBER