State Consumer Disputes Redressal Commission
Smt.Savitri Roy & Ors. vs N.H.M.M.I Naryana Hospital & Anr. on 4 August, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/10
Instituted on : 09.03.2016
1. Smt. Savitri Roy, Aged 60 years,
W/o Late Shri Rajan Roy.
2. Miss Akanksha Roy, Aged 27 years,
D/o Late Shri Rajan Roy,
Both resident of : Devpuri - Amlidih Road,
Near Gautam Vihar, Devpuri,
Raipur (C.G.)
3. Smt. Smita Daniel, Aged 31 years,
D/o Late Shri Rajan Roy,
W/o Shri Sameer Daniel,
R/o : Devpuri - Amlidih Road,
Near Plastic Factory, Sheeja Foundation, Devpuri,
Raipur (C.G.) ... Complainants.
Vs.
1. N.H. M.M I. Narayana Multispecialty Hospital,
Through : Director / Competent Authority,
Dhamtari Road, Lalpur,
Raipur (C.G.)
2. Ramkrishna Care Hospitals,
Through : Director / Competent Authority,
Arvindo Enclave, Pachpedi Naka, Dhamtari Road,
Raipur (C.G.).
3. United India Insurance Company Limited,
Through : Branch Manager,
Indian Mutual Building, Narsimha Raja Square,
Bangalore - 560002 (Karnataka) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES:
Shri Rajesh Pandey, Advocate for the complainants.
Shri Apurv Goyal, Advocate for the O.P. No.1.
Shri Bhupendra Jain, Advocate for the O.P. No.2.
Shri P.K. Paul, Advocate for the O.P. No.3.
// 2 //
ORDER
Dated : 04/08/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainants have filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
(a) To direct the O.P. No.1 to pay a sum of Rs.20,00,000/-
(Rupees Twenty Lakhs), which was incurred in treatment of Late Rajan Roy along with interest @ 18% p.a. from the payable date till realization, to the complainants.
(b) To direct the O.P. No.1 to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs) towards loss of consortium, to the complainant No.1.
(c) To direct the O.P. No.1 to pay a sum of Rs.5,00,000/- (Rs. Five Lakhs) each to the complainant No.2 & 3 from depriving love and affection of their father and Rs.5,00,000/- (Rupees Five Lakhs) for loss of livelihood to the complainant No.2.
(d) To direct the O.P. No.1 to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs) towards financial loss to be suffered by the complainants.
(e) To direct the O.P. No.1 to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs) towards compensation for mental agony to the complainants.
// 3 //
(f) To direct the O.P. No.1 to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand) towards cot of litigation and other reliefs, which this Commission deems fit, to the complainants.
2. Briefly stated the facts of the complaint of the complainants are that Rajan Roy, husband of the complainant No.1 and father of the complainant No.2 & 3, was a senior citizen and was retired from the C.S.E.B. and after retirement, he was getting pension of Rs.30,000/- per month. Rajan Roy suffered brain stroke in the year 2008 and his treatment was done by the O.P. No.2 in time. Due to heart problem, Mr. Rajan Roy, was got admitted in the Escort Heart Centre, Raipur on 31.03.2013. It is diagnosed that he was suffering from Single Vessel Coronary Artery Disease, Unstable Angina, Diabetes Mellitus Type - 2, Hypertension along with Bronchial Asthma. The treatment of Rajan Roy was done by the doctors through Coronary Angiography and PTCA + Stent to Lad Procedure and on 05.04.2013, he was discharged. Thereafter in the month of February, 2014 he was having problem in taking breath, therefore he was got admitted in O.P. No.2 hospital on 20.02.2014 thereafter he become healthy. On 18.12.2015, all of a sudden, Rajan Roy, was suffering from pain in left side of his abdomen, therefore, at about 9 A.M. he was taken to O.P. No.1 Hospital, where, Dr. Mukesh Sharma, who was in duty in casualty examined him and gave pain killer to him and oxygen. In the meantime, a sum of Rs.10,000/- was deposited by the complainants. The complainants // 4 // provided the documents related to the brain stroke and by-pass surgery of Rajan Roy to the O.P. No.1, so that proper treatment can be given by O.P. No.1 to Rajan Roy, but even then he was kept in above stage till 12 P.M. whereas he was telling again and again that he is not getting relief from the pain. On the request of the complainants, the doctors informed that the pain, is not controlled, therefore, Rajan Roy, is required to be shifted in I.C.U. and Sonography, would be conducted. In spite of shifting in I.C.U. till 3 P.M., the sonogrpahy of Rajan Roy was not done, therefore, the complainants contacted to Sonography Department, then it was informed that the Sonography would be done after 7 PM. The complainant no.3 informed her husband regarding the pain of Rajan Roy, then the husband of the complainant No.3 told the Incharge of I.C.U. that Rajan Roy is admitted since morning and is suffering from pain in abdomen, even then the doctors of the O.P. No.1 Hospital did not examine that what is the reason of pain in abdomen of the patient. In these circumstances, Rajan Roy, be discharged from the O.P. No.1 hospital, so that his treatment can be got done by the complainants in other hospital. Thereafter Sonography of Rajan Roy was conducted and on the basis of the report, it was told that in the Gall bladder there is stone which is blocked in the opening of the gall bladder and to clear the position, C.T. Scan of Rajan Roy, is required to be done. At about 7 PM., Dr. Rajesh Sinha and Dr. Jaya told the complainants that in the opening of gall bladder of Rajan Roy, a stone is blocked, due to the secretion of // 5 // the gall bladder is not draining out and there was swelling in the gall bladder and Rajan Roy is suffering from pain. Besides it, Rajan Roy is also suffering from severe chest infection and pneumonia. If in the time, the secretion of the gall bladder is not drained out from the gall bladder, the gall bladder can be torn and intestine can be adhered to each other and looking to the same gall bladder is to be operated and there is no alternative. First of all, laparoscopy of Rajan Roy, is to be done and if it is not successful then one drain tube will be inserted in the gall bladder. The complainants again alert the doctors that Rajan Roy is suffering from Diabetes, Blood Pressure, Asthma and heart problem, therefore, prior to conducting treatment by any procedure, above fact be kept in mind. On the next day, Dr. Rajesh Sinha, doctor of O.P. No.1 hospital, prepared Rajan Roy for operation theatre and thereafter called the complainant no.3 and her husband at reception of O.T. and told that general anaesthesia would be given and you are required to sign on the consent letter The husband of the complainant No.3 told that for laparoscopy, his familiar was given local anaesthesia and thereafter drain tube was inserted, then Dr. Sinha told that body of every patient is separate, you give consent and we are knowing that what is to be done with the patient. The complainants have signed the consent letter and requested the doctors of O.P. No.1 hospital to properly treat Rajan Roy and to cure him from the diseases. At about 2 PM, the complainants were asked to arrange two unit blood, which was immediately arranged by the complainants, although the same // 6 // was not used. At about 4 PM Rajan Roy was brought outside from the operation theatre, at that time he was unconscious on ventilator. When the complainants asked to the doctors, then it was informed that there is huge infection, therefore, gall bladder could not be operated because during the operation, the organ which was touched was started bleeding due to infection, due to which drain tube was inserted in the gall bladder, so that the secretion of gall bladder would come outside from the gall bladder. As soon as the infection is decreased, the gall bladder would be operated. The complainant asked the doctors that when Rajan Roy was taken to operation theatre, then he was in oxygen but when he came out from the operation theatre then why he was kept in ventilator, it was informed to the complainants that Rajan Roy was having problem in taking breath, therefore, he was kept in ventilator. When till 8.30 PM, Rajan Roy, did not become conscious, the complainants asked the doctors of O.P. No.1 hospital in this regard, then they told that it is effect of anaesthesia and after completion of the effect, he will become conscious. After lapse of a long time after giving general anaesthesia for operation, Rajan Roy become conscious and told the complainants that he did not get relief from pain. On next date i.e. 20.12.2015, condition of Rajan Roy deteriorated. The doctors of the O.P. No.1 hospital again obtained signatures of the complainant No.2 in the consent letter, in which it was got written from the complainant No.3 that the gall bladder of patient Rajan Roy was removed, whereas word "Not"" was later on // 7 // added by the O.P. No.1. The patient was kept in artificial breathing machine and his condition was critical. There is effect in kidney, and he has to be kept in I.C.U. and there is danger to his life. Knowing all things, we are giving consent for further treatment. It is proved that in spite of giving treatment to the patient, there was danger to the life of the patient. The O.P. No.1 hospital received fees from the complainant for treatment of Rajan Roy even then his condition was not improved and his condition was deteriorated day by day. In this regarding the complainant again and again requested the O.P. then on 22.12.2015, medical consultation was obtained from Dr. Human Prasad Sinha, Dr. Sunil Dharmani and Dr. Dipesh Maskey. Even then the condition of the patient was becoming continuously deteriorated, whereas the doctors of the O.P. No.1 were continuously assured that the condition of the patient would be improved at the earliest. On 24.12.2015, the condition of Rajan Roy again deteriorated and the and the doctors of O.P. No.1 Hospital, Dr. Rajesh Kumar Sinha and Mukesh Sharma continued to give consultation and Dr. Dipesh Maskey and Dr. Sunil Dharmani continued cross - consultation. According to the record of O.P. No.1, on 18.12.2015 at 09.13, the patient was admitted in the hospital due to pain in abdomen and on 19.12.2015 the doctors of O.P. No.1 conducted operation of the patient, he was facing problem. In spite of struggling for about 6 days, neither Rajan Roy become alright nor he become conscious, which proves that the O.P. No.1 and its doctors did not properly treated him and committed // 8 // negligence. On 24.12.2015 at about 5 PM, Rajan Roy was discharged from the O.P. No.1 hospital. Prior to his discharge, the O.P. No.1 recovered a sum of Rs.2,00,483/- in respect of his treatment and thereafter the patient was discharged. The O.P. No.1 and its doctors negligently treated the patient for about 7 days due to which his condition was critical and Rajan Roy was facing financial problem, therefore, the complainants had immediately taken him to MECAHARA, but there no expected medical facilities are available, therefore, the complainants took him to O.P. No.2 hospital on 26.12.2015 at 5.15 PM. After conducting preliminary examination of Rajan Roy, the O.P. No.2 informed the complainants that his treatment was not properly done and a lot of time was lapsed to cure infection, therefore, the condition of the patient is very critical, even then all efforts would be done so that he can become alright. The treatment of patient was started in the O.P. No.2 hospital on 26.12.2015 and during treatment his condition was improved, but from time to time his condition become critical. During the treatment in the O.P. No.2 Hospital, there was up and down in the condition of the patient, even then the O.P. No.2 was hoping that he would become alright, for which the O.P. No.2 was giving proper treatment. Rajan Roy was struggling from life - death and he succumbed on 11.01.2016. According to Death Summary issued by the O.P. No.2, on 11.01.2016 at about 4.15 AM, Rajan Roy suffered cardiac attack and in spite of all efforts, he could not be saved and at 4.45 he had died. Due to // 9 // negligence of the O.P. No.1, Rajan Roy died. Hence, the complainants filed instant complaint and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The O.P. No.1 filed its written statement and averred that there is no deficiency of service or negligence on the part of the O.P. No.1 and the claim of the complainants is devoid of any merits. The complainants are not entitled to any amounts as claimed in the complaint. The present complaint filed by the complainants, is wholly false, frivolous and vexatious having been filed mischievously to compel the O.P. No.1 to succumb to the illegal and unlawful demands and claim of the complainants. The present complaint is filed with a dishonest intention to gain wrongfully and to cause wrongful loss to the O.P. No.1. Mr. Rajan Roy (Patient) aged 62 years was admitted with complaints of severe abdominal pain, loss of appetite associated with nausea in Casualty Ward under Dr. Mukesh Sharma on 18.12.2015. The patient had a previous case of Hypertension, Diabetes, Bronchial Asthma, Coronary Artery Disease and also had a history of Cerebral Vascular Accident in 2011 and underwent Percutaneous Transluminal Coronary Angioplasty in 2013. On admission, patient was immediately seen by Dr. Mukesh Sharma and shifted to the Intensive Care Unit in view of oxygen requirement and acute abdomen requiring analgesic support. Immediate treatment was started and required investigation was advised. His total Leukocyte Count as on 18.12.2015 was 20000/cumm which later // 10 // increased to 27600 on 19.12.2015. His creatinine level also increased from 1.1 to 2.4. Ultrasonography of the Abdomen was done which revealed that the gall bladder is grossly distended with calculus. CT scan was also done which revealed grossly distended gallbladder with suspicious cystic duct small calculus with GB wall thickening with fat stranding in the sub-hepatic area. This was suggestive of acute calculus cholecystitis. An x-ray of the chest was also performed that revealed Pneumonitis. Surgical opinion was obtained in view of the acute calculus cholecystitis and sepsis. The patient and the complainants were counselled regarding the illness, comorbidities (presence of one or more additional disorders co-occuring with a primary disease of disorder) and requirement of a surgery for acute cholecystitis. Acute cholecystitis is an inflammation of the gall bladder. Patient and the complainants were therefore informed about all the risks, complications regarding the illness, sepsis, its treatment and the intended surgery to be performed. Risk of surgery such as infection bleeding, injury to adjacent structures, cardio-pulmonary complications, risks of anaesthesia, requirements of post-operative ventilatory support and ICU Care and perioperative mortality was explained. The Patient and the complainants were informed that the surgery, Cholecystectomy (surgical removal of the gall bladder), will be performed by a laproscopic method, but in the event that a need arises on the operating table, then the surgery may be done through the open method. Further, the doctors explained to the patient and the // 11 // complainants that circumstances may arise in the Operation Theatre where the Doctors may chose to avert the intended surgery and in such an event, a drain may be put in the gallbladder to drain the bile (Cholecystostomy) and reduce the infection and sepsis. This procedure does not cure that disease but it can relieve the symptoms until the definitive surgery can safely be done. This is a short term treatment and a patient will need to have his / her gallbladder removed when he / she is better and there is less infection and swelling in the gall bladder. The opinion of doctors of various specialities were taken such as Cardiologist, Neurologist and Physician and clearance obtained for surgery. After necessary work up and anaesthesia check up, patient was taken for surgery on 19.12.2015. During the operation, it was discovered that the patient had Pyocele, thickened oedematous gallbladders wall with omental adhesions covering the gall bladder, multiple impending perforation sites on the gall bladder was and difficult anatomy near the GB neck. Adhesions was separated from the GB fundus and body with great difficulty. Besides this, there was persistent and recurrent oozing of blood in the operative field due to severe inflammation, making the surgery difficult. Another difficulty in the performance of surgery was the anatomy in the gallbladder neck area and the Callot's triangle was not identifiable due to severe adhesions and fibrosis. During surgery, the patient's blood pressure dropped for which inotropic support was started. Considering the above factors in mind such as difficulty in // 12 // identification in the structures, risk of injury to the adjacent structures and the bad condition of the patient, it was decided to perform Cholecystostomy with gall bladder drainage instead of continuing with the intended procedure of Cholecystectomy. Therefore, Cholecystectomy was done. The infected fluid in the gall bladder was drained out and a drain tube was inserted in the gall bladder lumen. Another drain tube was inserted in the sub hepatic area. Post surgery, it was concluded by the Anaesthetist that it is better and safe to keep the patient on elective ventilation due to the acute pneumonitis requiring oxygen support with sepsis and upper abdominal surgery; patient was on intropic support and acute kidney injury with metabolic acidosis and hyperkalemia (corroborating with intraoperative ABG). All these risks were clearly informed to the Patient and the complainants prior to surgery and they consented to the surgery after having been well-informed of the attendant risks. Post surgery, the complainants were informed that Cholecystostomy with GB drainage was done on the patient and the intended surgery of Cholecystectomy has been suspended for some time. The reasons for change in the decision was communicated to the complainants and they were also informed that the patient is being put on elective ventilator support in ICU. After surgery, the patient was managed in the Intensive Care Unit and was under the supervision and care of multiple doctors such as Surgeon, ICU Doctors, Physician, Nephrologist and the Neurologist regularly. During the post operative // 13 // period, patient had one episode of seizure, which was seen and managed by the Neurologist. Further, the patient's Total Leukocyte Count and Creatinine Levels began to fall post surgery, which was indicating of improvement in the treatment of infection / sepsis. The doctors though chose to continue ventilator support due to the patient's respiratory and neurological conditions. From 22.12.2015 onwards, T-piece trial was given to the patient from time to time and he was extubated on 23.12.2015 after consultation with the respiratory physician and ICU doctors. In a T-Piece Trial, the patient is kept intubated and kept off the mechanical ventilator support with oxygen inhalation through a T - Piece device connected to the endotracheal tube. The complainants were from time to time , kept informed about the patient's condition and prognosis. The need for re-intubation and mechanical support was explained to them. The complainants were also explained the need for tracheostomy in case of prolonged intubation and ventilator support, for which they, unfortunately, did not provide consent. On 24.12.2016, patient had to be reintubated again in view of the irregular breathing patterns with respiratory distress and falling oxygen saturation. Patient was put on mechanical ventilator support after explaining the circumstances to the complainants and obtaining their consent. On 24.12.2016, complainants informed that they wanted to discharge the patient and shift him to some other hospital. The risk of such an action was explained. Yet they persisted and the patient was discharged against // 14 // Medical Advice. The Patient was admitted to the hospital of O.P. No.1 in the morning of 18.12.2015. The patient complained of pain in the abdomen. Dr. Mukesh Sharma wanted to stabilize the condition of the patient and administered pain killers and oxygen before conducting Ultrasonography of the Abdomen. The patient had to pay a deposit of Rs.10,000/-. When the condition of the patient stabilized, the Ultrasonography of the Abdomen was performed at 3:20 PM on 18.12.2015. There was no delay in conducting the ultrasonography of the patient and the doctors were waiting for the patient's condition to stabilize. The doctors working at the O.P. No.1 Hospital could only diagnose the illness after perusing the Ultrasonography. Any pre- mature conclusion of an illness of any patient could have devastating consequences. Therefore, the averment of the complainants that the doctors were not able to diagnose the reasons for the patient's stomach ache till then is misleading and does not capture the facts in its entirety. Ultrasonography was performed after waiting for the condition of the patient to stabilize. After perusing the report, it was concluded that the patient had acute calculus Cholecystitis. The doctors also conducted a Computed Tomography in order to get more information about the gall bladder and its wall, Common Bile Duct, Pancreas amongst others. The doctors were made aware of the patient's history of previous illness and therefore, considering this, advised the patient and the complainants of all the attendant risk arising out of Surgery and only after obtaining their informed consent, // 15 // were additional steps taken. A general anesthesia was administered to the patient as the surgery was Cholecystectomy even though it was required to be done using the laproscopic method. The general anesthesia was given to the patient as the intended surgery was laproscopic Cholecystectomy for which general anesthesia is required and is recommended practice worldwide. Dr. Sinha did not respond that body of each patient is different and the complainants should sign the consent letter and that the doctors are aware of what they are doing to the patient. This is a misleading statement and is an attempt to create a negative bias towards the doctors. No such statement was made and every action of the Doctors was explained to the Patient and / or the complainants. The complainants were requested to arrange 2 units of blood as a precautionary measure as patient had a drop in his blood pressure in the Operation Theatre, but unfortunately, the blood that was arranged was not used as per the patient's haemoglobin level remained in the permissible limit. The patient was given sedation for elective ventilation so as to ensure that the patient does not agitate while he is on ventilator support. The administering sedation was a carefully considered choice taken in the best interest of the patient. The condition of the patient was serious. The Cholecystostomy was performed on the patient and the patient was in the ICU. A team of multiple doctors kept track of the patient's condition. The patient's Total Leukocyte Count and Creatinine Levels began to fall post surgery, which was indicative of improvement in the // 16 // treatment of the infection / sepsis and due to respiratory and neurological conditions, he was put on ventilator support. Therefore, there was no negligence in the treatment rendered by the doctors and they responded appropriately to every medical emergency suffered by the patient. The Doctors kept the complainants informed of the illness and the prognosis of the patient and no assurances were given no can assurances be given by any doctor with certainty. The doctors did not fail to provide appropriate treatment. The patient's severe condition was not due to severe neglect and irresponsibility of the O.P. No.1 and the doctors working with it. Every due and care treatment was provided to the Patient and every eventually was addressed as per medical protocol. The complainants were strongly advised not to discharge the patient while the treatment being rendered to him was under progress. The O.P. No.1 explained to the complainants about possible risks and complications including risk of mortality during transportation, but due to unfortunate persistence of the complainants, the O.P. No.1 was constrained to issue a Discharge against Medical Advice. There was no gross negligence and carelessness on the part of the O.P. No.1. The doctors provided due care and treatment to the patient. Risks of the Surgery were informed to the patient and the complainants and remedial action taken whenever required. The complainants are not entitled to any compensation whatsoever as there has been no negligence committed by the O.P. No.1. The complaint is liable to be dismissed against O.P. No.1.
// 17 //
4. The O.P. No.2 filed its written statement and denied the allegations made by the complainants against it. The O.P. No.2 averred that the complainants have unnecessarily made party to O.P. No.2, whereas the O.P. No.2 provided appropriate and high standard services, therefore, the complaint is not maintainable against the O.P. No.2. From the perusal of the para No.16 & 17, it is clear that the O.P. No.2 had given true information to the complainants regarding the health of deceased patient and the O.P. No.2 did not suppress any facts regarding his health to the complainant. The O.P. No.2 has provided high standard services to the patient. The O.P. No.2 did not commit any deficiency in service or negligence against the patient. The complainants themselves averred in the complaint that when the deceased patient was got admitted in the O.P. No.2 hospital then his condition was improving, which itself prove that in very critical condition the patient was brought to the O.P. No.2 hospital and thereafter his condition was improved, it shows that the O.P. No.2 provided high standard medical facilities to the patient. The O.P. No.2 tried its best to save the life of the patient, it means that the O.P. No.2 provided high standard medical facilities to the patient and did not commit any deficiency in service. After admission in the O.P. No.2 hospital, the patient was under supervision of expert doctors and they were providing high standard medical services. The O.P. No.2 kept the patient at Incentive Care United where he was under
supervision of expert doctor. In these circumstances is it clear that the // 18 // O.P. No.2 did not commit any negligence. The O.P. No.2 hospital is one of the leading hospital in the Chhattisgarh State where all facilities are available and it is famous for its high standard services.
The instant complaint has been filed without any basis and with malafide intention to decrease the reputation of the O.P. No.2, which is prima facie liable to be dismissed with cost. The complainants have not come before this Commission with clean hands and filed the complaint with malafide intention to gain unnecessary extra benefit.
The O.P. No.2 has not commit any deficiency in service and the complainants have not sought any relief against the O.P. N.2. The complaint has not been filed within prescribed time. The complaint filed by the complainants suffers from mis-joinder and non-joiner.
The State Commission has no jurisdiction to hear the instant complaint. The complaint is liable to be dismissed against O.P. No.2.
5. The O.P. No.3 has filed its written statement and averred that the complainants have filed the instant complaint against O.P. No.1 NH MMI Narayana Multi Specialty Hospital saying the O.P. No.3 United India Insurance Company Limited as its insurer. In the instant case, it has not been proved by any Court that NH MMI Narayana Multi Speciality Hospital committed negligence and by saying that the above hospital is insured with the O.P.No.3, the instant complaint has been filed. The complaint is pre-mature against the O.P. No.3, therefore, the complaint is not maintainable against the O.P. No.3 and complaint is liable to be dismissed. The complainants or Shri Rajan // 19 // Roy have not paid any premium to the O.P. No.3, therefore, there is no privity of insurance contract between the complainants/ Rajan Roy and O.P. No.3. Therefore, they are not consumer of the O.P. No.3, hence, according to Section 2(1)(d) of the Consumer Protection Act, 1986 the complaint filed against the O.P. No.3 is not maintainable and is liable to be dismissed. In the instant case the complainants have not mentioned in the complaint and has not proved that the O.P. No.3 has committed any deficiency in service, therefore, on this ground, the complaint is not maintainable against the O.P. No.3 and is liable to be dismissed against the O.P. No.3. The complainants/Rajan Roy have not submitted any claim before O.P. No.3 and no dispute has arisen between the complainants and the O.P. No.3, from which complaint receives base. The O.No.3 has not accepted or rejected the claim of the complainants, therefore, the O.P. No.3 is not at any fault, hence no claim can be instituted against it. The complaint is liable to be dismissed against the O.P. No.3. In the complaint the complainant mentioned that O.P. No.1 NH MMI Narayana Speciality Hospital has committed medical negligence whereas O.P. No.1 did not prove that it has obtained insurance cover from the O.P. No.3, therefore, for the fault of the above hospital, the O.P. No.3 is not liable to compensate the complainants. The complainants have arrayed the United India Insurance Company Limited as O.P. No.3 in the complaint later on and from the documents which were provided to the O.P. No.3, it appears that the O.P. No.1 and O.P. No.2 did not obtain any insurance policy // 20 // from the O.P. No.3 for the date mentioned in the case. The complaint is liable to be dismissed against O.P. No.3.
6. The complainants have filed documents. Annexure A are CT Scan of Head (Plain) dated 05.01.2009, Outpatient Card issued by Ramkrishna Care, Raipur, Discharge Summary dated 05.04.2013 issued by Escorts Heart Centre, Raipur, Annexure 2 are LAMA Summary dated 24.12.2015 issued by NH MMI Narayana Multispeciality Hospital, Doctors Progress Notes, Operation Note, Annexure 3 is Doctor's Progress Notes dated 20.12.2015, Annexure 4 are Doctor's Progress Notes, Chest Radiograph (AP View) Report issued by NH MMI Narayana Multispeciality Hospital, Contrast CT- Abdomen and Pelvis Report, Sonography of Abdomen and Pelvis Report dated 18.12.2015, Annexure 5 are Receipts issued by NH MMI Narayana Multispeciality Hospital on different dates, Anneuxre 6 is Final Bill issued by Narayana Hrudayalaya, Annexure 7 is receipt dated 25.12.2015, Annexure 8 are CT Scan Whole Abdomen P + C Report dated 28.12.2015, receipts issued by Ramkrishna Care Hospital on different dates, Inpatient Provisional Bill Summary, receipt dated 04.01.2016 issued by Chhattisgarh Blood Bank, Bill Cum Receipt issued by NH MMI Narayana Multispeciality Hospital, Hospital Bill dated 11.01.2016 issued by Ramkrishna Care Hospitals, Annexure 9 is Death Summary, medical bill, Annexure 10 is Acceptance Letter from Lambton College dated 23.03.2012, Annexure 11 is transcript of two year study, Annexure 12 is Post Graduation Degree from Lambton // 21 // College, Canada, Annexure 13 is Open Work Permit from Canadian Immigration Department, Annexure 14 is Air Ticket from Toronto to Delhi, Annexure 15 is Cancelled Air Tickets from Toronto to Delhi, Annexure 16 is Domestic Flight Ticket Delhi to Raipur, Annexure 17 are documents obtained under Right to Information Act, Annexure 18 are particulars regarding course obtained from internet, Annexure 19 is qualification displayed by the doctor in the display board, Annexure 20 is Equivalence of Degrees, Annexure 17 is application submitted under Right to Information Act, Annexure 18 are postal receipts, Annexure 19 is R.T.I. Application dated 23.02.2017, Annexure 20 is letter dated 06.03.2017 sent by A.I.I.M.S. to Dr. Anita Dhar, Annexure A-21 is letter dated 06.03.2017 sent by A.I.I.M.S. to Mrs. Smita Daniel, Annexure 22 is letter dated 06.03.2017 sent by Medical Council of India, Delhi to Ms. Akanksha Roy, Annexure 23 is letter dated 14.03.2017 sent by All India Institute of Medical Science, New Delhi to Mrs. Samti Daniel, Annexure 24 is letter dated 14.03.2017 sent by Medical Superintendent, Christian Medical College, Vellore to Ms. Smita Daniel, Annexure 25 is email sent by Akanksha Roy to Bhaskaran Ravikuamar on 08.04.2017, Annexure 26 is email sent by Akanksha Roy to Devdass P.K. on 08.04.2017, Annexure 27 is letter dated 21.03.2017 sent by Medical Council of India to Ms. Akanksha Roy.
7. The O.P. No.1 has filed copy of insurance policy along with terms and conditions. Document D-1 are details and certificate of // 22 // qualification of Dr. Mukesh Kumar Sharma, D-2 are details and certificate of qualification of Dr. Dipesh Maskey, D-3 are details and certificate of qualification of Dr. Sunil Dharmani, D-4 are details and certificate of qualification of Dr. Rajesh Kumar Sinha, D-5 are details and certificate of qualification.
8. Shri Rajesh Pandey, learned counsel for the complainants has argued that Rajan Roy, husband of the complainant No.1 and father of the complainant No.2 & 3 was a senior citizen. He was retired from C.S.E.B. and after retirement, he was getting pension of Rs.30,000/- per month. In the year 2008 deceased Rajan Roy suffered brain stroke in and he was taking treatment from the O.P. No.2. Due to heart problem, he was got admitted in the Escort Heart Centre, Raipur on 31.03.2013. According to diagnosis, it was found that he was suffering from Single Vessel Coronary Artery Disease, Unstable Angina, Diabetes Mellitus Type - 2, Hypertension along with Bronchial Asthma. The treatment of Rajan Roy was done by the doctors through Coronary Angiography and PTCA + Stent to Lad Procedure and on 05.04.2013 he was discharged. Thereafter in the month of February, 2014, he was having problem in taking breath, therefore he was got admitted in O.P. No.2 hospital on 20.02.2014 thereafter he become healthy. On 18.12.2015, all of a sudden, Rajan Roy was suffering from pain in left side of his abdomen, therefore, at about 9 A.M. he was taken to O.P. No.1 Hospital where , Dr. Mukesh Sharma, who was in duty in casualty examined him and gave pain killer and oxygen. A // 23 // sum of Rs.10,000/- was deposited by the complainants in the O.P. No.1 Hospital. All relevant documents regarding treatment taken by the patient Rajan Roy, were provided to the doctors of O.P. No.1 hospital by the complainants. The deceased was not properly treated and he was not getting relief from pain. The doctors told the complainants that the pain is not under control, therefore, Rajan Roy, is required to be shifted in I.C.U. and Sonography would be conducted. In spite of shifting in I.C.U. till 3 P.M., the sonogrpahy of Rajan Roy was not done, therefore, the complainants contacted to Sonography Department but the Sonography was not conducted immediately and it was informed that the Sonography would be done after 7 PM. Rajan Roy was admitted since morning and was suffering from severe pain in abdomen, even then the O.P. No.1 did not examine that what is the reason of pain in abdomen, therefore, the complainant told the O.P. No.1 that if proper treatment cannot be done, then patient be discharged from the O.P. No.1. Then Sonography of Rajan Roy was conducted and on the basis of the Sonography report, it was informed that in the Gall bladder there is stone which is blocked in the opening of the gall bladder and to clear the position, C.T. Scan of Rajan Roy, is required to be done. At about 7 PM. Dr. Rajesh Sinha and Dr. Jaya told the complainants that in the opening of gall bladder of Rajan Roy, a stone is blocked, due to the secretion of the gall bladder is not draining out and there was swelling in the gall bladder. and Rajan Roy is suffering pain from this reason. Besides it, Rajan Roy is also // 24 // suffering from severe chest infection and pneumonia. If in the time, the secretion of the gall bladder is not drained out from the gall bladder, the same can be torn and intestine can be adhered to each other. Looking to the same gall bladder is to be operated and there is no alternative. The treating doctor also told the complainants that initially laparoscopy of Rajan Roy is to be done and if it is not succeeded, then one drain tube will be inserted in the gall bladder. The complainants again informed the doctors that Rajan Roy is suffering from Diabetes, Blood Pressure, Asthma and heart problem, therefore, prior to conducting treatment by any procedure, above fact be kept in mind. On the next day, the patient was prepared for operation theatre and it was informed that that general anaesthesia would be given to the patient and the complainants have to sign on the consent letter. The husband of the complainant No.3 told the doctors that for laparoscopy, his friend was given local anaesthesia and thereafter drain tube was inserted, then Dr. Sinha told that body of every patient is separate, you give consent and we are knowing that what is to be done with the patient. The complainants have signed the consent letter and requested the doctors of O.P. No.1 to properly treat Rajan Roy and to cure him from the diseases. At about 4 PM Rajan Roy was brought outside from the operation theatre, at that time he was unconscious on ventilator. When the complainants asked to the doctors then it was informed that there is huge infection, therefore, gall bladder could not be operated because during the operation the // 25 // organ which was touched has started bleeding due to infection, due to which drain tube was inserted in the gall bladder, so that the secretion of gall bladder would be drained out from the gall bladder. As soon as the infection is decreased, the gall bladder would be operated. When till 8.30 PM, Rajan Roy did not become conscious, the complainants asked the doctors of O.P. No.1 hospital in this regard, then they told that it is effect of anaesthesia and after closure of the effect, he will become conscious. The doctors of the O.P. No.1 hospital again obtained signatures of the complainant No.2 in the consent letter. On 22.12.2015, medical consultation was obtained from Dr. Human Prasad Sinha, Dr. Sunil Dharmani and Dr. Dipesh Maskey. Even then the condition of the patient was becoming continuously deteriorated, whereas the doctors of the O.P. No.1 were continuously assured that the condition of the patient would be improved at the earliest. The doctors of O.P. No.1 Hospital, Dr. Rajesh Kumar Sinha and Mukesh Sharma continued to give consultation and Dr. Dipesh Maskey and Dr. Sunil Dharmani continued to give cross - consultation. According to the record of O.P. No.1, on 18.12.2015 at 09.13, the patient was admitted in the hospital due to pain in abdomen and on 19.12.2015 the doctors of O.P. No.1 conducted operation of the patient, he was facing problem. The condition of the patient was not improving. In the meantime, the O.P. No.1 recovered a sum of Rs.2,00,483/- from the complainants. As the condition of the patient was not improving, therefore, the complainants had immediately // 26 // taken him to MECAHARA, but there no expected medical facilities are available, therefore, the complainants took him to O.P. No.2 hospital on 26.12.2015 and he was treated and in spite of all efforts, he could not be saved and at 4.45 PM he had died. Shri Rajesh Pandey further argued that according to Annexure 6 which is Final Bill, excess amount was recovered by the O.P. No.1 from the complainant. In the final bill it is mentioned that Laparoscopic Cholecystectomy was done and Rs.35,600/- was taken from the complainants. It is also mentioned that on 24.12.2015, Consultation of Dr. Rajesh Kumar Sinha and Dr. Mukesh Sharma was taken and on 24.12.2015 Cross Consultation of Dr. Human Prasad Sinha, Dr. Sunil Dharmani and Dr. Dipesh Maskey were taken. The cross consultation of Dr. Sunil Dharmani and Dr. Dipesh Maskey were also taken on 24.12.2015 and the charges were recovered for the same from the complainants. It shows that the amount was extracted illegally by the doctors of the O.P. No.1. The affidavits filed by the doctors of the O.P. No.1 and the answers given by them to the questionnaire, are contradictory.
9. Shri Rajesh Pandey has further argued that written statement and affidavit has been filed by one Vineet Kumar, who is only facility director of O.P. No.1 Hospital, therefore, reply given by the O.P. No.1, is not acceptable. Dr. Sunil Dharmani, is MD (General Medicine), Dr. Rajesh Kumar Sinha is MS (General Surgery), Dr. Dipesh Maskey is MD (Medicine). Consultation of expert of Surgery was not obtained, therefore, proper procedure was not adopted by the doctors of O.P. // 27 // No.1 Hospital, which comes in the category of deficiency in service, unfair trade practice and medical negligence.
10. Shri Rajesh Pandey has further argued that the complainant No.2 Ms. Akanksha Roy was sent to Canada for study and after completing internship she was doing job in a manufacturing company at Toronto, Canada, but due to illness of her father she left her job and came to India. She suffered financial loss. The complainant No.1 is deprived from consortium and complainant No.2 & 3 are deprived from love and affection of their father, therefore, the complainants are entitled to get compensation from the O.P. No.1, as mentioned in relief clause of the complaint. He placed reliance on literature Cholecystectomy Vs. Percutaneous Cholecystostomy for management of critically ill patients with acute cholecystitis a protocol for a systematic review and Preoperative evaluation of the patient with pulmonary disease.
11. Shri Apurv Goyal, learned counsel appearing for the O.P. No.1 has argued that deceased Rajan Roy was suffering from Hypertension, Diabetes, Bronchial Asthma, Coronary Artery Disease and also had a history of Cerebral Vascular Accident in 2011 and underwent Percutaneous Transluminal Coronary Angioplasty in 2012. He further argued that according to the complainants, the patient was initially admitted by Dr. Mukesh Sharma, then operation of Cholecystectomy, was done by Dr. Rajesh Sinha. Both the doctors are necessary party, but the complainants did not make them party and without // 28 // ascertaining negligence of the treating doctors, the O.P. No.1 hospital cannot be held liable for medical negligence. For want of necessary party, the complaint is liable to be dismissed. Shri Apurv Goyal, further argued that on admission, Rajan Roy was immediately seen by Dr. Mukesh Sharma and he was shifted to Intensive Care Unit in view of oxygen requirement and acute abdomen requiring analgesic support. Immediate treatment was started and required investigation was advised. His total Leukocyte count as on 18.12.2015 was 20000/cummm which later in increased to 27600 on 19.12.2012 and his creatininue level also increased from 1.1 to 2.4. Ultrasonography of the abdomen was accordingly done and it was found that the gall bladder is grossly distended with calculus. CT scan was also done which revealed grossly distended gallbladder with suspicious cystic duct small calculus with GB wall thickening with fat stranding in the sub-hepatic area. X-ray of chest was also performed which revealed Pneumonitis. Surgical opinion was obtained in view of the acute calculus cholecystitis and sepsis. The patient and the complainants were counselled regarding the illness, comorbidities (Presence of one or more additional disorders co-occuring with a primary disease or disorder) and requirement of a surgery for acute cholecystitis. Acute Cholecystitis is an inflammation of the gall bladder. All the risks, complications regarding the illness, sepsis, its treatment and the intended surgery to be performed were informed to the patient and complainants. It was also informed to the patients and the // 29 // complainants that the surgery, Cholecystectomy (surgical removal of the gall bladder), will be performed by a laparoscopic method, but in the event that a need arises on the operating table, then the surgery may be done through the open method. The doctors also explained to the patient and the complainants that circumstances may arise in the operation theatre where the doctors may chose to avert the intended surgery and in such an event, a drain may be put in the Gallbladder to drain the bile (Cholecystostomy) and reduce the infection and sepsis. This procedure does not cure the disease but it can relieve the symptoms until the definitive surgery can safely be done. During the operation, it was discovered that the patient had Pyocele, thickened oedematous gallbladder wall with omental adhesions covering the gall bladder, multiple impending perforation sites on the gall bladder wall and difficult anatomy near the GB neck. Adhesions were separated from the GB fundus and body with great difficulty. Considering the above factors in mind such as difficulty in identification in the structures, risk of injury to the adjacent structures and the bad condition of the patient, it was decided to perform Cholecystostomy with gall bladder drainage instead of continuing with the intended procedure of Cholecystectomy, therefore Cholecystostomy was done. The infected fluid in the gall bladder was drained out and a drain tube was inserted in the gall blader lumen. Another drain tube was inserted in the sub-hepatic area. All risks were clearly explained to the patient and complainants prior to conducting surgery and their // 30 // consent was obtained and they gave their consent freely. The complainants were also explained need for tracheostomy in case of prolonged intubation and ventilator support, for which, they unfortunately did not provide consent. The treating doctors of the O.P. No.1 hospital did not commit any medical negligence. The O.P. No.1 Hospital did not recover extra amount from the complainants. Shri Apurv Goyal further argued that the complainant have not made treating doctors of the O.P. No.1 hospital as party, therefore, being Facility Director of O.P. No.1 Hospital, reply and affidavit was given by Vineet Kumar and in support thereof Dr. Mukesh Sharma, Dr. Sunil Dharmani, Dr. Rajesh Kumar Sinha, Dr. Human Prasad Sinha, Dr. Dipesh Maskey, Dr. Sandeep Chandrakar, Dr. Rajendra Parganiha. The complainants have not filed any expert opinion. The complainants submitted questionnaire to the doctors of the O.P. No.1 hospital and they gave detailed answers. Looking to the answers given by them, it appears that proper procedure was adopted by the doctors of the O.P. No.1. The complainants have utterly failed to prove that treating doctors of the O.P. No.1 hospital committed medical negligence. Shri Apurv Goyal has further argued that the complainants took the patient against the medical advice. The complainants have not obtain expert opinion from Medical Board and for want of expert opinion, it cannot be held that treating doctors of the O.P. No1 Hospital, committed medical negligence. Merely fees was recovered by the O.P. No.1, it cannot be held that the O.P. No.1 // 31 // hospital has committed any deficiency in service. Therefore, the complaint is liable to be dismissed against O.P. No.1.
12. Shri Bhupendra Jain, learned counsel for the O.P. No.2 has argued that the patient Rajan Roy was admitted in O.P. No.2 hospital on 26.12.2015 and proper treatment was given by the O.P. No.2. In the complaint, the complaints have simply pleaded that on 24.12.2015 at about 5 P.M., deceased Rajan Roy was discharged from the O.P. No.1 hospital and on 26.12.2015 he was got admitted in O.P. No.2 hospital, but there is no whisper regarding the medical negligence against the O.P. No.2, therefore, the complainants are not entitled to get any compensation from O.P. No.2. The O.P. No.2 has obtained Professional Indemnity Dr. (Other) Policy from the O.P. No.3.
13. Shri P.K. Paul, learned counsel appearing for the O.P. No.3 (Insurance Company) has supported the arguments advanced by learned counsel for the O.P. No.1.
14. We have heard learned counsel appearing for the parties and have perused the documents filed in the complaint.
15. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient // 32 // owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
16. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a // 33 // difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
// 34 // II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one // 35 // course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation.
Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
17. In the instant case the complainants have sought Rs.20,00,000/- which was incurred in treatment of deceased Rajan Roy and also sought a sum of Rs.20,00,000/- for medical negligence. The complainants have pleaded that initially the deceased was treated by Dr. Mukesh Sharma and the deceased was shifted to ICU, then Dr. // 36 // Rajesh Sinha, conducted operation of the deceased. According to the complainants, Dr. Rajesh Sinha committed medical negligence while conducting Cholecystectomy operation and due to negligently treatment given by Dr. Rajesh Sinha, the condition of the deceased deteriorated, therefore, the patient was got discharged from the O.P. No.1 hospital, but in the instant case, the complainants have not made party Dr. Mukesh Sharma, who initially treated the deceased and shifted him in I.C.U. and Dr. Rajesh Sinha, who conducted Cholecystectomy operation of the patient, therefore both the doctors are necessary parties, but the complainants did not make them parties in the instant complaint. Until and unless the complainants prove the allegation of medical negligence against Dr. Rajesh Sinha, the O.P. No.1 cannot be held liable to pay compensation to the complainants regarding medical negligence, therefore, for want of necessary party, the complaint is liable to be dismissed.
18. According to the O.P. No.1 and medical documents, it is established that the deceased Rajan Roy had a previous case of Hypertension, Diabetes, Broncghial Asthma, Coronary Artery Disease and also had a history of Cerebral Vascular Accident in 2011. The complainants also pleaded that deceased Rajan Roy suffer brain strokes in the year 2008 and had taken treatment in the O.P. No.2 hospital. ON 13.03.2013 he was admitted in Escorts Heart Centre and according to the diagnosis done he was suffering from Single Vessel Coronary Artery Diseas, Unstable Angina, Diabetes Mellitus Type-2, // 37 // Hypertension along with Bronchial Asthma. He was taking treatment from 2008 to 2013. The O.P. No.2 specifically pleaded that the O.P. No.2 had given true information to the complainants regarding health of the deceased. The O.P. No.2 did not suppress any fact regarding health of the patient. In the O.P. No.2 hospital the condition of the patient was improving. Initially his condition was very critical. The complainants have filed Death Summary of the deceased issued by O.P. No.2, which is marked as Annexure 9. In the Death Summary, under the head Final Diagnosis it is mentioned "DM II, HTN, Old CVA 2001, Post PTCA 2013 Bronchial Asthma, Post Cholecystostomy, Pneumonia, Sepsis, Septic Shock." It appears that the patents was already suffering from above diseases. He underwent Ventilator Support. Looking to the death summary issued by the O.P. No.2, it appears that the deceased was rightly taken in Ventilator Support in the O.P. No.1 hospital.
19. The complainants have challenged the qualification of Dr. Rajesh Kumar Sinha, but they did not challenge the qualification of Dr. Rajesh Kumar Sinha, in the complaint and even they did not make him party, even then Dr. Rajesh Kumar Sinha filed his affidavit and stated in his affidavit that he had passed his MBBS in July 1993 from Babasaheb Bhimrao Ambedkar, Bihar and MS (General Surgery) in May, 1999 from SMS Medical College and Hospital, Jaipur, University of Rajasthan.
// 38 //
20. Dr. Shrikant Rajimwale, Public Information Officer, C.G. Medical Council, Raipur sent letter dated 21.11.2016 (Annexure 17) to Akanksha Roy (complainant no.2), in which it is mentioned that Dr. Rajesh Kumar Sinha is registered with C.G. Medical Council. Certificate of Registration of Dr. Rajesh Kumar Sinha, has also been filed. Looking to Annexure 18, it appears that Dr. Rajesh Kumar Singh has done Fellowship F.MAS for two weeks, Fellowship and Diploma F.MAS + D.MAS for four weeks, Master Degree M.S. (MAS) for one year has been obtained by him. Annexure 20 is Equivalence of Degrees, in which, in para 26 is it mentioned thus :-
"Registration of additional qualifications
26. Registration of additional qualifications (1) If any person whose name is entered in the Indian Medical Register obtains any title, diploma or other qualification for proficiency in sanitary science, public health or medicine, which is a recognised medical qualification, he shall on application made in this behalf in the prescribed manner, be entitled to have an entry, stating such other title, diploma, or other qualification made against his name in the Indian Medical Register either in substitution for on in addition to any entry previously made."
21. The O.P. No.1 has filed GEM Endo Surgery Certificate of Dr. Rajesh Kumar Sinha, issued by National Training and Research Instittue, GEM Hospital India (P) Ltd. Coimbatore (India), Certificate of Training in Minimal Access Surgery, issued by IRCAD - University of Strasbourg, France,Certificate for Laparoscopi General Surgery Intensive Course issued by European Accredition Council for // 39 // Continuing Medical Education, Attestation De formation issued by I.R.C.A.D. E.I.T.S., Experience Certificate issued by Dr. Narin Sehgal, Medical Director, Multispecialty Centre, Certificate issued by Bhimrao Ambedkar Bihar University, Certificate issued by The Association of Minimal Access Surgeons of India FMAS, Certificate issued by Indian Association of Gastrointestinal Endo Surgeon , Certificate issued by University of Rajasthan for Master of Surgery, Certificate issued by The Association of Surgeons of India.
22. Looking to the facts of the case and documents, it appears that Dr. Rajesh Kumar Sinha, is competent to conduct Cholecystostomy operation and Surgery of Gall Bladder.
23. The complainants pleaded that the husband of the complainant No.3 told that for laparoscopy, his familiar was given local anaesthesia and thereafter drain tube was inserted, but the complainants have not filed affidavit of the said person, who informed the husband of the complainant no.3 regarding giving local anaesthesia.
24. The O.P. No.1 specifically pleaded that consent of patient and complainants was obtained. The complainants have filed Consent Letter dated 18.12.2015, in which it is mentioned thus :-
lgefr i= "gekjs ejht jktu jk; ds fiRr dh FkSyh esa iFkjh gS tks Qalh gqbZ gS mlds dkj.k muds isV esa nnZ gSA fiRr dh FkSyh esa lade.k gS // 40 // ftls fudkyuk iM+sxkA vkWijs'ku nwjchu ds }kjk djuk gSA t:jr iM+us ij isV esa phjk yxkuk iM+ ldrk gSA vkWijs'ku ds nkSjku ;k ckn esa ladze.k] [kwu dk fjlko] vkarksa dh pksaV vkSj csgks'kh dh nokvksa ds izHkko ds ckjs esa gesa crk;k gSA ejht dks fny dh chekjh gS ftlds dkj.k [kwu dks iryk djus dh nokbZ py jgh gSA ejht dks lkal dh uyh Mkydj e'khu esa vkbZ- lh- ;w- esa j[kuk iM+sxkA mudh tku dks [krjk gks ldrk gSA lHkh dqN tkurs gq, ge vkWijs'ku dh lgefr iznku djrs gSaA "
25. The complainants have filed document High Risk Poor Prognosis dated 20.12.2015, in which it is mentioned thus :
"gekjs ejht jktu jk; dk fiRrk'k; uyh fudkyk x;k gSA mUgsa d`f=d 'okal dh e'khu esa j[kk x;k gSA mudh gkyr xaHkhj gSA xqnsZ esa Hkh vlj gksus yxk gSA mUgsa vHkh vkbZ- lh- ;w- esa gh j[kuk iM+sxkA mudh tku dks [krjk gSA lc dqN tkurs gq, ge bZykt dh lgefr iznku djrs gSaA "
26. The complainants have filed Annexure 1, which is CT SCAN OF Head Plain, in which it is mentioned thus :-
"IMPRESSION :
Resolving hematoma in left lentiform nucleus.
Multifocal old infracts / lacunar infracts in right ganglio - capsular - thalamic regions.
Small old pontine infarct.
// 41 // Mild diffuse cerebral atrophy."
27. Annexure A-2 is LAMA Summary, in which it is mentioned thus :-
"DIAGNOSIS : 1. P/O LAPROTOMY CHOLECYSTOTOMY
2. ? COPD, ? LARYNGEAL ODEMA.
3. P/O - CVA, PTCA, HTN, TYPE 2 DM CASE SUMMARY :
62 years old male presented to casuality NH MMI Hospital with c/o severe Abdominal pain and Breathing difficulty was diagnosed as cholithiasis was operated for Lap. Cholecystotomy and shifted to ICU.
Ventilation was done for 2 days post op then patient was extubated but he was not able to respirate properly and orientacion was not good (E3 M5 V2). I/V/F laryngeal odema he was re intubated and kept on V A/C mode. He is k/c/of HTN, TYPE2DM, CVA (2011) and PTA (2013). 2DECHO(18/12/15) -EF 60%, concentri LVH, mild -mod MR, Sclerotic av/as/ar. ? COPD/ASTHAMA. CKD stage 3. He is in need of proper Intesivist, surgical and nephrologist care. But relatives are not willing to continue treatment, i/v/f economic condition and want to bring patient to other hospital despite all grave prognosis explained of them (LAMA). At present he is on mechanical ventilator support V A/C mode, TV-440 ml, FIO2 - 50, i:E-1.2.5, flow - 45 liter, R R-15. Risks of transportation & poot prognosis duly explained."
28. The complainants have filed Contrast CT-Abdomen and Pelvis Report, dated 18.12.2015 in which it is mentioned thus :
FINDINGS :
"Gallbladder is grossly distended with mild wall thickening and adjacent fat stranding in the subhepatic region. Suspicious calculus measuring 3 mm is seen in the cystic duct."
// 42 //
29. Annexure 9 is Death Summary issued by Ramkrishna Care Hospitals, Raipur, in which it is mentioned thus :-
"FINAL DIAGNOSIS :
DM II, HTN, OLD CVA 2008, POST PTCA 2013, BRONCHIAL ASTHMA, POST CHOLECYSTOSTOMY, PNEUMONIA, SEPSIS, SEPTIC SHOCK.
COURSE IN HOSPITAL :
This patient was admitted on 26.12.2015 under Dr. Girish Agrawal, patient was investigated in form of Haemogram, RFT, LFT, ABG, Chest x-ray, USG Abdomen, CT head, CT abdomen, 2D echo."
30. Mrs. Smita Daniel (complainant No.2) sought information under Right to Information Act, 2005 from The Public Information Officer, Bangalore Medical College and Research Institute vide document Annexure 17. She also sought information under Right to Information Act, 2005 from The Public Information Officer, All India Institute of Medical Science, New Delhi vide document Annexure 19). Vide letter dated 06.03.2017 (Annexure 21), Central Public Information Officer, AIIMS, it is informed that the medical related and health risks related opinion does not come under the definition of 'information' or 'record' as per the RTI Act, 2005, hence no information is being provided. So, the competent authority regrets your application.
// 43 //
31. Document Annexure 27 is letter dated 13.04.2017 sent by Medical Council of India, to Miss Akanksha Roy (complainant No.2), in which it is mentioned thus :-
dze la- visf{kr lwpuk Hkk- vk- i- dh fVIif.k;ka 1- MkW jkts'k dqekj flUgk }kjk bl laca/k esa] vkidks lwfpr MBBS+MS dh fMxzh dk fd;k tkrk gS fd vkids }kjk iath;u NRrhlx<+ esfMdy iwNs x;s iz'uksa esa lq>ko fufgr dkmafly esa iathd`r gS] gS vkSj ifj"kn ds ifjdfYir ftldk iath;u Lo:i dk Ikz'u vkSj vfHkys[kksa dekad&C.G.M.C. 2075/2008 ls dksbZ lwpuk ugha pkgh xbZ rFkk ftldh dkih layXu gS] vr% ;g lwpuk dk gSA D;k og MkWDVj vius vf/kdkj dk vf/kfu;e] 2005 vki dks ySizksLdksfid ltZu dh /kkjk&2 ¼,Q½ ds rgr ugha fy[k ldrs gSa] vFkok ughaA vkrkA ;|fi] bl lEcU/k esa] vkidk /;ku Hkkjrh;
vk;qfoZKku ifj"kn~~ ¼O;kolkf;d
vkpj.k] f'k"Vkpkj ,oa
uSfrdrk½ fofu;ekoyh] 2002]
ds [k.M 7-20 fd vksj
vkdf"kZr fd;k tkrk gS] tks
fd bl izdkj gS%&
**7-20- dksbZ fpfdRld
fo'ks"kK gksus dk nkok ugha
djsxk tc rd og ml fo|k
esa fo'ks"k vgZrk izkIr u dj
ysA**
2- MkWDVj jkts'k flUgk us Qazkl bl lEcU/k esa] vkidks lwfpr
ds ;qfuoflZVh ls 5 fnolh; fd;k tkrk gS fd vkids }kjk
dkslZ fd;k gS ¼dkih layXu½ iwNs x;s iz'uksa esa lq>ko fufgr
D;k og esfMdy dkmafly gS vkSj ifj"kn ds ifjdfYir
vkWQ bafM;k esa ekU;rk izkIr Lo:Ik dk iz'u vkSj vfHkys[kksa
gS vFkok ugha] rFkk os vius ls dksbZ lwpuk ugha pkgh xbZZ
uke ds vkxs o ysVj iSM esa gS] var% ;g lwpuk dk
DIP. LS (FRANCE) fy[k vf/kdkj dk vf/kfu;e] 2005
ldrs gS ;k ughaA vxj dh /kkjk&2 ¼,Q½ ds rgr ugha
ughA rks muds Åij D;k vkrkA
// 44 //
dk;Zokgh dh tk ldrh gS ;|fi] bl lEcU/k esa]
bldh tkudkjh iw.kZ :Ik ls vkidk /;ku Hkkjrh;
nh tk,A vk;qfoZKku ifj"kn~~ ¼O;kolkf;d
vkpj.k] f'k"Vkpkj ,oa
uSfrdrk½ fofu;ekoyh] 2002]
ds [k.M 1-4-2 dh vksj
vkdf"kZr fd;k tkrk gS] tks
fd bl izdkj gS%&
**1-4-2- fpfdRld vius
uke ds vkxss dsoy viuh
ekU;rk izkIr fpfdRlk mikf/k
vFkok ,sls izek.k
i=ksa@fMIyksek vFkok ,slh
fdlh lnL;rk@lEeku dk gh
mYys[k dj ldsxk tks mlds
ozfrd Kku ls-------------
32. The O.P. No.1 has filed literature on Acute and Gangrenous Cholecystitis, in which it is mentioned :-
"Current opinion favors the use of LC in patients with acute cholecystitis, including those in whom gangrenous cholecystitis is suspected. I feel that surgery should be performed as early as feasible. ..... Laparoscopic cholecystostomy and subtonal cholecystectomy are two additional bail-out maneuvers that every laparoscopist should be familiar with."
33. In literature Laparoscopic Cholecystostomy with delayed cholecystecomy as an alternative to the conversion to open procedure, it is mentioned thus :
"METHODS : Laparoscopic tube cholecystostomy was performed instead of immediate conversion to laparotomy in 9 patients with acute cholecystitis after unsuccessful attempts at laparoscopic // 45 // dissection. Elective laparoscopic cholecystecomy was done 3 months later.
CONCLUSIONS "We recommend the alternative of performing a cholecystostomy with delayed laparoscopic cholecystectomy instead of conversion to open procedure when facing a case of acute cholecystitis not amenable to laparoscopic cholecystectomy."
34. In Literature Selective Use of tube cholecystostomy with interval laparoscopic cholecystectomy in acute cholecystitis, it is mentioned thus :-
"INTERVENTION "...Laparoscopic tube cholecystostomy was performed on 2 patients during attempted laparoscopic cholecystectomy because of severe inflammation.
CONCLUSION : Tube cholecystostomy allowed for resolution of sepsis and delay of definitive surgery in selected persons..."
35. In Schwarts Principles of Surgery 10th Edition (Tex Book), it is mentioned thus :-
"...Laparoscopic cholecystectomy is safe and effective in children as well as in the elderly.
Acute Cholecystitis:
When the gallbladder remains obstructed and secondary bacterial infection supervenes, an actute gangrenous cholecystitis develops, and an abscess or empyema forms within the gallbladder.
Clinical Manifestations :
.. A high WBC count (above 20,000) is suggestive of a complicated form of cholecystitis such as gangrenus cholecystitis, perforation or asscociated cholangitis..
// 46 // Treatment Cholecystectomy is the definite treatment for acute cholecystitis. In the past, the timing of cholecystectomy has been a matter of debate. Early cholecystectomy performed within to 3 days of the illness is preferred over interval or delayed cholecystecomy that is performed 6 to 10 weeks after initial medical treatment and recuperation..
Laparoscopic cholecystectomy is the procedure of choice for actue cholecystitis."
36. The complainants submitted questionnaire to Dr. Rajesh Kumar Sinha and he gave reply to the question No.5 and 8, which run thus :-
"5. Association of Indian University (AIU) is not the organisation which recognises the medical degrees. My professional academic degree is MS (Master of Surgery), which is a recognised degree by MCI (Medical Council of India). I am also registered with the Chhattisgarh Medical Council. The FIAGES (Fellowship of India Association of Surgeons of India) are fellowships only awarded by the respective surgical association to its members after fulfilling certain professional criteria. Dip. LS is given by the University of Strasbourg, France, after completion of successful course and passing the exam taken by them. These are not the degrees but should be considered as membership / fellowships / certificates and professional achievements. These kind of fellowships and any professional achievements can be displayed as per the guidelines given by Medical Council of India Professional conduct, Etiquette and Ethics Regulations, 2002 (amended upto to 8th October, 2016. Chapter I Code 1.4.2. (Copy attached for the reference). Also, it may be noted that Medical related degrees / diplomas / certificates or proficiency are outside the purvier or scope of the said AIU equivalence.
// 47 //
8. It is not true that patient was unconscious during that period. He was put on mechanical ventilator support due to the pneumonitis and sepsis and other comorbidities. He was put on T-piece trial (still intubated but without Ventilatory support) in between. Later he was ex tubated also but has to be re-intubated and put on mechanical ventilator support due to the respiratory difficulty. His sepsis part was improving after the surgery which is indicated by continuous fall of total leukocytes count and serum creatinine and stoppage of Inotropic support. But he was to put on prolonged ventilator support due to the pneumonitis and other comorbidities. Patient's relatives were regularly counselled about the condition of the patient and the prognosis which is documents in the file and signed by them. During his admission they never showed any kind of dissatisfaction and also they were willing to continue his treatment in the hospital. All the best possible treatments given to him. But patient was taken LAMA by their relatives after signing the LAMA consent on 24.12.2015 despite our counselling that this may be dangerous and fatal to the patient."
37. The complainants submitted questionnaire to Dr. Mukesh Kumar Sharma and he gave reply to the question No.1,3 and 6, which run thus :-
"1. Patient Mr. Rajan Roy was admitted at emergency department on 18th December, 2015 with complains of acute abdomen. He was seen by me at emergency department on 18th December, 2015. He was kept nil orally and immediately started on empirical IV antibiotics, analgesics and other supportive care. His chest X-ray was suggestive of pneumonitis and provisional diagnosis of Acute cholecystitis with pneumonitis / sepsis was made. He was shifted to intensive care unit in view of requirement of oxygen & higher analgesic. At ICU Ultrasonography abdomen was done and it was confirmed as case of acute cholecystitis. Surgeon consultation was // 48 // done immediately. CECT scan of abdomen was done as per surgeons advise and was suggestive of acute cholecystitis. On 19th December, 2015, surgery was done by Dr. R.K. Sinha after necessary clearances from various departments and with patient relatives consent. Post surgery he was under constant intensive care. Post surgery his sepsis part improved and he even extubated and put on NIV (non invasive ventilator support) on 23th December, 2015. However, because of poor pulmonary conditions he has to reintubate. After reinbutation he was planned for tracheostomy for prolong ventilator support in order to minimize complication associated with intubated tube / ventilator but relatives refused and took him LAMA on 24th December, 2015.
3. Yes, Dr. H.P. Sinha, Neurologist was consulted preoperatively i.e. on 19th December, 2015 and in view old history of CVA and on 22nd December, 2015 he was consulted because patient had an episode of seizure and started on antiepileptic drug. Dr. Dipesh Maskey, pumonologist has been cross consulted since 20th December on regular basis till his relative took patient LAMA in view of old history of COPD and pneumonitis. On 22nd December, 2015 he advised for weaning trial. On 23rd December, 2015 he advised for extubation and planned for interimittent NIV (non invasive ventilator support) with oxygen support. Dr. Sunil Dharmani, Nephrologist has been cross consulted since 21st December, on regular basis, till his relatives took patient LAMA in view of high sr creatinine and atrophic right kidney. On 22nd December, 2015 he advised to continue same treatment.
6. A patient didn't have acute exacerbation of COPD / Bronchial asthma and considering all possible complications, which may arise due to delay of surgery, it was decided after consultation with anesthiesist team and surgeon, surgery should be done in interest of saving patient life (as patient was in sepsis and was expected to land in septic shock or multiorgan dysfunction) despite the fact that patient may need ventilator support postoperatively due to his pneumonitis // 49 // and COPC. This has been explained in detail to patient relatives in detail preoperatively). This surgery is done under general anesthesia."
38. The complainants have not sent medical documents of the deceased, to the Medical Board for obtaining expert opinion and have not obtained expert opinion. For want of expert opinion, mere allegation made by the complainants, is not sufficient to hold that Dr. Rajesh Sinha and Dr. Mukesh Sharma, have committed medical negligence while treating the patient.
39. In Pally Srikanth & Ors. Vs. M/s. Krishna Institute of Medical Sciences Ltd. & Ors., 2016 (4) CPR 46 (NC), Hon'ble National Commission has observed that "Onus of proving alleged negligence in treatment of a patient lies with person alleging medical negligence."
40. In Prayag Hospital & Research Center Pvt. Ltd. & Anr. Vs. Vijay Pal, 2016 (2) CPR 2 (NC), Hon'ble National Commission has observed that "complainants must provide materials to prove allegation of medical negligence."
41. In Ashok Kumar Pathak Vs. Dr. Swarnava Roy and Anr. 2017 (1) CPR 251 (NC), Hon'ble National Commission has observed that "Medical Negligence must be proved by expert opinion."
42. Looking to the answers given by the doctors to the questionnaires, it appears that anaesthesia given to the patient, is according to the medical procedure.
// 50 //
43. Looking to the above documents and answers given by the Doctors Rajesh Kumar Sinha and Dr. Mukesh Sharma to the questionnaires, it appears that Dr. Rajesh Kumar Sinha and Dr. Mukesh Sharma are well qualified doctors and they done their job properly. Dr. Rajesh Kumar Sinha done Cholecystostomy) and rightly inserted drain in gall bladder. The O.P. No.2 did not mention that wrong treatment was given by the treating doctors of the O.P. No.1 Hospital to the patient Rajan Roy.
44. The complainants contended that the excess amount was recovered by the O.P. No.1 Hospital from them. Learned counsel for the complainants has drawn our attention towards final bill (Annexure 6) issued by O.P. No.1 Hospital. The complainants have not pleaded that Rajan Roy was admitted and treated under Package policy and detailed particulars have been given by the O.P.No.1 in the final bill. The treatment to the patient was not given under Package Policy and O.P. No.1 gave detailed bill to the complainants. If any amount was recovered by the O.P. No.1 hospital from the complainants, in excess, then it does not come within purview of deficiency in service and medical negligence. On the basis of allegation of excess amount taken, the complainants are not entitled to get any compensation from the O.P. No.1 hospital.
45. The complainants have not been able to prove that the O.P. No.1 hospital & O.P. No.2 hospital have committed medical negligence, // 51 // therefore, the complainants are not entitled to get any compensation from them.
46. Therefore, the complaint filed by the complainants against OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar)
President Member
04/08/2017 04 /08/2017