State Consumer Disputes Redressal Commission
Harinder Singh vs Nayyar Hospital on 18 October, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
Consumer Complaint No.37 of 2000
Date of institution: 08.05.2000
Date of decision : 18.10.2010
Harinder Singh son of Sohan Singh husband of Smt.Janak Kumari resident of A-
375, Ranjit Avenue, Amritsar.
.....Appellant
Versus
1. Nayyar Hospital, 3, Dasonda Singh Road, Amritsar through its
Prop./Manager.
2. Dr.R.P.Jindal c/o Nayyar Hospital, 3, Dasonda Singh Road, Amritsar.
3. Dr.Bhumi Datt Sharma c/o Nayyar Hospital, 3, Dasonda Singh Road,
Amritsar.
.....Respondents
Consumer Complaint under the Consumer
Protection Act, 1986
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Lt.Col.Darshan Singh (Retd.), Member
Mrs.Amarpreet Sharma, Member Present:-
For the complainant : Sh.Parvez Chugh, Advocate
For the respondents : Dr.Balram Gupta, Sr. Advocate
With Sh.Shireesh Gupta, Adv.
JUSTICE S.N.AGGARWAL, PRESIDENT
Janak Kumari wife of Harinder Singh complainant had gone to the respondent hospital /doctors on 27.9.1999 for the removal of stone which was in her right Ureter but had died on the same day in the hospital. The point to be determined in this complaint is whether it was due to the medical negligence or not?
2. This complaint was dismissed by this Commission vide order dated 21.01.2003. The complainant had filed an appeal (First Appeal No.394 of 2003) in the Hon'ble National Commission. It was accepted by the Hon'ble National Commission vide order dated 26.08.2009. The impugned judgment dated Consumer Complaint No.37 of 2000 2 21.01.2003 was set aside and the matter was remanded to this Commission with the direction to decide the complaint afresh after giving opportunity to the complainant or for that matter to the respondents to produce any expert evidence as they may choose including the expert evidence from an institution like PGI, Chandigarh.
3. After the file was received from the Hon'ble National Commission, the complainant filed an application for seeking medical opinion from the PGI. The respondents filed the reply and the application was opposed. This Commission vide order dated 19.11.2009 accepted the application and the matter was referred to the Director, PGI, Chandigarh for opinion of the expert doctor (specialised in the field) or from the Board of Doctors. The Director, PGI, Chandigarh vide order dated 11.12.2009 had constituted a Board of two Doctors namely Prof. S.K.Singh, Professor, Department of Urology and Dr.V.K.Arya, Additional Professor, Department of Anaesthesia. The report of the Board of doctors dated 3.5.2010 was sent to this Commission by the Director, PGI vide his office letter dated 6.5.2010. It was received in this Commission on 10.05.2010. Thereafter, none of the parties opted for producing any other evidence, expert or otherwise.
4. This is how the appeal before us.
5. In his complaint filed in this Commission on 8.5.2000, the complainant pleaded that his wife Janak Kumari (since deceased) (in short "the patient") had pain in her right side abdomen. She underwent ultrasound scan examination on 29.05.1999. The report revealed a stone in her right Ureter.
6. It was further pleaded that the complainant took his wife to the Nayyar Hospital respondent No.1 on 25.9.1999 and consulted Dr.R.P.Jindal respondent No.2 working in the said hospital. On the advice of respondent No.2, the patient underwent certain medical tests in the Clinical Laboratory situated within the premises of the respondent hospital including the blood test, Urine test and blood Urea etc. After examining the medical tests reports, respondent No.2 Consumer Complaint No.37 of 2000 3 also reached the conclusion that there were puss cells and 2 to 3 RBCs. The complainant was told that the patient was to undergo an operation for the removal of the stone and advised the complainant to bring the patient in the respondent hospital on 27.09.1999. The complainant was also told to deposit a sum of Rs.5000/- in advance for Pin Hole (Key Hole) Surgery by the use of Laser. The complainant and the patient were assured that the method of Key Hole Surgery was the latest innovative method for the removal of the calculus from the Ureter with no risk involved. This amount of Rs.5000/- was deposited by the complainant in the respondent hospital.
7. It was further pleaded that as per the advice of respondent No.2, the complainant took the patient in the respondent hospital on 27.09.1999 at 8.30 a.m. The patient was empty stomach on the medical advice of the doctors. She was fit for operation. She had no other complaint of any nature except the pain due to calculus. She had good health. She was not suffering from any other disease or pathological disorder. She was serving as a Nursing Sister in Sri Guru Teg Bahadur Hospital, Amritsar prior to her retirement.
8. It was further pleaded that none of the doctors/staff in the respondent hospital had attended to the patient on 27.09.1999 from 8.30 a.m. to 10.00 a.m.. The complainant and the patient were told to wait till respondent No.2 gets free from attending to other patients. It was only at 1.30 p.m. in the afternoon when the patient was taken in the operation theatre for the purpose of operation. About 45 minutes thereafter, the patient was brought back on a stretcher. She was put on life support system i.e. Intravenous fluids were being given to her and Oxygen mask was put on her face to enable her to breath. The complainant was astonished to see his wife in such a condition. He made enquiries from the staff of the respondent hospital as he could not meet respondent No.2. No other doctor/staff was available to explain the condition of his wife.
9. It was further pleaded that the complainant made a lot of hue and cry but nobody was telling him anything about the condition of his wife. Some Consumer Complaint No.37 of 2000 4 injections were being given and glucose was being administered to her by the staff nurse on duty. After sometime, a small Junior Doctor was requested by the complainant to stabilise the condition of the patient. The aforesaid small Junior Doctor called some Technician from Ram Saran Dass and Kishori Lal Charitable Hospital i.e. Kakkar Hospital in the evening. At about 6.00 p.m., that man told the complainant, on his enquiring about the condition of his wife, that the brain and the kidneys of the patient had become non-functioning and that she had been kept on a Ventilator. The complainant was also told by him that it was a last resort to save the life of a patient. It was only from the Technician of another hospital that the complainant learnt about the critical condition of his wife. The patient was virtually on a death bed.
10. It was further pleaded that it was at about 9.00 p.m. in the night that the patient was declared dead by the doctor on duty. The complainant and other family members were shocked to hear this unfortunate news. The complainant was unable to understand that a simple surgical procedure would prove fatal for his wife. The complainant enquired from the doctor on duty the cause of death of the patient but the said doctor expressed his total helplessness in the matter. He could not give any satisfactory reply. The complainant cremated the dead body of his wife with a heavy heart.
11. It was further pleaded that thereafter, the complainant and his brother-in-law Ravinder Singh contacted the respondents to know the cause of death of the patient but respondent No.2 tried to avoid meeting the complainant. The complainant forcibly barged into his office to know the reasons but respondent No.2 told that the surgical procedure has not been performed. He put the blame on Dr.Bhumi Datt Sharma respondent No.3 who had administered the Anaesthesia to the patient for facilitating the operation. The death of the wife of the complainant had taken place in suspicious circumstances while respondent No.2 was putting the blame on respondent No.3. The complainant asked respondent No.2 for the entire medical record relating to the admission of his wife Consumer Complaint No.37 of 2000 5 in the respondent hospital but the respondents refused to oblige the complainant. It only revealed that the record relating to the patient was either misappropriated or tampered with by the respondents.
12. It was further pleaded that the wife of the complainant was serving as a Nursing Sister in Sri Guru Teg Bahadur Hospital, Amritsar and after her retirement, she was drawing a pension of Rs.8600/- per month including other benefits. The patient enjoyed the good health except the pain in the right abdomen. She was attending to her routine duties in a normal manner. The calculus in the Ureter required a very simple surgical procedure but the medical negligence committed by respondents No.2 and 3 in the respondent hospital has taken away the life of the wife of the complainant. The patient was a qualified person as she had done a diploma in Midwifery and Staff Nurse. She had retired from the Government job. Even after her retirement, she was well within her rights to get employment in a private hospital/nursing home or she could engage herself in a private practice. The patient has left behind her husband the complainant and four children i.e. two daughters and two sons. Only one daughter of the complainant was married. The complainant himself and 3 children were dependent on the patient. The hopes and aspirations of the complainant and of the children have been crushed by respondents No.2 and 3 working in the respondent hospital by their medical negligence. Legal notice was served on the respondents but they even failed to reply. Hence, the complaint for compensation to the tune of Rs.15 lacs. Rs.1 lakh was also prayed for overhead expenses.
13. All the respondents filed the joint written statement by way of affidavit of Dr.Bhumi Datt Sharma respondent No.3. It was pleaded that the patient had retired as a Nurse from a Government Hospital at the age of 58 years. Therefore, she was more than 58 years of age and not 55 years of age as alleged in the complaint by the complainant. It was admitted that the patient had a stone in her right Ureter. It was admitted that respondent No.2 had medically examined the patient on her arrival in the respondent hospital on 25.9.1999 and he had advised Consumer Complaint No.37 of 2000 6 certain medical tests and the patient had got the same done. It was not denied that the puss cells and 2 to 3 RBCs were noticed in the Ureter but the same were not significant in the absence of any specific symptoms. The antibiotic was started even before the surgery.
14. It was also admitted that after the perusal of the tests reports, the surgery was scheduled for 27.9.1999. It was not denied that an amount of Rs.5000/- was deposited by the complainant in advance. It was pleaded that it is not called the pin hole method. It is called the Key hole method of surgery. It was also admitted that respondent No.2 had told the complainant and to the patient that the Key hole method by which the surgery was intended to be carried out involved minimal risk but he was not told if no risk was involved. Any surgery even minor does involve some element of risk but it was admitted that the complainant and the patient were told that the key hole method was the best method for removing this kind of stone. The complainant was also told that a short stay of 3-4 days in the hospital was required.
15. It was admitted that the complainant had brought his wife to the respondent hospital on 27.9.1999. Normally, the patients are admitted in the pre- evening but since the patient was a staff nurse, therefore, she was told to come in the morning of the operation day. Necessary medical tests were already performed. The patients are always kept fasting before surgery. It was also admitted that the patient was fit only as she could be considering her age. However, she was suffering from pain in the right side abdomen and she had the previous history of spinal disease. She had specifically told the respondents that she should not be given spinal Anaesthesia as she was suffering from spinal problem. It was denied if the patient was not attended by the doctor or by the staff of the respondent hospital for 2 hours. The surgery of the patient was scheduled at 11.00 a.m.. During this period, the staff members complied with the instructions of respondent No.2 such as starting of glucose, giving of antibiotics and pre- Consumer Complaint No.37 of 2000 7 medication of the patient etc. It was admitted that she was taken to the operation theatre at 1.30 p.m..
16. It was pleaded that there was some unexpected delay in the case of another patient who was taken to the operation theatre on that day prior to the wife of the complainant due to some reason (an orthopaedic operation was being performed by another surgeon). Infact, respondent No.2 was himself waiting for the operation theatre to be free, to start the surgery on the patient. This kind of delay does occur on any given date as one may anticipate that a particular surgery takes 2 hours but sometimes the surgery takes longer time than anticipated. That causes delay for the next operation.
17. It was admitted that the patient was brought back from the operation theatre after about 45 minutes but it was denied if she was on life support system. It was explained that after the patient was taken to the operation theatre, she was administered general anaesthesia in place of spinal anaesthesia. It took about 15 minutes. Then respondent No.2 started the procedure. It was found that the stone was so badly impacted that it was impossible to take it out by the key hole method. Therefore, the procedure was terminated. Respondent No.3, who had administered the Anaesthesia, was told that the key hole surgery was not possible and he should terminate the anaesthesia in the patient. It takes about 15 minutes. The open surgery was not done because it was not discussed either with the complainant or with the patient nor respondent No.2 had taken the consent of the patient/complainant for the open surgery. Since the surgical procedure terminated, respondent No.3 also terminated the Anaesthesia which took about 15 minutes.
18. It was further pleaded that after the Anaesthesia was over, the patient is told either to open the eyes or to take out the tongue. When the patient complies with it, the doctor feels satisfied that the anaesthesia has been terminated. This was done in this case also. There was no complication. If there had been any complication, the patient whould not have been brought out of the operation theatre. It was denied if the patient was put on life support system. The patient was Consumer Complaint No.37 of 2000 8 in normal condition as it could be after the termination of general anaesthesia. There was nothing shocking for the complainant.
19. It was further pleaded that the patient was shifted to the patient room. Respondents No.2 and 3 also visited the patient in the patient room. The patient was in normal post operative condition. It was also so mentioned in the medical record. If the doctor finds that the patient was not looking normal, then the patient is shifted to the Intensive Care Unit but in the present case, the patient was doing well. Moreover, respondent No.2 had explained everything to the complainant. It was made clear to him that the surgery could not be carried out as the stone was so impacted and it could not be taken out by the Key Hole Method. It was also told to the complainant that the open surgery was not attempted as it was not discussed by respondent No.2 with the complainant and the consent was also not taken for open surgery.
20. It was denied if the complainant had raised hue and cry on knowing that no doctor was available. It was un-imaginable that in a busy 50 bedded hospital with two major operation theatres and four bedded Intensive Care Unit (ICU), no doctor was present at any given time of the day or night. One doctor is always available in all hours of the day and night. They are on duty on 8 hourly rotation. The doctor on duty does not leave unless the other doctor is there to relieve him.
21. It was admitted that a technician from another hospital was called because a specific test i.e. arterial blood gases was to be carried out. He had brought the special kit to withdraw the blood. Respondent No.2 had worked as a Surgeon in that hospital for 10 years from where that technician had come. Respondent No.2 knew the technician. He was competent to withdraw the blood from the patient for the specific test purposes. The special kit is needed for that purpose. Accordingly, the said technician with the kit was called. It was denied if the said technician had told the complainant that the brain and kidneys of the wife of the complainant had become non-functional. It was denied if that technician had Consumer Complaint No.37 of 2000 9 told the complainant that the patient was kept on ventilator because the ventilator could be seen even from a distance of 10 metres.
22. The normal procedure was that the patient remains under the supervision of the nurse between 2.30 p.m. to 6.30 p.m. and the staff nurse carries out the directions given by the doctor. If the complication is noticed in any patient, then the doctor is informed by the staff nurse. Otherwise, the surgeon normally visits the hospital in the evening to see the patients. It was pleaded that in the present case, respondent No.2 got a message from the hospital around 4.00-4.30 p.m. that the blood pressure of the patient had suddenly fallen and she was serious. Respondent No.2 had arrived in the hospital immediately. It was found that the patient had suffered cardiopulmonary arrest. Respondent No.3 had also come. Respondent No.3 had revived the heart, intubated the patient and started the ventilator. This could be achieved only by a team of competent staff working with most modern gadgets.
23. It was further pleaded that respondent No.2 had told the complainant about the medical emergency of the patient. He was also assured that everything possible was being done to save the patient as her condition was serious. This kind of situation can arise to any person at any time. It could not be attributed to the alleged medical negligence on the part of respondents No.2 and 3. The blood pressure of the patient remained low inspite of dopamine. Best efforts were made by respondents No.2 and 3 to save the life of the patient but the situation did not improve. The complainant was called in the office of the respondent hospital around 9.00 p.m. He was told that his wife had suffered a serious medical accident. Efforts were being made to save her life. She was kept on the life support system but her ultimate survival did not appear to be positive. With the consent of the complainant, the life support system was disconnected and the patient was declared dead. The complainant had told the respondents that they had done their best to save the life of the patient but their efforts had failed. Consumer Complaint No.37 of 2000 10
24. It was further pleaded that no body could have anticipated her death. The death did not take place after the operation but it had occurred after an aborted operation and general anaesthesia. The complainant was told that the death of the patient was due to the serious medical accident i.e. either brain stroke or heart attack. The cause of the death of the patient could be determined only by post mortem but the complainant told them that he did not want to carry out the post mortem on the dead body of the patient. The respondents could not press it as the complainant had expressed his desire that he did not want post mortem on the dead body of the patient.
25. It was denied if respondent No.2 avoided to meet the complainant. It was also denied if the complainant and his brother-in-law Ravinder Singh had barged into the office of respondent No.2 to know the reasons for the death of the patient. Rather the complainant had never visited the office of respondent No.2 after the death of his wife. However, a few days after the death of the patient, the brother-in-law of the complainant accompanied by a friend of respondent No.2 had visited the residence of respondent No.2. The brother-in-law of the complainant had asked respondent No.2 about the cause of death of the patient and he was told that it was a medical accident. It was not attributable to any surgical process. It could happen with anyone. Even a person who has not undergone the surgical process may still face a medical accident like cardiac arrest or brain haemorrhage. Respondent No.2 had told the complainant that no surgery had taken place. It was denied if respondent No.2 had put the blame on respondent No.3. Rather respondent No.2 and respondent No.3 had worked in absolute coordination. Respondent No.3 had administered general anaesthesia to the wife of the complainant correctly.
26. It was pleaded that the complainant had reported the matter to the police a few days after the death of the wife of the complainant. The police had come to the respondent hospital and asked for the record of the case. It was immediately given to those police officials. The complainant had also made the Consumer Complaint No.37 of 2000 11 complaints to other authorities like CMO and SDM. The respondents were even questioned. The respondents had nothing to conceal from the police and other authorities with whom the complaint was lodged by the complainant. It was also denied if the supply of record to the complainant was refused as only the photostat copies could be given and not the original. Since the record was supplied to the police after the death of the patient, there was no need for the appellant to tamper with or misappropriate the records. The wife of the complainant had not undergone the operation in the respondent hospital. Therefore, no medical negligence can be attributed to the respondents. It was denied if the death of the patient took place due to the negligence on the part of the respondents. The negligence in its specific form was not explained by the complainant nor any specific medical deficiency was pointed out. It was denied if there was any medical negligence on the part of the respondent hospital or respondents No.2 and
3. Dismissal of the complaint was prayed.
27. The complainant placed on the file documents Ex.C1 to Ex.C6. The complainant also filed his affidavit Ex.C1 (doubly marked) by way of replication. The respondents placed on the file the medical record of Janak Kumari as Ex.R1. They had also filed the affidavit of respondent No.3 by way of written reply.
28. The submission of the learned counsel for the complainant was that the respondents have committed medical negligence and deficiency in service which proved fatal to the patient. Hence, it was prayed that the complaint be accepted and the respondents be directed to pay adequate compensation to the complainant.
29. On the other hand, the submission of the learned senior counsel for the respondents was that the complaint was even dismissed by this Commission earlier. The case was remanded back mainly for expert evidence. It was also submitted that the Board of Doctors have held that there was no medical negligence. It was also submitted that there was no merit in the present complaint and the same be dismissed.
Consumer Complaint No.37 of 2000 12
30. Record has been perused. Submissions have been considered.
31. The admitted facts of the case are that the complainant had taken his wife i.e. the patient, to the respondent hospital on 25.9.1999. She was medically examined by respondent No.2. Certain medical tests including the blood test, Urine test, blood urea etc. were conducted. The medical tests reports were seen by respondent No.2 and he had told the complainant and to the patient that there are many puss cells and 2-3 stones in the right Ureter of the patient. He also told him that the removal of these stones needs surgical operation. Respondent No.2 had also advised the complainant to bring the patient in the respondent hospital on 27.9.1999 for undergoing an operation.
32. It was further admitted between the parties that the complainant had come with his wife Janak Kumari in the respondent hospital on 27.9.1999 for undergoing an operation. The complainant had deposited a sum of Rs.5000/- in advance in the respondent hospital as operation fee. Respondent No.2 had also told the complainant that the calculus would be removed from the Ureter of the patient by key hole method as it involved minimal risk. The patient had signed the consent letter. It is also admitted between the parties that the patient was taken to the operation theatre on 27.9.1999 at about 1.30 p.m.
33. The version of the complainant was that he along with the patient had reached the respondent hospital on 27.9.1999 at 8.30 a.m. The patient was empty stomach on the medical advice. It is the further version of the complainant that the patient was kept waiting from 8.30 a.m. to about 10.00 a.m. and she was not attended by any doctor or other staff of the respondent hospital. Although, this fact is denied by the respondents in the written reply and it was pleaded that in this case, the instructions were given to the staff of the respondent hospital with regard to the starting of Glucose and pre-medication etc. and the staff had complied with it. Therefore, the patient was attended by the staff of the respondent hospital.
34. However, it is admitted by the respondents that the surgery of the patient was scheduled at 11.00 a.m. but the patient was taken inside the operation Consumer Complaint No.37 of 2000 13 theatre at about 1.30 p.m. The reason given by the respondents was that the unexpected delay had taken place in operating the first case. It was the orthopaedic operation being performed by another surgeon in the operation theatre. On the one hand, the respondents alleged that since the operation theatre was not free, therefore, the patient could not be taken inside the operation theatre on the scheduled time but on the other hand, the respondents alleged (in para 9 of the written statement) that the respondent hospital was a busy 50 bedded hospital with two major operation theatres. No reason has been given by the respondents in the written statement why the patient could not be taken to the second operation theatre. Neither it is pleaded if some other patient was being operated in the second operation theatre also nor it is explained if the operation theatre in which the patient was to be operated was fully equipped for the patient who were to be operated for removal of stone in the Ureter or if the other operation theatre was not well equipped for that purpose. Therefore, certainly there was delay in taking the patient inside the operation theatre. It is not pleaded by the respondents if the cause of delay was explained either to the complainant or to the patient.
35. In any case, this circumstance in itself does not amount to medical negligence and may not in itself be of any importance but when the total facts and circumstances of the case constituted medical negligence, such a factor also becomes one of the many factors constituting deficiency in service.
36. Admittedly, the patient was taken to the operation theatre at 1.30 p.m. The version of the complainant is that she was brought out of the operation theatre on a stretcher within 45 minutes. The respondents have also admitted in the written statement (para 7 of the written statement in the middle) that the patient was brought out of the operation theatre after 45 minutes. However, it was explained that general anaesthesia was administered by respondent No.3 who was a qualified and experienced doctor in the field of anaesthesia. It took about 15 minutes. Thereafter, respondent No.2 had started the procedure i.e. the Key Hole Method for the removal of the stone. It was found that the stone was so badly Consumer Complaint No.37 of 2000 14 impacted that it was not possible to take it out by the Key Hole Method. He had terminated this procedure. It took about 15 minutes. Then respondent No.2 had advised respondent No.3 to terminate the anaesthesia. This also took 15 minutes and the patient was brought back from the operation theatre after 45 minutes.
37. The complainant has alleged that when the patient was brought from the operation theatre, she was on stretcher and she was on life support system i.e. IV fluids were being given to her and the Oxygen mask was put on her face to enable her to breath. On the other hand, the respondents in their written statement chided the complainant by alleging that the complainant has no idea as to what life support system was? This was highly sophisticated equipment used by highly qualified and trained doctor when the patient's own heart and lungs stopped working. The respondents further alleged that the complainant was misusing his ignorance to harass the respondents. It was admitted by them that the IV fluids and the Oxygen mask were used in this case as these are used when the patients are brought out of the operation theatre except in case of those patients with most minor operations.
38. This explanation of the respondents appears to be suspicious. The respondents themselves have alleged in para 4 that the Key Hole Method was an operation which involved minimal risk and in this case even the operation which was attempted was not done. We are unable to understand if such an operation which involves minimal risk could prove fatal. If 15 minutes were spent in the operation theatre for administering the general anaesthesia and 15 minutes were spent on the Key Hole procedure with an intention to remove the stone from the right Ureter of the patient and when the efforts failed, it was abandoned and then the anaesthesia is terminated. That took 15 minutes. The doctor asks the patient to open the eye or to take out the tongue. If all this was done in this case, what for the Oxygen mask and IV fluids were required?
39. After the termination of the Anaesthesia, the patient had become normal as the patient was supposed to have become normal. Therefore, the efforts Consumer Complaint No.37 of 2000 15 made by the respondents in the written statement to justify the administering of IV fluids and putting on the Oxygen mask which were called by the complainant as the life support system (as he was a layman) appears to be totally unjustified on the part of the respondents. The respondents have not explained why the IV fluids were given and why the Oxygen mask was put on the face of the patient for oxygen purposes when the Anaesthesia had been terminated in 15 minutes inside the operation theatre itself.
40. Moreover, the version of the respondents that in normal course the administering of IV fluids and oxygen mask is given to all the patients who have undergone even minor operation appears to be totally false. In this case, no operation was performed. If the IV fluids were being administered to the patient and Oxygen mask was put on the face of the patient while being brought out of the operation theatre, it means, therefore, that the patient was not normal.
41. Moreover, if the respondents thought that the patient was normal, the respondents had no difficulty in asking him to come and see his wife when the complainant had seen his wife coming out of the operation theatre on a stretcher and he was anxious to know her condition. There was no hurry for the respondents to shift the wife of the complainant to the patient's room. It would also mean that the patient was not normal.
42. The version of the respondents is found to be false by their own record. The sheet of Nursing case record (page 53) of Ex.R1 are the notes of the Nursing Staff. It says that the patient was received from the operation theatre at 2.35 p.m.. The condition of the patient was serious. Whether the complainant knows the meaning of life support system or not but he was right when he alleged that the condition of his wife was serious.
43. Only respondents No.2 and 3 knew what went wrong with the patient inside the operation theatre as the complainant was waiting outside.
44. The Hon'ble Gujarat State Consumer Disputes Redressal Commission, Ahmedabad in para 6 of the judgment reported as "Arunaben D. Consumer Complaint No.37 of 2000 16 Kothari & Ors v. Navdeep Clinic & Ors., 1996 (3) CPR 20" was pleased to observe as under : -
"6. It is important at this point to note that complications and death of patient occurred in four walls of operation theatre where patient's relatives had no access whatsoever and onus therefore should lie on doctors in the operation theatre to explain events that happened there. In the said context the surgeon, anaesthetist and cardiologist have not been able to explain the events and the ultimate outcome i.e. the death of the patient. In such situation it was the duty of these medical officers to prove or rule out cause of death for which they are alleged responsible. Only avenue open to them was post-mortem which is not done. One does not need consent to inform police of such unexplainable death during operative procedures and establish beyond all doubt the cause of death."
45. Similar observations were made by the Hon'ble Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in the judgment reported as "Smt. Bhanupal v. Dr.Parkash Padode & others, II (2000) CPJ 384" as under
:-
"......In doctrine of common knowledge the patient's relatives must prove positive act of omission but they need not produce evidence to establish the standard of care as the entire operative procedure was carried out in the absence of any patient's relatives. Naturally, when all such medical or surgical procedure was carried out inside the operation theatre when nobody, on behalf of the patient was present, the patient's Consumer Complaint No.37 of 2000 17 relatives were unable to see any kind of medical/surgical procedure or what exactly happened inside the operation theatre. Therefore, the opposite parties and the staff attending inside only had special knowledge of what happened inside the operation theatre and the complainant is not in a position to exactly state the factual aspects of whatever took place inside are all necessity of evidence in order to prove the medical negligence occurring on the hands of opposite parties. Therefore, it was a duty cast upon the opposite parties to prove the fact that no sort of negligence took place inside the operational theatre. Thus, the onus of proof shifting upon the opposite parties to substantiate the fact that there was no negligence on their part."
46. Respondents No.2 and 3 have not explained the circumstances under which the condition of the patient became serious inside the operation theatre. Rather they pleaded that the patient was normal when came out of the operation theatre which is totally untrue.
47. The next submission of the learned counsel for the complainant was that in case the Key hole method failed for the reasons given by the respondents, respondent No.2 would have resorted to other procedure i.e. Open surgery procedure.
48. The respondents have, however, explained that since respondent No.2 had not taken the consent for the open surgery for the purpose of removal of the stones from the right Ureter of the patient, therefore, respondent No.2 could not take the risk of resorting to the open surgery.
49. The learned counsel for the complainant submitted that since the respondents had taken the consent letter from the patient that if during the course Consumer Complaint No.37 of 2000 18 of operation, unforeseen condition may be seen or encountered by the operating doctor which necessitates surgery or other procedure in addition to or different from those contemplated, respondent No.2 was duly authorised to use the consent already given by the patient. It was submitted by the learned counsel for the respondents that no doubt such wording exists in para 1 of the authorisation/consent letter signed by the patient for medical treatment, but respondent No.2 had specified that since he had explained to the complainant and to the patient that he will resort to key hole method which was more beneficial and involved minimal risk, therefore, he could not dare to resort to the open surgery when the key hole procedure was found to be ineffective.
50. We agree with this stand taken by respondent No.2 but at the same time, respondent No.2 was supposed to inform the complainant as he was the attendant of the patient available in the respondent hospital that the key hole procedure had failed to succeed because the stone was badly impacted and he could not resort to open surgery because he had not taken the consent for that operation specifically and, therefore, the patient has to be brought on some other day for open surgery purposes.
51. The complainant alleged that he was astonished to see his wife in such a bad condition of health. He was making enquiries from the staff of the respondent hospital. He could not meet respondent No.2. Rather no responsible member of the respondent hospital either the doctor or some qualified staff person met the complainant to explain him regarding the condition of his wife.
52. No doubt, the respondents have alleged in para 8 of the written statement that respondent No.2 had explained everything to the complainant that the stone could not be removed by the key hole method as it was badly impacted and that open surgery was not resorted to as he had not taken the consent for this purpose. However, the respondents have nowhere pleaded if respondent No.2 had also informed the complainant that his wife was in normal condition or that she would join him after 1 hour or 2 hours or that she could be taken home by the Consumer Complaint No.37 of 2000 19 complainant or that she could be brought to the respondent hospital on some other day for open surgery or if the complainant was permitted to see his wife for himself. All these circumstances make the conduct of the respondents to be suspicious including the fact that he had met the complainant after the patient was brought back from the operation theatre particularly when we read the next paragraph.
53. The complainant has alleged that he was raising hue and cry to know the condition of his wife but no doctor or staff member of the respondent hospital was available to explain the condition of his wife to him although certain injections and glucose bottles were administered to the patient by the staff on duty. Sometime thereafter, a Junior Doctor was contacted by the complainant and he was requested to stabilise the condition of his wife. If respondent No.2 had met the complainant and had explained the situation, the complainant could not have conducted himself like a dejected man.
54. It was further alleged by the complainant that it was only at about 6.00 p.m. in the evening that a technician from another hospital came and the complainant came to know from him that the brain and the kidneys of the patient had become non-functional and she was kept on a Ventilator. The respondents have denied all these allegations but have admitted that a technician from another hospital was called at 6.00 p.m.. He was called because a specific test i.e. Arterial Blood Gases was required to be conducted. He had brought the special kit to draw the blood. Since respondent No.2 had worked in that hospital for about 10 years where this technician was working, therefore, respondent No.2 knew this technician very well. He was qualified to draw the blood from the patient in order to carry out this specific test.
55. It means, therefore, that something was going wrong with the patient about which the complainant was totally worried. If the condition of the patient was deteriorating when she was in the patient's room, it was the bounden duty of the respondents to keep the complainant aware about it and to take most urgent Consumer Complaint No.37 of 2000 20 steps to normalise the condition of the patient. In the present case, the complainant is repeating time and again that the condition of his wife was not being disclosed to him after she was brought out from the operation theatre till she was declared dead at 9.00 p.m.. The patient was rolling between life and death and the complainant was sitting just outside waiting for some good news to come about the normalisation of the condition of his wife. He could certainly be shocked when this news was broken to him that his wife had died.
56. Let us look from the side of the respondents. The respondents in the written reply were just making a fun of the complainant in their pleadings. It was pleaded as under : -
"It is most surprising that the technician told the complainant and the latter believed him that the brain and kidneys of the wife of the complainant had become non-functional. Even a specialist doctor would require sophisticated tests to arrive at such a conclusion. It is alleged that the technician also said that apparently she had been kept on a ventilator. A ventilator is not a small thing that can be hidden somewhere near the patient. The latest model that is available with Opposite Party No.1 (hospital) can be seen even from a distance of 10 metres."
57. If the doctors of the respondent hospital or if the responsible staff of the respondent hospital is not disclosing the condition of the patient to the complainant, the latter can draw solace to know about the condition of his wife even from a third person, he may even be a Peon. A technician who had drawn the sample of the blood from the patient could know more about the condition of the patient. He was knowing well the purpose for which he had taken the blood sample from the patient. Certainly he being a technical man must be knowing about the condition of the patient better than even a most educated person sitting Consumer Complaint No.37 of 2000 21 outside. To plead that the respondent hospital has the latest model of Ventilator or if the Ventilator was visible from 10 metres, how all it could bring peace to the mind of the complainant if he was totally unaware about the condition of his wife. He believed whatever was told to him by the technician but these pleadings merely mock at the complainant particularly when he has lost his world. Instead of explaining the situation to the complainant about the reasons which caused deterioration in the health condition of his wife, the respondents are taking pride that they have the latest Ventilator.
58. Moreover, as per the version of the respondents, respondent No.2 had received a message from the hospital between 4 to 4.30 p.m. that the blood pressure of the patient had suddenly fallen. He immediately went to the hospital. The patient's record (bed head ticket) has been produced by the respondents as Ex.R1. Respondent No.2 has recorded the notes relating to pre-operation, operation notes and post-operative instructions of the patient. Thereafter, there is no entry in the hand writing of respondent No.2 after 4.00 p.m. when he alleges that he had come in the hospital as to why the condition of the patient deteriorated from 2.30 p.m. onwards till her death at 9.00 p.m. nor there appears to be any note regarding the presence of respondent No.2 in the notes Ex.R1.
59. If the notes were recorded by respondent No.3 on bed head ticket of the patient till her death even from 2.30 p.m. onwards but there is no such note recorded by respondent No.2 from that time onwards in the patient's file Ex.R1.
60. If respondent No.2 had come in the hospital before 4.30 p.m., he should have recorded the notes about the steps taken by him to save the life of the patient but nothing of that sort is available in the bed head ticket Ex.R1.
61. The bed head ticket Ex.R1 (internal page 33) also reveals that when the patient had come from the operation theatre at 2.30 p.m., her condition was serious. If it was so, respondent No.2 was required to attend to the patient and provide her all possible help to bring her to normal condition. The version of the respondents that respondent No.2 was called between 4 and 4.30 p.m. and he Consumer Complaint No.37 of 2000 22 reached the hospital shows that respondent No.2 had left for his home after the patient was brought out from the operation theatre.
62. The notes of the staff nurse (nursing care record page 33) further reveals that the BP of the patient had become very high at 3.00 p.m. itself and had continued even after 3.30 p.m. The patient had become restless at 3.30 p.m.. She informed the Medical Officer for further orders. At about 4.00 p.m., the patient had got respiratory arrest.
63. If it was so, what steps were taken by the respondents to bring the situation under control? If respondents No.2 and 3 were not in a position to restore normacy, they could have called some Cardiologist to meet the situation. If the respondents could call a technician from another hospital, what was the difficulty for the respondents to call a Cardiologist?
64. On the one hand, the respondents allege that it was a busy 50 bedded hospital with two major operation theatres and 4 bedded Intensive Care Unit (ICU), what was the use of all these things to the complainant whose wife had suffered a respiratory arrest at 4.00 p.m. and no specialist doctor was called to save her life. If the respondent hospital is 50 bedded hospital, they must have some Cardiologist in their own establishment. This is a total negligence on the part of the respondents not to call a specialist to meet the situation. The respondents rather had allowed the condition of the patient to go from bad to worse without making any specific effort to call the specialist doctor who could stop deterioration. Merely writing nostalgically that they are the 50 bedded hospital how will it work as a soothing balm on the wounds of the complainant. The situation as depicted by the Nursing Care Record in Ex.R1 can only show that the respondents were using soft measures where most specialised treatment was required. Not even efforts were made to bring any specialist to meet the situation.
65. The respondents have admitted having called a technician but no plea has been taken by them if they had called any heart specialist or specialist in the field from which the patient was suffering between 2.30 p.m. till 9.10 p.m. Consumer Complaint No.37 of 2000 23 when the patient died. The respondents feel comfortable by pleading that the patient had suffered Cardiopulmonary arrest or a medical accident either the brain stroke or the heart attack (para 13 of the written reply) and they leave the patient to her own fate while the complainant had lost his best companion, natural friend and his life mate on the earth.
66. The respondents have pleaded that respondent No.3 had revived the heart, intubated the patient and started the ventilator. The respondents pleaded "This could be achieved only by a team of competent staff working with most modern gadgets". (towards the end of para 10 of the written reply) How did it matter when the heart patient is being treated by the doctors who are not specialised in the field? If they had most modern gadgets, why did the respondent hospital not have the most specialist Cardiologist or why did they not call any doctor from any other hospital if they could call a technician?
67. The medical opinion dated 3.5.2010 of the Board of Doctors received through the Director, PGI, Chandigarh vide his office letter dated 6.5.2010 reads as under : -
"After going through the details, the Medical Board is of opinion that due to lack of infrastructure at Nayyar Hospital there was deficiency in the service provided, however, once the problem got detected the steps taken were appropriate."
68. The Hon'ble Supreme Court has held in the judgment reported as V.Kishan Rao v. Nikhil Super Speciality Hospital and another, 2010 (2) RCR (Civil) 929" as under :
"54. This court however makes it clear that before the consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to Consumer Complaint No.37 of 2000 24 adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other."
69. In the facts of this case, the respondents have pleaded that when the patient was taken out of the operation theatre, her condition was normal as the Consumer Complaint No.37 of 2000 25 condition of other patients normally is. On the other hand, the staff nurse in the bed head ticket of the patient Ex.R1 writes (page 33) that the condition of the patient was serious. In any case, the respondents have admitted that the condition of the patient had become critical between 4 to 4.30 p.m. The staff nurse has also written that the patient had respiratory arrest at 4.00 p.m. The respondents had failed to call any Cardiologist or any specialist doctor to meet the situation. Therefore, it is clearly proved that the respondents had not taken appropriate steps which were required after they had come to know about the serious condition of the patient. Therefore, this report does not help the respondents.
70. This, therefore, was a case of total medical negligence.
71. The submission of the learned counsel for the respondents was that the complaint was dismissed by this Commission earlier vide order dated 21.01.2003 by holding that the complainant has nowhere alleged as to what was not done by the respondents which should have been done. No specific allegation was made by the complainant as to how respondent No.2 was deficient in treating his wife and what type of wrong anaesthesia was given by respondent No.3. It was also submitted that this Commission had also noticed that above all, no expert evidence has been produced by the complainant on record to prove his allegations that his wife died due to the medical negligence on the part of the respondents. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as "Indian Medical Association v. V.P.Shantha and others, 1995 (2) CPC 602"
72. This submission has been considered.
73. The facts of each case are different from the other. In the present case, the complainant has specifically alleged that the patient was taken in the operation theatre at about 1.30 p.m. on 27.9.1999 and she was brought back from the operation theatre after about 45 minutes. These facts are admitted by the respondents in the written reply. The complainant has alleged that the patient was brought back on a stretcher. She was put on life support system i.e. IV fluids were being given to her and the Oxygen mask was put on her face to enable her to Consumer Complaint No.37 of 2000 26 breath. The respondents have not denied that the IV fluids were being given to her and the Oxygen mask was put on her face but it is alleged by them that this was a normal course when the patient is brought from the operation theatre after the operation.
74. The respondents also took the plea that the patient was in normal condition when brought from the operation theatre.
75. However, the version of the respondents is contradicted by the office notes recorded by the staff nurse in the medical record produced by the respondents as Ex.R1 (page 53). It is specifically mentioned by her that when the patient was brought from the operation theatre at 2.35 p.m., her condition was serious.
76. Now, what happened in the operation theatre, the complainant cannot explain because he was not there in the operation theatre. It is only the treating doctor or the doctor who administered the anaesthesia know or the staff members who were in the operation theatre at that time know how the condition of the patient became so serious. All this has been discussed in the above paragraphs. Reference has also been made to the judgments of the Hon'ble Gujarat State Commission and the Hon'ble Madhya Pradesh State Commission that the story within the operation theatre is known to the doctors inside the operation theatre only and thereafter only respondents No.2 and 3 were to explain what went wrong with the health of the patient inside the operation theatre. The respondents have failed to explain why the condition of the patient became so serious particularly when she was taken inside the operation theatre for a minor operation which involved minimal risk even according to the respondents.
77. The complainant has also alleged and proved as well that the condition of patient was not told to him by respondent No.2. This should have been done by the respondents. Even the notes of the staff nurse revealed that the blood pressure of the patient had arisen very high i.e. 190-90. She had become Consumer Complaint No.37 of 2000 27 restless at 3.30 p.m. and she had suffered the respiratory arrest at 4.00 p.m. No specialist in the field was called to meet the emergency.
78. Respondent No.2 alleges that he had reached at 4.30 p.m. in the hospital but the medical record Ex.R1 does not show if he had reached. The notes recorded by him in his own hand in Ex.R1 were only upto the time when the patient was taken out of the operation theatre and the instructions were given about the medicines/injections to be given to the patient. It was about 2.35 p.m. and thereafter, in the bed head ticket Ex.R1, there is no note recorded by respondent No.2 if he had called any specialist. Even the version of respondent No.2 that he had reached the spot is falsified by the bed head ticket Ex.R1. If he had come to attend the patient, he would have entered some notes in the bed head ticket.
79. All these things clearly revealed that the respondents had done something which should not have been done in the operation theatre and they had not done something which should have been done between 2.35 p.m. to 9.10 p.m. when she was declared dead. Therefore, the judgment in V.P.Shantha's case does not apply to the facts of the present case.
80. So far as the expert evidence is concerned, there was no need of such expert evidence in the facts and circumstances of this case. The version of the respondents themselves is different than what is reflected by the medical record maintained by them and proved in this Commission as Ex.R1. The notes recorded by the staff nurse in the medical record Ex.R1 are sufficient to prove that the respondents have committed serious medical negligence and they have allowed the situation to deteriorate. In the facts of the present case, the medical negligence of the respondents is clearly proved even without expert evidence.
81. It may also be noticed that the complainant had served the legal notice on the respondents on 30.10.1999 (Ex.C6) and the respondent had not replied to it. It was pleaded by the complainant in para 24 of the complaint. However, in the corresponding paragraph of the written statement filed by the Consumer Complaint No.37 of 2000 28 respondents, it is not pleaded by them if they had not received the legal notice or if it was replied. If the respondents had done their best to save the life of the patient, atleast they could have given reply to the legal notice of the complainant.
82. It was also submitted by the learned counsel for the respondents that they had filed an application for permission to cross-examine the complainant and his brother-in-law Ravinder Singh but neither the complainant appeared nor he produced his brother-in-law Ravinder Singh. The perusal of the Court file reveals that this application was dismissed as withdrawn by this Commission vide order dated 5.9.2001. Therefore, the respondents cannot draw any benefit for non- appearance of the complainant for cross-examination.
83. On the other hand, the written reply has been filed by the respondents by way of affidavit of respondent No.3. Respondent No.2 has not even filed his own affidavit in support of the pleas taken in the written statement.
84. The complainant has alleged that the age of his wife was 55 years and she was serving in Sri Guru Teg Bahadur Hospital, Amritsar. The respondents have taken the plea that the age of the patient was more than 58 years as she had retired from the Government service. The complainant admitted in the replication that the age of the patient was 58 years and it was a typographical error by which her age was typed as 55 years. The complainant himself had mentioned in the complaint that she had retired from government service. Therefore, we believe that the age of the patient was more than 58 years and it was a typographical mistake by which the age of the patient was shown as 55 years.
85. The next submission of the learned counsel for the respondents was that the complainant had filed a complaint about the death of his wife to certain other authorities like CMO, SDM and also to the police. The respondents also say that the record was made available by the respondents to the CMO, to the SDM and also to the police but the respondents were found to be innocent as no action was taken against them. However, the respondents have not placed on the file any order passed by any of these authorities to the effect that the respondents were Consumer Complaint No.37 of 2000 29 innocent. Moreover, the death of the patient had taken place on 27.9.1999, legal notice was served on them on 30.10.1999 (Ex.C6) and the complainants had filed this complaint on 8.5.2000 i.e. merely after the expiry of about 7-8 months. Therefore, the medical negligence is to be determined in this case by this Commission independently particularly when the reports of innocence allegedly found by other agencies have not been placed on the file by the respondents.
86. When the complainant pleaded that a sum of Rs.5000/- was taken by the respondents in advance for the purpose of surgical operation, the respondents have pleaded that "Opposite Parties No.1 and 2 did not take any money at all. Infact, the same is required to be deposited in the office". If the money is deposited in the office of the respondent hospital how does it make a difference? Is it not taken by the respondent hospital? It is the office of the respondent hospital which takes the money. Is the office of respondent hospital independent of the respondent hospital?
87 Even otherwise, the respondents have placed on the file the patient's record as Ex.R1. It is specifically mentioned (at page 57) that a sum of Rs.5000/- was taken from Janak Kumari patient by the respondent hospital on 26.9.1999 in advance. It is very surprising that at page 58 of Ex.R1, it is recorded that an amount of Rs.3000/- was refunded on 27.9.1999. It is neither pleaded in the written statement that the amount of Rs.3000/- was refunded to the complainant on 27.9.1999 nor it is generally done. It is also not clear as to whom this amount of Rs.3000/- was refunded because the alleged initials on this receipt do not tally with the signatures of the complainant on the complaint. This entry appears to have been forged by the authorities of the respondent hospital. If the conduct of the respondent hospital was fair and normal, there was no necessity for them for forging this entry.
88. So far as the amount of compensation is concerned, the patient was a qualified staff nurse. She had rendered service in a Government hospital even according to the respondents. She had retired at the age of 58 years. She was Consumer Complaint No.37 of 2000 30 getting pension. She has left behind her husband namely the complainant and her 4 children i.e. two daughters and two sons (in para 22 of the complaint). Although the void created by the death of Janak Kumari patient cannot be filled by any amount of compensation but still the compensation cannot be denied on that ground alone. The complainant has prayed for compensation amount of Rs.16 lakhs but this claim appears to be highly exaggerated. Keeping in view the age of the patient as also her qualification and experience as also the dependence of her husband and her children which the patient has left behind her, the compensation is assessed at Rs.5 lakhs.
89. The complainant would also be entitled to costs of proceedings which are assessed at Rs.20,000/-.
90. The respondents would be liable to pay the amount of compensation and costs jointly and severally.
91. Accordingly, this complaint is accepted in terms stated above.
92. The arguments in this complaint were heard on 13.10.2010 and the order was reserved. Now the order be communicated to the parties.
(JUSTICE S.N.AGGARWAL) PRESIDENT (LT.COL.DARSHAN SINGH(RETD.) MEMBER (AMARPREET SHARMA) MEMBER October 18, 2010.
Paritosh