National Consumer Disputes Redressal
Usha Devi & 6 Ors. vs Sudama Fracture Clinic & 2 Ors. on 11 November, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1272 OF 2016 (Against the Order dated 29/06/2016 in Complaint No. 16/2011 of the State Commission Uttar Pradesh) 1. SUDAMA FRACTURE CLINIC & ANR. ...........Appellant(s) Versus 1. USHA DEVI & 7 ORS. 2. DR.B.K. TIWARI ( ANESTHETICS ) C/o CMO Office, Kabir Nagar,Varanasi-221005, Uttar Pradesh 3. DR. BASANT KUMAR TIWARI VILLAGE & POST PACHOKHAR,DISTRICT-GAJIPUR, U.P. ...........Respondent(s) FIRST APPEAL NO. 1639 OF 2016 (Against the Order dated 29/06/2016 in Complaint No. 16/2011 of the State Commission Uttar Pradesh) 1. USHA DEVI & 6 ORS. R/O. B-27/34-D-32, RAVINDRAPURI EXTENSION COLONY, DURGA KUND, VARANASI (UTTAR PRADESH) 2. MRS. PURNIMA PRABHAKAR R/O. B-27/34-D-32, RAVINDRAPURI EXTENSION COLONY, DURGA KUND, VARANASI (U.P) 3. ASHISH CHANDRA PRABHAKAR R/O. B-27/34-D-32, RAVINDRAPURI EXTENSION COLONY, DURGA KUND, VARANASI (U.P) 4. MR. NAVNEET CHANDRA PRABHAKAR R/O. B-27/34-D-32, RAVINDRAPURI EXTENSION COLONY, DURGA KUND, VARANASI (U.P) 5. MR. ABHISHEK CHANDRA PRABHAKAR R/O. B-27/34-D-32, RAVINDRAPURI EXTENSION COLONY, DURGA KUND, VARANASI (U.P) 6. MR. AVANISH CHANDRA PRABHAKAR R/O. B-27/34-D-32, RAVINDRAPURI EXTENSION COLONY, DURGA KUND, VARANASI (U.P) 7. MR. ANAND CHANDRA PRABHAKAR R/O. B-27/34-D-32, RAVINDRAPURI EXTENSION COLONY, DURGA KUND, VARANASI (U.P) ...........Appellant(s) Versus 1. SUDAMA FRACTURE CLINIC & 2 ORS. THROUGH ITS OWNER DR. BINOD KUMAR, RAVINDRAPURI EXTENSION, IN FRONT OF ICICI ATM LANE, DURGAKUND, VARANASAI 2. DR. BINOD KUMAR, MBBS D. ORTH. SUDAMA FRACTURE CLINIC, RAVINDRAPURI EXTENSION, IN FRONT OF ICICI ATM LANE, DURGAKUND, VARANASAI, U.P. 3. DR. BK. TIWARI (ANESTHETICS) C/O. CMO OFFICE, KABIR NAGAR, VARANASI-221005 4. DR.BASANT KUMAR TIWARI VILLAGE & POST PACHOKHAR, DISTRICT-GAJIPUR, U.P. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT HON'BLE MR. BHARATKUMAR PANDYA,MEMBER FOR THE APPELLANT : FOR SUDAMA FRACTURE CLINIC & DR. BINOD KUMAR/SURGEON : MR. B.S. SHARMA, ADVOCATE MS. DEEPINDER KAUR, ADVOCATE FOR USHA DEVI & ORS./COMPLAINANTS : MR. MADHURENDRA KUMAR, ADVOCATE MR. S.N. SINGH, A/R FOR THE RESPONDENT : FOR DR. B.K. TIWARI/ANESTHETIST : NONE Dated : 11 November 2024 ORDER PER A.P. SAHI, J., PRESIDENT These two appeals have been filed arising out of the same order passed by the SCDRC Uttar Pradesh, Lucknow (hereinafter referred to as the State Commission) in a medical negligence claim filed by the heirs of late Shri Avadhesh Chandra Prabhakar alleging negligence on the part of Dr. Binod Kumar running Sudama Fracture Clinic.
On 15.09.2010 late Mr. Prabhakar, who was working as a Chief Booking Clerk at Varanasi Cantt Railway Station, while on training at the Indian Railways Regional Training Institute, Chandausi, U.P. between 13.09.2010 to 18.09.2010, suffered a fall as he slipped during the training and injured his right elbow and right wrist reportedly with a fracture.
The patient was taken to the Central Railway Hospital, Chandausi. After x-ray and primary treatment he was advised for further medical treatment at Varanasi, U.P. On 20.09.2010 he visited Sudama Fracture Clinic where he was examined and advised by Dr. Binod Kumar, and after x-ray reports were prepared, a surgery was planned for his right elbow followed by plaster. The pre-assessment as well as pre-anesthetic tests before surgery were undertaken. The pathology tests were also carried out and on 21.09.2010 he underwent preparations for the surgery and was taken to the operation theatre by Dr. Binod Kumar who is an Orthopedic surgeon. According to the complainants (appellants in FA/1639/2016 and respondents no. 1 to 7 in FA/1272/2016), the patient was taken to the operation theatre at about 2.00 O'clock in the afternoon and between 4.00 to 4.30 p.m. the complainants found Dr. Binod Kumar coming out of the operation theatre alongwith his associates informing the complainants that the condition of the patient was serious and he had to be immediately shifted for advance treatment to Sir Sundar Lal (SSL) Hospital, BHU, Varanasi. A reference slip was handed over to the attendants and late Mr. Prabhakar was dispatched by an ambulance to the SSL Hospital, BHU where the attending doctor of the Emergency Ward found him dead and informed the complainants that he was brought dead.
An FIR was lodged on the same day itself at Police Station Bhelupur, Varanasi registered as Crime No. 319/2010 under Section 304A IPC and inquest and panchnama was prepared and the body was sent for postmortem. The postmortem report dated 22.09.2010 revealed that the cause of death of the patient was due to Traumatic asphyxia caused by closed Chest injury and hemorrhages causing Head injury.
After the postmortem was conducted and the report given, the concerned Police Officer carrying out the investigation requested for the constitution of a Medical Board. The concerned Investigating Officer Om Prakash Singh made this request/report on 06.12.2010 after having recorded the statement of Dr. Vivek Awasthi who had performed the postmortem. The said request has been translated by the opposite parties no. 1 and 2 in their appeal (FA/1272/2016) which is extracted hereunder:
"Today I contacted Dr. Vivek Awasthi on his Mb No. 9839641002, the person who conducted post mortem and determined the time of his statement and arrived at his nursing Home Upkar Dr. Awasthi met me and the statement is being recorded.
Statement Doctor when Dr. Vivek Awasthi Dindayal Hospital Varanasi was asked about the post mortem report of the deceased Abdthesh Chandra Prabhakar conducted on 22/09/10 and was asked about the seriousness of past mortem report Dr. Vivek Awasthi stated that I am posted in Dindayal Hospital and on 22/09/10 I was on duty in mortuary House V.H.V for examination of Dead body on the same day I examined the dead body of the deceased Awadhesh Chandra Prabhakar and Prepared his post mortem report if you supply me the copy of post mortem report I shall make my statement with regard the examination of dead body because it is not possible to recall it the photocopy of post mortem report no. 1620/10 dated 22/09/10 was made available to Dr. Vivek Awasthi thereafter the Dr. Stated about the examination of the dead body that the number of Anti Mortem injury is four in the post mortem report.
1. After opening the skull it was found that there was a Contrusion of 6 C.M. X 5 С.М. in the Temporo pairayral Region whereas there was no visible out side injury.
2. On the upper part of right hand about 19 C.M. away from the joint of soulder there was a contusion of 7 X 6 CM which was deep up to cell and which was possibly due to fall in training period.
3. On the joint of right elbow therefore was 11 X 05 Bone deep which was with olly Cranen prosess fracture.
4. On seeing the chest after opening it was found that there was a contusion of 9 X 7 C.M. inside which was bellow 7 C.M. from the joint of soulder and the bones of chest was fractured from number 2 to 6 and there was contusion whereas there was no sign of visible injury from outside.
Dr. Awasthi stating in details stated further that the bones of scull was well and the cells of brain was conjusted and there was a sub duyaral hamarage is in the right temporo practice area the brain of the deceased was conjusted and there was Areknaide Hamarage on the whose brain which was more visible on the right side. Sub Areknaide and sub Dural hamrage remain in less poseblity and the fresno can remain normal and when they increases the person suffers from deceases Since pragthik Jhilli was found in both the kidney of the deceased which is found in the patient suffering from hyper tension for long time it may be possible that the blood pressure of the patient was increased immediately before operation as a result of which the blood circulation of the brain increased as a result of which there was fracture in the bones of chest from number 2 to 6 and 600 ml blood was clotting in the being and there was liquid material. This injury was perhaps of the same time when the deceased fell down and hair line fracture pertains to the same limo. When cardiopulmonary resuseitation was given then the fracture might have increased and the bones of chest might have got fractured which might created this injury and at the same time 3 to 5 brackets of brain were torn the right lung of the deceased was conjusted and there was a puncture in the middle part of lung. Since clotted blood was found in the lung, therefore, it seems that this injury was fresh stating this fact Dr. Awasthi Supported the conduction of post mortem.
Question Please tell me the duration of injury which was received before death mentioned in the P.M. Ans: the duration of the injury cannot be told because this fact cant be told seeing the colour of injury before death but it cannot be determined after death.
Sir, according to P.M. report of deceased Awdhesh Chandra Prabhakar and on the basis of the statement the complainant the injury which the deceased received during the training at Chandausi was in the right elbow and the injury which has been shown in the P.M. report are also almost in the right side it may be possible that these injury pertains to the time when the deceased fell down during the course of training and got injury in his right elbow.
Accordingly to the statement of the complainant apart from the injury of elbow no mention of injury was made before operation. If the injury pertains to that time why did the deceased not realized it and why the patient not mentioned about that before the doctor before operation.
These are such proofs without proper solution of which the proper disposal of case is not possible.
For successful disposal of the case the constitutions of Medical Board in essential for which application is being sent to DIG of police Carbon Copy of which being sent to D.C. Sir, with regard to the case the written answer to some questions give by Dr. Vinod Kumar Malik who treated the deceased Sudama fracture clinic Ravindra puri Varanasi the Carbon Copy of which is being sent to D.C."
On the said request, the Dy. Inspector General (DIG) of Police, Varanasi constituted a Medical Board which met and gave its opinion on 06.01.2011 which is extracted hereunder:
"Meeting No.13 With Reference to letter no. Reader/DIG-13/2010 dated 26 December 2010 of DIG Varanasi Meeting of Medical Board has been organized at 11:30 Am on 06/01/2011 on Post Martom report of the deceased Abdhesh Chandra Prabhakar dated 22/09/10 being post mortom no. 1620/10. In which the following Members participated.
1. Dr. R.P. Tiwari Additional Chief Medical Officer.
2. Dr. Dayanand Prasad Orthopedic surgeon Bhelupar Varanasi Hospital.
3. Dr. Α.Κ. Sharma (physician) S.V.M, Hospital Bhelupur Varanasi Hospital U.P.
4. Dr. Viek Awasthi the person conducting post Mortam of the deceased Avdesh Chander Prabhakar of the post mortam report has been studied by the members of the above mentioned board of Doctor's_____ After the analysis of post martom report the Board has decided to include one other surgan in this Board to take expart opinion of the surgan. Dr. O.P. Singh (Surgan) of pandit Din Dayal Upadhyay state Hosptial Varanasi have been invited in the above said Doctor Board. The Meeting of the Board was again started at 2:30 PM. in which the above named Surgan also joined the board meeting. The Board discussed post Martom no. 1620/10 dated 22/09/10 which belonged to deceased Abdhesh Chandra Prabhakar. After analyse the post mortem report the Board has reached at the decision that the deceased has got injury on the right side of his head with right side of his chest and one Olecrenon fracture with contusion in right elbow in deceased body before operations.
In the opinion of the Board the deceased might have respiratory problem due to head injury and for which CPR cardiopulmonary Resuscitation) might have been done.
Due to which already injured ribs resulted into Lung got punctur and the Blood was clotted in the right side of lung.
Therefore, the possible cause of death is Asphyxia generating from Head injury alongwith closed chest injury.
1.Dr. Dayanand Prasad, Orthopedic Surgan
2. Dr. A.K. Sharma (physician)
3. Dr. O.P. Singh (Surgen)
4. Dr. Vivek Awasthi the person conducting post mortem
5. Pandit Dindayal Upadhyaya Varanasi Hospital
6. Dr. R.P. Tiwari.
Additional Chief Medical Officer."
Dr. Awasthi had also participated in the said deliberations who had conducted the postmortem.
The complainants then filed the complaint (CC/16/2011) giving rise to the present appeals in February, 2011 before the State Commission alleging medical negligence against the opposite parties (Sudama Fracture Clinic, Dr. Binod Kumar, the surgeon, and Dr. B.K. Tiwari, the anesthetist).
The complainants also filed a complaint before the State Medical Council of U.P. and after due deliberations the State Medical Council passed an order on 01.08.2011 indicting Dr. Binod Kumar, the surgeon, as well as Dr. B.K. Tiwari, the anesthetist. The order passed by the Medical Council is extracted hereunder:
"Uttar Pradesh Medical Council 5, Sarvapally, Mall Avenue Road, Lucknow RECOMMENDATION OF ETHICAL COMMITTEE Complainant Smt. Usha Devi 32-A, Ravindrapuri , Extension, Bhelpur, Varanasi.
Respondent Dr. Binod Kumar, Sudama Fracture Clinic, Ravindrapuri Extension, Infront of ICIC) ATM Lane, Durgakund, Varanasi
Complaint against Dr. Binod Kumar, Sudarna Fracture Clinic, Ravindrapuri Extension, in front of 1.C.I.C.I. ATM Lane, Durgakund, Varanasi, alleged by Smt. Usha Devi, 32-A, Ravindrapuri Extension, Bhelpur, Varanasi received by this office through Medical Council of India, New Delhi.
Complainant Smt. Usha Devi has alleged that her husband (Late)Mr. Avadhesh Chandra Prabhakar slipped in the training campus on 15.09.2010 resulting in fracture in Right Elbow & Injury in Right Wrist. (Late)Mr. Avadhesh Chandra Prabhakar was taken to Northern Railway Hospital, Chandausi where he was advised X-Ray of Rt. Elbow & Wrist.X-Ray were done on 15.09.2010. at Krisnna X-Ray, Bahjoi Road, Chandausi.
On 16.09.2010 (Late) Mr. Avadhesh Chandra Prabhakar was taken to Northern Railway Hospital, Chandausi together with X-Ray plates wherein the treating doctor gave primary treatment, dressing & medication as the patient had to go back to Varansi after 2 days, advised to take further medical treatment at Varanasi. Meanwhile patient attendant a training camp of Railway for three more days and obtained success to certificate. He kept well during this period.
In the morning of 20.09.2010 (Late)Mr. Avadhesh Chandra Prabhakar visited Sudama Fracture Clinic owned by Dr. Binod Kumar. Dr. Binod Kumar examined (Late)Mr. Avadhesh Chandra Prabhakar and the X-Ray plates. After examination of (Late) Mr. Avadhesh Chandra Prabhakar Dr. Binod Kumar advised that a small operation in right elbow shall be done followed by plaster. For operation certain tests & medication were advised.
After the pathological test patient was admitted as indoor patient in Sudama Fracture Clinic and planned for operation on the 21.09.2010.
On 21.09.2010 at about 2 p.m. (Late)Mr. Avadhesh Chandra Prabhakar was taken to the operation theatre. The health & condition of (Late) Mr. Avadhesh Chandra Prabhakar was stable before surgery as per statement of Dr. Mahendra Kumar Jaiswal, Physician of Sudama Fracture Clinic, Varanasi. Between 4-4:30p.m. Dr. Binod Kumar together with his associate came out of the operation theatre and informed attendant the condition. of Mr. Avadhesh Chandra Prabhakar has become serious during operation and refer to S.S.L., B.H.U., Varanasi. In emergency ward of S.S.L. B.H.U. seeing Mr. Avadhesh Chandra-Prabhakar declared him dead. Provisional Death Certificate issued by Sudama Fracture Clinic -
"Certified that Avadhesh Chandra Prabhakar aged about 46 yr, male s/o Late Sri Ramnath Chandra Prabhakar R/o Ravindrapuri Extension, Varanasi having Olecranous Fracture (Rt) Elbow. He was admitted in this hospital on 20.09.2010.The patient expired on 21.09.2010 at 4.30p.m. due to Cardio Respiratory Fallure in spite of all resusutative measures taken.
In post mortem report dated 22.09.2010 states-
Ante Mortem Injuries
1. On opening Scalp Contusion 6cm x 5cm in Temporal Parital Region on Rt. Side.
2. Contusion 7cm x 6cm over Right Arm 19 cm Below the tip of shoulder which is found muscle deep (On cutting)
3. Incised wound 11 cm x 0.5 cm bone deep with evidence of comminuted # of Rt. Olecranous process with, contusion.
4. On opening chest wall Rt side on Outer & Back aspect contusion founding an area of 9 cm x 7 cm. it is 7 cm posterior back of axilla on Rt. Side # with contusion found on 2-6 ribs.
Ethical Committee has noted
1. The statement of physician Dr. Mahendra Kumar Jaiswal who did the pre-operative check up where patient has only fracture on Rt. Elbow & Rt. wrist only. There was no complaint of other injuries.
2. Assessment of Ante Mortem reports also supports that all injuries happens during operation time 2 to 4:00 p.m.
3. Pre operative Anesthetist check-up also supports that patients has no disease in any system or organ except, Fracture in Rt. Elbow & wrist. His X-Ray chest was NAD as seen by Physician and anaesthetist.
Ethical Committee has come to the conclusion that-
Patient Shri Awadhesh Chandra Prabhakar was having only fracture of the Olecranous Process and Wrist of the right side. For the injury number one he has taken for the surgery in the Operation Theatre.
Patient had no other injury except mentioned above Physician and the Anesthetist who has done Pre Anesthetic Check-up categorically that patient X-Ray chest was clear and there was no fracture'in the Ribs. Patient haş also not reported any other injury on the body. It seems that Patient had developed some problem after the anesthesia was initiated, and the CPR has been attempted. Dr.B.K.Tiwari was manipulating Boyle's Trolly and Dr. Binod Kumar started chest compression from where the was standing. As he was standing to the right side of patient operating right Olecranous process he forcefully compressed chest in order to resume respiration and during the course 2 to 6 Ribs of the right side fractured and the patient might have fell down and sustained injury on the Scalp and right side of shoulder. Post Mortem reported intact, and this injury reported cause of death was "Mr. Avadhesh Chandra Prabhakar died due to Traumatic Asphyxia as a result of closed chest injury with evidence of sub dural and sub arehnoid hemorrhage due to head injury."
Ethical Committee also noted that it is a possible complication of Anesthesia for which Resusutation has been attempted. Dr. Binod Kumar probably act in haste to provide CPR and due to that patient sustained injury which leads to death.
Decision Dr. Binod Kumar Reg. No. 36381 Dated 29.10.1992 amd Dr. B.K. Tiwari Reg No. 29939 has found guilty of misconducting gross medical negligence though he is qualified Orthopedic Surgeon. It is recommended-
1. Dr. Binod Kumar Reg. No. 36381 and Dr. B.K. Tiwari Reg No. 29939 should be removed from the Medical register of U.P. Medical Council for the period of 1 months.
2. Dr. Binod Kumar will do ATLS course from AIIMS, New Delhi and provide certificate to the Council.
Registrar Medical council shall put this report in the Governing Body Meeting of U.P. Medical Council for accomplishment.
Registrar U.P. Medical Council"
Against the said order, the surgeon Dr. Binod Kumar filed an Appeal before the Medical Council of India.
In the meantime, the complaint filed before the State Commission was disposed of ex-parte on 20.10.2011, awarding a compensation of Rs.14,00,000/- and litigation costs of Rs.20,000/- in favour of the complainants. Against the said order, two appeals were filed before this Commission, FA/30/2012 by the doctor and the clinic and FA/118/2012 by the complainants. Vide order dated 13.02.2015 both the Appeals were disposed of and the matter was remanded back to the State Commission for decision on merits after obtaining written statement from the opposite parties subject to costs of Rs.50,000/- to be paid to the complainants. The said order is on record as Annexure A/12. It has been stated by the counsel for the complainants that 50% of the decretal amount was deposited at the time of filing of the appeal before the State Commission.
The appeal filed by the doctor before the Medical Council of India was not entertained as being time barred vide order dated 12.03.2015.
Aggrieved by the said order as well as the order passed by the U.P. State Medical Council referred to hereinabove, Dr. Binod Kumar filed Writ Petition No.60909/2015 before the High Court of Judicature at Allahabad and the said Writ Petition was dismissed on 03.11.2015. Thus the order of the U.P. Medical Council dated 01.08.2011 remained intact.
With all this in the background the complaint proceeded before the State Commission and after assessing the evidence on record as well as having appreciated the submissions raised, the complaint was finally allowed on 29.06.2016 calling upon Dr. Binod Kumar and Dr. B.K. Tiwari to jointly and severally pay a sum of Rs.33,00,000/- as compensation and also directing that in the absence of any payment within three months, the same would invite interest @ 9% per annum. It was further directed that the amount of Rs.20,00,000/- out of the said amount shall be paid to the widow Smt. Usha Devi and the balance of Rs.13,00,000/- shall be distributed amongst all the other six complainants equally. Rs.5,000/- was imposed as costs.
Challenging the said order, it is the clinic and Dr. Binod Kumar who have filed FA/1272/2016 whereas the anesthetist Dr. B.K. Tiwari has been arrayed as respondent no.8 who has not filed any appeal.
The complainants have preferred FA/1639/2016 praying for enhancement of the amount awarded and further praying for interest @ 18%.
Both the appeals have been heard together. Mr. B.S. Sharma has advanced his submissions in FA/1272/2016 filed by the clinic and the doctor and Mr. Madhurendra Kumar has appeared for the respondents therein. Mr. Madhurendra Kumar has also appeared for the appellants in FA/1639/2016 filed on behalf of the complainants where the matter has been defended by Mr. B.S. Sharma on behalf of the clinic and Dr. Binod Kumar.
The facts relating to the treatment having been given by Dr. Binod Kumar at his clinic, namely, Sudama Fracture Clinic is not in dispute where the surgery was planned to be undertaken on 21.09.2010. The record of the clinic from the date of the admission i.e. 20.09.2010 till the date of his discharge on 21.09.2010, which has been filed as annexure A/8, and the notes of the anesthetist, indicate the progress during the operation and the timeline thereof. The same is extracted hereunder:
"NAME AWADHESH CHANDRA PARBHAKER DOA 20/09/10 8:00PM AGE/SEX 45Y/M DOO 21/09/2010 CONSLTANT. DR. BINOD KUMAR
HISTORY ALEGED FALL 2 DAYS BACK INJURY IN ELBOW (RT) AND (RT) WRIST X RAY ELBOW AP LATRAL WRIST AP LATREL FRACTURE OLICARNAN PROSSES EXAMINATION PLUSE 70/M RESPIRATION 18/M BP 150/90 MM HG TEMPRATURE NORMAL CHEST HURT CLINICALI NAD ABDOMEN SOFT SPLINE LIVER NOT PULPABLE BLOOD EXAMINATION HEMOGALOBINE 11.6 mg TOTAL LIMPHO SITE COUNT 8000 cubic mmNUTROPHIL 53 LIMPHOSITE 35 SYNSTIA 11 MONOSITE 01 BT 3/M CT 6/M RANDOM BLOOD SUGAR 151.8 SYRUM CREATINE 0.9 TREAT MENT RONIFLAM 1 TAB 8 HOURLY OFLOXACIN 200 ML. 12 HOURLY B PLEX FORTE I TAB DALY AMLODIPINE I TAB DALY ALPARAZOLAM .5 MG 1 TAB DALY ADMISSION FOR TENSON BAND WIRING CARDIO RESPAIRETRY ASSESMENT BY PHYASION ON 20/09/10 10 AM PRE ANESTHETIC CHEK DONE BY ANESTHESIOLOGIST GENERAL CONDITION FAIR CENTARAL VENUS SYSTEM CHEST WITHEN NORMAL LIMIT INVESTIGATION WITHEN NORMAL LIMIT ADVICE ING GLICO PARALATE 1 AMP 1 HOUR BEFORE OPRATION NIL ORALY SCIENCE 8 AM.PREPARATION OF THE PART IV DRIP 1 BOTELS AT I PM ING, GLAYCOPARLET 1M AT 1 PM.
ANESTHESIA NOTE 2 PM PATAINT AWDHES CHANDRA PARBHAKAR AGED 46 YEAR TAKEN OT WITH DIGNOSIS OF FRATURE OLICARENAN PROSSES RIGHT ELBOW FOR TAINTION BAND WIRING PLSU 84/M BP 130/80 RESPIRATION 18/M NO PALLOR NO ICTRUS ECG WITHIN NORMAL LIMIT PRE ANESTHETIC MEDICATION ING. ONDEM CETRON 4 MG IV ING EBACT IV OFFER SKIN SYNITATION PATIENT EVALUATED OFFER 15 MINUTE OXIGINATED BY BAINZ CIRCUIT WITH 8 Lt. OF OXIGEN/M BY TRIOPENΤΟΝ 2.5?% +250Mg+SCOLING ENTUBATION DONE BY 7.5Mg INDOTRACIAL TUBE PROPER CHEKING OF VENTILATION. MAINTENED BY 02 4 LITTER +N20 6 Lt. +HAILOTHINE.
PATATENT FOUND SPONTENIOUS VENTILATION OPRATITION STARTED AT 220PM. CONTUNISALY MONITOARING PULSE BP SPO2 DONE PLUSE 84/M BP 120/80MG SPO2 98% 3 PM PATATENT DEVLOP HYPER RESPONCIV AIRWAYS RESPONSE WITHBRONCOSPON AND PROFUSE SYCRITION WITH FROOTHING IN MOUTH.
PLUSE 120/M SPO2 85% BP 100/60 SECRITION WAS SUCKED BY SUCTION CATHETER THROUGH INDRATRYICIAL TUBE AND MOUTH T. PATENT OXIGEN FALL DOWN TO 70%.
3.05 PM INJ. PRIMA CORT 100ML.GIVE IV. INJ. DERIPHAYLNE 1 AMP. IV. INJ. LAXIS 1 AMP. IV. CONTINOUS OXIGEN BY IPPV. AND HALOTHENE WAS STOP.
SPROZE NOT IMPROVE.
INJ. ADRENALINE 1:1000 IV.
INJ. DEXONA I ML. IV. GIVEN, AMINOPHILINE 10 ML. IV. DILUTED IN 100 ML. GIVEN SLOWLY PATAINT NOT IMPROVE.
PLUSE 100/M. SPO2. 68% BP 90/60.
3.20 PM. PATAINT SEND TO EMARGANCY DEPARTEMENT IML BHU. BY AMBULANCE WITH AMBU BAG CONNECTED WITH OXIGEN CILENDER.
Dr. B.K. Tiwari"
The said summary records that there is no abnormality detected in the chest and the abdomen at the time of admission and before surgery. The blood examination report also does not indicate any abnormality. There is nothing to indicate any other injury apart from the injury on the right elbow and the right wrist of the deceased. There were no other symptoms indicated of any pre-existing injury except the fracture injury referred to above. The chest area was normal. After administration of anesthesia, the patient's condition seems to have disbalanced. He was rushed to the BHU Hospital where he was found to have been brought dead.
The patient suddenly collapsed and suspecting negligence an FIR was lodged by the complainants. The postmortem report dated 22.09.2010 is extracted hereunder:
"Post Mortem Examination no. 1620 Place: IMS, Varanasi Date: 22.9.10 Time: 2 p.m. Police: CP 1023 Rajmani Singh HG 1286 Panj Kumar Pandey P.S. Bhelupur, Varanasi Identification of Body done No. 1620/10 General Age: 46 years After death possible symptoms: About ¾ days External Examination: Seal found intact on opening the body of Young adult male, average built, sic
1. Physical status relating to Muscularity, Stoutness, emaciation, rigor mortis, decomposition: nominated, eyes closed, mouth partially sic, rigor mortis present all over the body, veriflon present at left sic
2. Identification mark specially in case of unidentified body:
Ante Mortem Injuries
1. ON OPENING SCALP CONTUSION 6 cm x 5 cm IN TEMPORAL PERITAL REGION ON RIGHT SIDE
2. CONTUSION 7 cm x 6 cm OVER RIGHT ARM 19 cm BELOW THE TIP OF SHOULDER WHICH IS FOUND MUSCLE DEEP (ON CUTTING).
3. INCISED WOUND 11 cm x 0.5 cm BONE DEEP WITH EVIDENCE OF COMMUNITTED # OF RIGHT OPERATION PROCESS WITH CONTUSION.
4. ON OPENING CHEST WALL RIGHT SIDE ON OUTER AND BACK ASPECT CONTUSION FOUNDIN AAN AREA OF 9 cm x 7 cm. IT IS 7cm POSTERIOR BACK OF AXILLA ON RIGHR SIDE # WITH CONTUSION FOUND ON 2-6 RIBS.
HEAD AND NECK Bones of Scalp or Skull: NAD MEMBRANES CONGESTED, SUBDURAL HEMORRHAGE AT RIGHT TEMPOROPERITAL AREA. BRAIN
CONGESTED, OEDAMATOUS WITH SUB ARRECHNOID HEMORRHAGE ALL OVER COMPARATIVELY MORE AT RIGHT HAMISPHERE OF BRAIN.
BASE NAD VERTIBRAE NAD SPINAL CORD NOT OPENED ADDITIONAL SPECIAL DETAILS Nil WALLS, RIBS, CARTILAGES SEE INJURY
# OF RIGHT SIDE AT OUTER AND BACK INSPECT FROM 02-06 RIBS WITH RUPTURE OF CORRESPONDING PLEURA.
PLEURA 600 ml LIQUID AND CLOTTED BLOOD PRESENT LARYNX TRACHEA, BRONCHI OVER RIGHT ELBOW HOSPITAL BANDAGE FOUND SOAKED WITH BLOOD (MINOR ASPECT) RIGHT LUNG CONTUSED, PUNTURED AT MIDDLE LOBE AND CONGESTED LEFT LUNG : CONGESTED PERICARDIUM : CONGESTED HEART 290 gms. CHAMBERS FULL. INTERCOASTAL VESSELS RIGHT SIDE 3-5 LACIRATED:
VESSELS NAD
ADDITIONAL SPECIAL DETAILS Nil
ABDOMEN SIC
PERITONIUM CONGESTED
CAVITY CONGESTED
BUCCAL CAVITY NAD
TEETH 15/16
PHARYNX NAD
OESEPHSGUS NAD
STOMACH AND ITS CONTENTS
ALTERED BLOOD150 ml MUCOSA NAD
SMALL INTESTINE AND ITS CONTENTS DIGESTED FOOD
LARGE INTESTINE AND ITS CONTENTS
FAECAL MATTER AND GAS
LIVER WITH WEIGHT 20 gm. CONGESTED
GALL BLADDER FULL
PANCREAS CONGESTED
SPLEEN WITH WEIGHT CONGESTED, 120gm.
KIDNEY WITH WEIGHT
280 gm., CONGESTED, WITH MULTIPLE SIC ON SURFACE SUGGESTIVE OF CHRONIC HYPERTENSIVE FEATURE BLADDER EMPTY SEX ORGANS NAD CAUSE OF DEATH DIED DUE TO TRAUMATIC ASPHYXIA AS A RESULT OF CLOSED CHEST INJURY WITH EVIDENCE OF SUB DURAL AND SUB AREHNOID HEMORRHAGE DUE TO HEAD INJURY."
A perusal of the same indicates collection of 600 ml of blood in the lungs and the right lung was punctured at middle lobe, was contused and congested. 2-6 ribs were fractured. Contusions on the scalp, over right arm and back side of chest were noted. Death was reported due to traumatic asphyxia caused by closed chest injury with evidence of hemorrhage due to head injury. The Investigating Officer after taking the statement of Dr. Awasthi who had performed the postmortem, reported the matter to the DIG. In his report dated 06.12.2010 extracted hereinabove, he has indicated the statement of Dr. Awasthi narrating that the ribs no. 2 to 6 were possibly having a hairline fracture which increased after the CPR was conducted probably when the patient was collapsing inside the operation theatre. The statement also indicates an explanation of the puncture in the lung but at the same time also indicated presence of clotted blood indicating fresh injury. However, on a query by the Investigating Officer about the duration of the injury, he categorically stated that after death it is difficult to indicate the duration. With this doubtful statement, a recommendation was made by the Investigating Officer for constituting a Medical Board. The DIG, Varanasi constituted a Medical Board that deliberated upon it and gave its opinion dated 06.01.2011 extracted above.
The report of the Medical Board has been heavily relied on by the learned counsel for the clinic and the doctor to contend that the report dated 06.01.2011 categorically states that the injuries were prior to the operation and due to head injury a respiratory problem might have developed which required a CPR (Cardio Pulmonary Resuscitation). It is during this process that the previously injured chest area and fractured ribs may have caused lung puncture and blood might have collected in the right lung. The Medical Board therefore opined that the cause of death might have been the combined effect of head injury and closed chest injury causing asphyxia. The said report has already been extracted hereinabove.
The complainants as indicated above had moved before the State Medical Council and vide order dated 01.08.2011, after having examined the postmortem report and the narration of the facts, came to the conclusion that there was no evidence of any injury prior to the operation, except the fracture on the right elbow and right wrist and that the patient had no disease or any other infirmity prior to the operation. It therefore concluded that according to the pre-anesthetic check-up and the x-ray chest which was reported to be clear, there were no injuries prior to the operation and there was no fracture in the ribs. It was also noted that the patient had nowhere reported any other injury in the body and had it been so, there was no reason for the patient to have not disclosed it. The State Medical Council came to the conclusion that the surgeon Dr. Binod Kumar seems to have started the process of CPR forcefully compressing the chest for resuming the respiration and during this course fractured 2 to 6 of the ribs and the patient might have fallen down and sustained injury on the scalp and the right side of the shoulder.
The State Medical Council also concluded that Dr. Binod Kumar probably acted in haste to provide CPR which resulted in the sustenance of the injury.
The State Medical Council insofar as Dr. B.K. Tiwari is concerned opined that the problem had developed after anesthesia had initiated where-after CPR was attempted.
Consequently, both of them were found to be guilty of misconduct of gross medical negligence and accordingly it was directed that the name of Dr. Binod Kumar should be removed from the Medical Register of the Medical Council for a period of one month and the doctor shall also undertake an ATLS course from AIIMS, New Delhi and provide certificate to the Council.
This entire evidence was discussed by the State Commission and it had impleaded Dr. B.K. Tiwari who did not appear to contest the complaint. As noted above, Dr. B.K. Tiwari has not filed any appeal before this Commission. After going through the evidence and the submissions, the State Commission analyzed the postmortem report, the report of the Medical Board constituted by the DIG as well as the order passed by the State Medical Council and came to the conclusion that the opinion as recorded by the Investigating Officer of Dr. Vivek Awasthi as also the report of the Medical Board constituted by the DIG were incorrect regarding inferences of existence of ante-mortem injuries. It has been held that no such injuries were caused on 15.09.2010 when the deceased had fallen and slipped during training except the fracture in the right hand for which he had gone to the doctor at Varanasi for treatment. The opinions have been held to be biased and not founded on the correct appreciation of facts.
The State Commission has further recorded that the State Medical Council of U.P. in its order dated 01.08.2011 has arrived at the correct conclusion and was more reliable in the background that the appeal filed against it before the Medical Council of India was not entertained and the Writ Petition filed challenging the same has been rejected.
The State Commission has held that the deceased patient had been carried into the operation theatre in normal condition for a small operation of the right elbow but after being administered anesthesia by Dr. B.K. Tiwari, he suddenly seems to have collapsed. There was no one else in the operation theatre apart from these two doctors and their staff, if any, and hence they were in exclusive control and custody of the deceased patient who after the administration of anesthesia and the patient being treated with CPR seems to have sustained the chest and scalp injuries. The respiratory problem seems to have developed midway during the procedure of surgery which has been noted by Dr. B.K. Tiwari in his report indicating 'Hyper Responsive Airways Response' with frothing and bronco spasm. It is also indicated in his report that he tried his best to manage the problem and cardiac massage was given for reviving the heartbeats. Consequently, the State Commission came to the conclusion that it is this exercise that was undertaken negligently which resulted in the death of the patient, hence negligence was established.
While calculating the quantum of compensation it was found that the deceased was 46 years old and was serving in the Indian Railways then earning a salary of Rs.25,907/-. This loss came to about Rs.43,52,376/- upon a calculation of 14 years of service left at the time of his death. Applying the principles of deduction under the Motor Vehicles Act the same was calculated at Rs.29,00,000/- with Rs.2,00,00/- under the head of future prospects. A sum of Rs.2,00,000/- was further awarded on the head of mental pain and agony and consequently a sum of Rs.33,00,000/- was awarded in total out of which the distribution was directed as already noted hereinabove.
As noted above, the clinic and the doctor have come up in FA/1272/2016 and Mr. Sharma on their behalf has urged that the State Commission has committed an error by rejecting the Medical Board report which is binding and which clearly indicates that the injuries were pre-existing which the deceased had suffered after a fall on 15.09.2010 at the time of his training. He submits that there was no evidence to construe that the injuries were sustained during the CPR administered to the deceased and the conclusion drawn by the State Medical Council that the deceased might have fallen causing head and scalp injury is a mere speculation and is based on surmises and conjectures. He therefore submits that the complaint ought to have been dismissed as no medical negligence had been established on the basis of the material on record.
On the other hand, learned counsel for the complainants Mr. Madhurendra Kumar has urged that the order of the State Medical Council is creditworthy and the learned counsel has cited the order passed by the Apex Court in the case of Harnek Singh and Ors. Vs. Gurmit Singh and Ors., (2022) 7 SCC 685. Paragraphs 26 to 34 have been relied on coupled with paragraphs 35 to 37 thereof to urge that the opinion and the findings of the State Medical Council which has not been interfered with deserve to be treated as final as the Medical Council is a statutory regulator that has assessed the evidence and being a medical expert has arrived at the correct conclusion.
We have considered the submissions raised and before we delve into the findings to be recorded by us, it would be apt to refer to the judgment of the Three Judges' Bench of the Apex Court in the case of Jacob Mathew Vs. Stae of Punjab and Anr., (2005) 6 SCC 1 where paragraphs 18 to 33 have been devoted to negligence by professionals and the guidelines to be observed for any forum trying a case of medical negligence in any jurisdiction.
The issue of medical professionals in criminal law has been dealt with by the Apex Court separately together with criminal negligence cases and then the Apex Court has recorded its conclusions in paragraph-47 and summed it up in paragraph-48 of the said judgment.
Certain guidelines were laid down which have been discussed in paragraphs 50 to 52 in respect of lodging of criminal cases.
Nonetheless, for the purpose of the present case where the issue is of negligence being actionable under the law of Torts, it would be appropriate to extract paragraph-48 and its sub-paragraphs of the judgment in Jacob Mathew (Supra) for reflecting on the controversy at hand. The same is extracted hereunder:
"48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused 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. 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 the medical profession necessarily calls for a treatment with a 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. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. 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.
(4) The test for determining medical negligence as laid down in Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] , WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out in para 19, p. 19 herein.]] holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word "gross" has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly".
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."
In the instant case, it is evident from the hospital notes from 20.09.2010 to 21.09.2010 filed as annexure A/8 and quoted hereinabove that the patient did not have any chest injury and the general condition was fair as reported by the anesthetist. The chest conditions were within normal limits. Accordingly, if the respiration assessment made by the concerned physician and the anesthetist was normal and there was no medical evidence regarding the fracture of the ribs or x-ray to substantiate pre-existing injuries that is prior to the surgery, the conclusion drawn by the Medical Board was not correct and has been rightly not believed by the State Commission below. To the contrary, the report of the State Medical Council that has been extracted hereinabove indicates the absence of any injury existing prior to the operation except that of the fracture in the arm.
It appears that after the postmortem report, the concerned Police Inspector made a recommendation on 06.12.2010 and it is from here that the defence of the clinic and the surgeon started improving. The statement recorded by the Police Inspector cannot be more than a statement under Section 161 of the old Cr.PC and therefore is not evidence. However, he succeeded in getting the matter placed before a Medical Board which gave its report on 06.01.2011. This report of the Medical Board also indicates an assumption of pre-existing injuries as if due to the fall during training without there being any proof for the same, except the injury in the arm. The Medical Board states that the ribs may have been fractured earlier and may have caused a lung puncture. This sort of opinion is an assumption against the record without there being any medical evidence of x-ray etc. The inference drawn in the Medical Board report dated 06.01.2011 has been considered by the State Medical Council in its opinion in the order dated 01.08.2011 which in our opinion narrates the correct position and has been rightly accepted by the State Commission.
There is another reason and in our opinion additionally that casts a serious doubt on the report of the medical board that reported on 06.01.2011 during investigations by the police, and that is about the constitution of the said board. The board met, not on the directions of the Health or Home Department of the State Government. It seems to have been initiated by the police inspector to facilitate his investigation whereupon the DIG, Varanasi convened the same comprising of the Additional Chief Medical Officer Varanasi Dr. R.P. Tiwari, Dr. Dayanand Prasad Orthopedic specialist of SVM Hospital, Bhelupur, Varanasi, Dr. A.K. Sharma, Physician of the same hospital and Dr. Vivek Awasthi, the Surgeon incharge who had conducted the postmortem and submitted a report whereupon he gave a statement to the same police inspector who recommended the Constitution of a board. The shadow on the credibility of the report has been discussed herein but its constitution also raises legal concerns. Firstly, it is the police who did it on the request initiated by the Inspector after recording that a successful prosecution may not be possible without the opinion of a board. Whether it was designed or facilitated is not for this Commission to comment but the facts as unfolded, it did result in somewhat tilting the matter towards the Opposite Party. Further the participation of Dr. Awasthi, the author of the post-mortem report, in the board meeting might have influenced the formation of an opinion that cannot be said to be an absolute independent exercise. Thirdly, two of these doctors are from SVM Hospital in Bhelupur, which falls within the same police station that was investigating the matter. We will not say anything further as these are prima facie inferences in a summary jurisdiction where we are only weighing the preponderance of probabilities.
The principles laid down and enunciated in the case of Jacob Mathew (Supra) as extracted hereinabove therefore on the facts of present case come to the aid of the Complainants in establishing negligence of an unskillful performance by the doctors that is not in consonance with the expected standards that too even in a not too complicated surgery of simple fractures in the arm. The report of the State Medical Council for the reasons above also deserves to be accepted and the learned Counsel for the Complainant has rightly relied on the ratio of the judgment of the Apex Court in the case of Harnek Singh & Ors. Vs. Gurmit Singh & Ors. (2022) 7 SCC 685 decided on 18.05.2022 in paragraph 28 to 34.11 which are extracted hereinunder:
28. There was sufficient material indicative of large bowel perforation after the laparoscopic operation. It is true that it may not have manifested immediately in the normal course. However, there were sufficient indicators to a diligent professional, to detect and take immediate steps for restitution. Instead of examining the material that was placed on record, Ncdrc seemed satisfied with raising and rejecting the plea of res ipsa loquitur and holding that it is impermissible to assume that any sensible professional would intentionally commit an act which would result in an injury to the patient. In these proceedings for damages due to professional negligence, the question of intention does not arise. Unfortunately, Ncdrc did not even refer to the report of MCI. In fact, a reference to MCI report would have been sufficient to come to the right conclusion.
29. The MCI examined the matter in the context of an appeal filed by the complainants against the decision of the Punjab Medical Council dated 13-6-2006. MCI referred the appeal filed by the complainant to the Ethics Committee. The Committee recorded the statement of the complainant, and the doctors, Respondents 1 and 3. The Ethics Committee also sought the opinion of experts on the conduct of these the respondents. The two experts were Professors and HODs of Aiims, New Delhi and KGMC, Lucknow. We will now refer to each of their opinions.
30. In the opinion of Professor and HOD, Department of Surgery, Aiims, extracted in MCI report is as under:
"The findings at laparotomy confirmed it to be a case of large bowel perforation, which could be iatrogenic, related to the laparoscopic procedure. Appropriate surgical intervention was done on a by now very sick patient. Patient died on 11-8-2004.
Comment : It appears on the basis of available records that the diagnosis and operative intervention for generalised peritonitis as a result of bowel perforation was significantly delayed first at the local hospital and subsequently at DMC, Ludhiana and lead to the unfavourable outcome."
(emphasis supplied)
31. In the opinion of Professor and HOD, Surgery, KGMC, Lucknow, extracted in MCI report is as under:
"In case of Dr Gurmit Singh also, as per records it appears that he is not negligent in his duties towards Mrs Manjeet Kaur during her stay in his hospital and has given care to best of his proficiency and available facilities. However, the following relevant observations are made:
1. Pre-operative clearance from cardiologist was taken.
2. Pre-operative correction of anaemia by three units of blood done.
3. Pre-operative consent paper has been signed which mentions the possibility of fatality and likelihood of complication.
4. Post-operative second opinion was taken by Dr Gurmit Singh.
5. Records of Preet Hospitals are present in document sent by you, but recorded CD of surgery is not available.
6. In his statement of complaint, he mentions that both Dr Gurmit Singh and Dr Atul Mishra are qualified medical professionals.
7. Shifting of patient was done in distant hospital where better GI and ventilatory facilities are claimed. However, availability of these facilities in local city is matter of survey, which should be sought for.
8. Minor bile leak during surgery is accepted by Dr Gurmit Singh, which kept on increasing in post-operative period.
9. Bowel perforation and bile duct injuries were noted in surgery done by Dr Atul Mishra at Ludhiana."
32. After considering the material on record as well as the opinions of the Professors as indicated above, MCI concluded as under:
"In addition to that the Ethics Committee has decided to request Prof. & HOD of Surgery, Aiims, New Delhi and Prof. & HOD of Surgery, KGMC, Lucknow to kindly assist the Ethics Committee by going through all the records of the case and give their opinion regarding this matter. Accordingly, Prof. & HOD of Surgery, Aiims, New Delhi has given his opinion in writing and also Prof. & HOD, KGMC, Lucknow has sent his opinion.
The Ethics Committee after perusal of all the above documents has come to the conclusion that--
1. In the case of Dr Atul Mishra, no case of medical negligence can be established against him. Therefore, the Ethics Committee decided to drop the matter against Dr Atul Mishra and exonerate him from the charges.
2. Ethics Committee found that Dr Gurmit Singh has failed to exercise adequate medical competence in treating the patient as is apparent from the following points:
(a) There was a large bowel perforation after the laparoscopic operation. This complication which though not known in the normal course of time, had occurred in this particular case. This complication could have been prevented if care had been exercised during the procedure by Dr Gurmit Singh.
(b) More important Dr Gurmit has failed to suspect the occurrence of complications despite following warning, signs/symptoms--
(i) the patient not recovering after the operation.
(ii) the patient increasingly deteriorating.
(iii) there was a strong indication of a complication occurring after the procedure. Thereafter, his failure to detect all these conditions led to delay in diagnosis all perforation of the bowel and has to lead a situation of avoidable delay which causes increased deterioration of the patient."
33. In view of the clear findings, MCI decided to issue a strict warning to Respondent 1 to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation. As against Respondent 3, MCI dropped the case and exonerated him.
34. So far as present proceedings are concerned, as they arise out of a claim for compensation on the basis of medical negligence, the opinion and findings of MCI regarding the professional conduct of Respondent 1 have great relevance. The findings of the Medical Council, which is a statutory regulator have been extracted hereinabove, may be formulated as under:
As observed above and hereinafter, the conclusions drawn by the State Medical Council are credit worthy as it is based on the deliberations of the ethics committee comprising of experts and deserve acceptance.
The pre-anesthetic check-up was clear and the x-ray chest was also reported to be clear and hence to presume any injuries existing prior to the surgery is not correct. In the circumstances in which the patient started collapsing within the operation theatre which is substantiated by Annexure A/8, it is apparent that when a gradual deterioration was noticed, CPR was administered, yet the situation did not improve. It is therefore reasonable to presume that within the operation theatre while conducting the CPR excessive and disproportionate force must have been used in order to revive the patient and this therefore is a more probably correct inference that has been drawn by the State Medical Council. This also is compatible with the circumstances, inasmuch as contusions and the ante-mortem injuries in the postmortem report seem to be correlated to this exercise of CPR and the breaking of the ribs as also the contusion on the scalp was on account of the CPR operations carried out during which the patient might have suffered a fall as well.
This is further fortified by blood clots also discovered and noted in the postmortem report which were fresh injuries and could not be related back to 15.09.2010. The State Medical Council has also considered this to be a strong circumstance to conclude that the injuries were sustained inside the operation theatre when attempts were being made to revive the patient through CPR.The collection of 600 ml of blood in the lungs in clotted form is indicated in the postmortem report. This was therefore fresh clotted blood and not on account of any injury five days ago.
The State Commission therefore rightly came to the conclusion that there was some problem with the process of administering anesthesia and which is once again reflected from Annexure A/8 quoted hereinabove where the anesthetist has recorded under his signature the manner in which the patient's condition deteriorated after the administration of anesthesia. The oxygen level, the blood pressure as well as other vitals deteriorated within a very short span of time. The said conclusions have been made the basis of the indictment by the State Medical Council which cannot be doubted.
Dr. B.K. Tiwari, the anesthetist, did not appear to contest the complaint before the State Commission inspite of having been impleaded after an order was passed. No appeal has been filed to challenge the findings of the State Medical Council by Dr. Tiwari. The challenge by Dr. Binod to the report of the Ethics Committee by the State Medical Council has attained finality upto the Delhi High court. In these circumstances, medical negligence is clearly established as due care to administer CPR does not appear to have been taken and excessive force seems to have been used, thereby causing damage to the ribs and puncturing the lungs that in all probability resulted in Traumatic asphyxia. This may have arisen on account of some problem in the administration of anesthesia as observed by the State Medical Council and neither the clinic and the surgeon nor the anesthetist was able to handle the situation which resulted in the death of the patient.
This was a gross negligence and not an error of judgment. The use of a highly probable disproportionate use of force during CPR as indicated by the State Medical Council may have been the cause leading to lung complications resulting injuries and Asphyxia. The injuries thus caused cannot be possibly of 15.09.2010 as contended by the appellant clinic and doctor.
Coupled with this is also the fact that the patient was very hurriedly dispatched to the BHU Hospital with a slip of reference but when the patient reached there, he was declared to be brought dead. It is therefore clear that the patient had died and the sending of the patient to BHU Hospital was nothing else but an exercise to cover-up the negligence which stood established. We, therefore, do not find any error in the finding recorded by the State Commission imposing the liability of medical negligence on the clinic and the surgeon and the anesthetist Dr. B.K. Tiwari. The appeal (FA/1272/2016) filed by the clinic and the surgeon therefore fails and is hereby dismissed.
The Complainants have come up in FA/1639/2016 praying for enhancement of the amount awarded. It may be mentioned that in the earlier round of litigation when the State Commission had disposed of the claim exparte on 20.10.2011, a compensation of Rs.14 lakhs and litigation cost of Rs.20,000/- had been awarded. Against the said order as noted above, two appeals had been filed and vide order dated 13.02.2015 both the appeals were disposed of when the matter was remanded back to the State Commission. While entertaining the said appeals, a direction had been issued for deposit of the 50% of the decreetal amount which was Rs.7,10,000/-. The said amount had been deposited before the State Commission as stated on behalf of the Complainant and the same was permitted to be withdrawn on indemnity. Accordingly on an undertaking, the said amount of 50% was withdrawn by the Complainant. After remand, the State Commission under the impugned order awarded a sum of Rs.33 lakhs with Rs.5,000/- as cost. Thus, the compensation was enhanced to Rs.33 lakhs but the costs were reduced by Rs,5,000/-.
We have examined the deliberations made by the State Commission on this aspect where the age of the deceased, his status of service at the time of death and his prospective earnings were also taken into account. The patient had visited the hospital for a simple treatment of fracture in the right arm and he came out dead from the clinic. The loss of protection of the sole earning member of the family, the loss of consortium and the deprivation of the guardianship of the children was clearly an untimely departure of the deceased from this world due to the negligence as indicated above. The calculation made by the State Commission to our mind appears to be reasonable and commensurate to all these factors including the negligence found to have been established. Consequently, we see no special reason to enhance the compensation or modify it in any manner whatsoever. Given the overall circumstances, the compensation awarded for the deficiency and medical negligence seems to be appropriate and adequate. We accordingly uphold the impugned order on that count as well and for the aforesaid reasons, we do not find any ground available for enhancing the compensation. Hence, FA/1639/2016 is also dismissed. Accordingly both the appeals are dismissed .........................J A. P. SAHI PRESIDENT ............................................. BHARATKUMAR PANDYA MEMBER