National Consumer Disputes Redressal
Sushma Sharma & Ors. vs Bombay Hospital & Ors. on 28 February, 2007
NCDRC NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 46 OF 1998 Sushma Sharma & Ors. Complainants Vs. Bombay Hospital & Ors. Opp. Parties BEFORE : HONBLE MR. JUSTICE K.S.GUPTA PRESIDING MEMBER MRS. RAJYALAKSHMI RAO, MEMBER For the Complainant Shri V.C. Rishi & Ms. Mukta Sharma, Advocates For the Opp. Party No.1 Shri Arvind Nayar, Ms. Astha Tyagi, Ms. Reetu Sharma, Ms. Vaishnavi Krishnamani, Advocates for M/s. Karanjawala & Company For the Opp. Party No.2 Shri A.M. Chimalkar DATED : 28th February, 2007 O R D E R PER MRS.RAJYALAKSHMI RAO, MEMBER: This complaint is filed by Complainants Smt. Sushma Sharma, wife of the patient - Late Shri R.K. Sharma and their children, Smt. Anuradha Joshi, Sukant Sharma and Siddharth Sharma, (Complainant Nos. 2,3 & 4 respectively) before us on 6.2.1998 alleging medical negligence and deficiency in service on the part of the Bombay Hospital (opposite party No.1) Dr. H.K. Ayyer, Cardiologist, Bombay Hospital (opposite party No.2) and Dr. Meera, Registrar of the ICU (opposite party no.3), claiming compensation of Rs.22,26,762/- as per details given in para 12 of the complaint. Facts of the case are : Shri R.K. Sharma, aged 63, fell down from a bus while getting down and fractured neck femur (right hip joint) at about 9.30 on the night of 18.4.1996 and was immediately admitted in the Jagjeewan Ram Hospital (hereinafter referred to as JRH) in Mumbai on the same night. The record of the JRH shows that Shri Sharma was a known case of hypertension with ischemic heart disease with chronic renal failure with renal osicodystrophy with secondary hyper para thyrodism. The hospital record further shows that the patient was advised Surgery with calculated risk owing to his multi medical problems for which he was not willing. He therefore got himself discharged against medical advice on 27.4.1996 and got himself admitted in the Bombay Hospital on 27th for better treatment as it is a well known hospital with good specialists and latest medical equipment. Mr. Sharma was admitted for surgery of neck femur under the care of Dr. H.R. Jhunjhunwala, who is the Senior Consulting Orthopedic Surgeon at the Bombay Hospital. However, Dr. Jhunjhunwala has not been made a party to these proceedings. The said Dr. Jhunjhunwala referred the patient to Dr. K.H. Ayyer (O.P.No.2), a Consulting Cardiologist in the same hospital for evaluating the patients cardiac status on 27.4.1996. Dr. Ayyer accordingly examined and evaluated the patient as Moderately high risk for surgery in view of the indefinite cardiac status and additional renal involvement. The patient was operated upon on 29.4.1996 at about 2.45 p.m. by Dr. Jhunjhunwala. After the operation the patient was shifted to the Intensive Care Unit at about 5.30 p.m. on 29.4.1996. Unfortunately, at around 12.40 p.m. on 2.5.1996, the patient expired due to cardiac arrest. The case of the Complainants as brought out in the complaint is essentially against Dr. K.H. Ayyer and against the management of the Bombay Hospital. The alleged medical negligence is on eight counts: (I) At the time of operation the serum sodium level was low and no effort was made to stabilize the condition of the patient. On the contrary, the operation for the thigh which is not a life saving operation was rushed through. (II) Inadequate pain management after operation. (III) The patient who was suffering from very chronic hypertension was allowed to go into prolonged hypotension (low blood pressure). (IV) Inspite of tachycardia (fast beating of the heart), physiotherapy exercises were given. (V) There was sudden drop in hemoglobin on 1.5.1996 and no investigation was made about the cause of such a drop. (VI) Administration of Beta blocker (concor) was contra indicated. (VII) Onset of Pulmonary Edema was ignored for 20 hours. (VIII) All these successive acts of gross negligence resulted in the death of the patient. As mentioned above, Dr. Jhunjhunwala, the Senior Consultant in Orthopedic, who carried out neck femur operation was not made a party to the proceedings. However, during the course of hearing of the case, a number of allegations of negligence were made against Dr. Jhunjhunwala, essentially on three counts, namely that : (a) he carried out the operation in spite of contrary medical advise by Dr. H.K. Ayyer (Consulting Cardiologist); (b) though the patient had cardiac problems and though the Cardiologist advised against the operation, the Operating Surgeon, Dr. Jhujhunwala did not involve Dr. H.K. Ayyar at the time of operation; (c) Dr. Jhunjhunwala under whose care the patient was admitted did not coordinate the advice given by various specialists Cardiologists in the hospital during post-operative period and (d) the doctor in-charge of the ICU of Bombay Hospital delayed and did not properly implement the instructions of the Consultant, especially the Cardiologist. In addition to the parties to the proceedings, Dr. P.C. Rishi, who is the brother of the Complainant No.1 and a Cardiologist Dr. Styavan Sharma, Consulting Cardiologist, Bombay Hospital and Dr. H.R. Jhunjhunwala, Orthopedic Surgeon, who carried out operation filed their affidavits and were cross-examined before Justice M.S, Rane (Retired), Mumbai, who was appointed as Local Commissioner. We have gone through the case record carefully and heard the arguments of the parties. It is seen that late Shri R.K. Sharma was admitted for Orthopedic Surgery on the neck femur, 11 days after the fracture, he was also suffering from multi diseases, especially ischemic heart disease and chronic renal failure. Mr. Sharma was admitted in the Bombay Hospital under the care of Dr. H.R. Jhunjhunwala, the Consulting Orthopedic Surgeon. Before undertaking the operation, Dr. Jhunjhunwala referred the patient to opposite party No.2 for evaluation of his cardiac status and to the Nephrologist Dr. S.P. Trivedi for renal status. The Anesthetist Dr. (Mrs.) Tailang, and Dr. Ayyer, O.P.No.2 examined the patient on 27th April, 1996 itself, clearly recorded evaluation as Moderately high risk for surgery in view of the indefinite cardiac status and additional renal involvement. Dr. Ayyer explained that cardiac tests like stress test and angiography could not be carried out because of the fracture of the thigh and hence the remark Indefinite cardiac status. The serum sodium levels were admittedly low and Dr. Ayyer clearly opined that it would be better to wait till the sodium level improves. The Anesthetist Dr. (Mrs.) Tailang clearly recorded (Exhibit A) as follows : As per telephonic discussion with Dr. Ayyer, it will be better to wait till N.A. (sodium) improves This noting was done by Anesthetist on 29.4.1996 at 12 noon, i.e., two hours before the operation. However, the Nephrologist Dr. S.P. Trivedi, who was primarily responsible for interpreting the sodium levels, has certified on the same day in writing that the patient is fit for surgery (Exhibit B). From the above, it would be clear that Dr. Ayyer gave his advice and that from the cardiac point of view, the patient was not stable. Dr. Jhunjhunwalas argument is that fracture of the thigh was already 11 days old and any further delay in operation could cause undue complications. Hence, the charge regarding the condition of the patient not being stabilized before the operation cannot be placed at the door of Dr. Ayyer. As regards the charge of inadequate pain management after the operation, it should be noted that the patient was admitted in the ICU after the surgery. There exists a permanent staff of the ICU which looks after all the patients in the ICU and which is required to coordinate the advice of the Consultants. Dr. Ayyer was only informed at about 8.15 p.m. on 29th April, 1996, i.e. after the surgery, to review the patient. Dr. Ayyer after examining the patient at 8.45 p.m. had given a clear cut instructions in writing to the staff of the ICU (Exhibit F) to ensure that the Blood Pressure be maintained around 130 - 140 and also instructed to give a good Analgesic to prevent pain and tachy cardia. He further clarified that the Analegic was not specified as the Nephrologists Dr. S.P. Trivedi had made a noting to avoid Analgesic to the patient (Exhibit G). Under such a circumstance, the Analgesic could only be administered in consultation with Nephrologist as directed by him. Dr. Ayyer again in writing indicated that Disprin and injection Logiparin 3500 units should be started at the earliest depending on the surgical status. We agree with this argument that various Consultants could give orders but the actual administration and supervision is the responsibility of the concerned parent unit of the hospital, namely in this case, the unit of Dr. Jhunjhunwala and the staff of the ICU. No charge of negligence can be attributed to Dr. Ayyer on this count. There also appears no substance in the third allegation that of permitting hypotensive patient to go into prolonged hypotension. The hospital record indicates that at all times the patients blood pressure was being duly monitored and attended to. Notings of 30.4.1996 showed that the patient was haemodynamically stable. It was further suggested that systolic blood pressure (SBP) should be maintained around 140 mm Hg. Against the record at 10.30 a.m. on 1.5.1996 show the B.P. as 120/80 which is perfectly normal blood pressure (Exhibit I). Dr. Ayyer in his statement adds that in fact the condition of the patient was such that he (Dr. Ayyer) was requested by Dr. H.R. Jhunjhunwala to review and opine whether the patient can be transferred from the ICU to the ward (Exhibit J). A similar opinion was also sought from the Nephrology Unit of Dr. S.P. Trivedi. At about 3.00 p.m. on the same day (1.5.1996) when Dr. Ayyer was informed over the phone that the blood pressure has fallen to 90/60 mm Hg, he immediately instructed the Inotropic support with Debutrex be started. However, Dr. Ayyer admits that this medication which is relatively safe in cardiac patients, perhaps leads to decrease in blood pressure and hence, he stopped Debutrex and the patient was given Dopamine to support blood pressure. Clear instructions were also given not to give any nitrates and anti hypertensives (Exhibit K-1). We agree with Dr. Ayyer when he says that it is always a balancing act to monitor the blood pressure with drugs without causing further tachycardia, that can lead to more heart injury. On the same day Dr. Ayyer directed at 8.00 p.m. that injection Heparin may be given intravenously at 10.00 p.m. However, within half an hour after taking an overall review of the patient at about 8.30 p.m., he again instructed the unit not to give Heparin at 10.00 p.m. as originally proposed (Exhibit H). He has also pointed out and that is supported by affidavits of Dr. Satyavan Sharma that the practice of maintaining a Nurses daily record is that, only those drugs which are actually administered are struck off whereas the drugs which are omitted to be given are Circled. Exhibit M is a copy of nurses daily record for 1.5.1996 which will reflect that in fact antihypertensive drugs have been omitted. Hence, there is no substance in this allegation. The fourth allegation is that physiotherapy exercises were continued even on 1.5.1995 in spite of tachycardia. It is clear that the patient was referred to the physiotherapist Dr. Asha Andiyal, by the unit of Dr. Jhunjhunwala, Orthopedic Consultant. Dr. Ayyar has nothing to do with this aspect of the case. Both Dr. Jhunjhunwala as well as Dr. Asha Andiyal had stated on affidavits that the patient was asked to do breathing exercises and exercise of static movement of the muscles to maintain blood circulation in the legs and to avoid embolism. Dr. Jhunjhunwala also stated that these minimal exercises have been recommended to prevent deep veinous thrombosis in the legs and these exercises do not put any pressure on the heart. The fifth allegation is about the non-investigation of the causes of drop of hemoglobin. The blood report dated 1.5.1996 showed a drop in the hemoglobin to 6.4 mg. This report was received by the parent unit of the concerned Consulting Surgeon on 1.5.1996 ( 1.45 p.m.), i.e. Dr. Jhunjhunwalas unit and by the ICU. Dr. Ayyer has stated that immediately on noticing the drop of hemoglobin to 6.4 mg, he advised that packed cells be administered slowly (Exhibit K). He, however states that this advice was confirmed by Dr. Jhunjhunwalas unit only later at 6.45 p.m. (Exhibit L) and packed cells were administered only at 10.00 p.m. and hence it appears that there was delay in administering this direction. Regarding this aspect of delay we would revert to at a later stage. The next allegation is that the administration of Beta blocker (Concor) is contra-indicated because of the asthmatic condition of the patient. The record shows that a miniscule dose of concor (half O D) was administered at 2.00 p.m. on 1.5.1996. Dr. Ayyar has clarified that the patients ECG revealed acute myocardiac infraction. The patient could not be thrombolised in view of the recent surgery and renal failure, nor could heparinisation be done on him. Under such circumstances, a Cardiologist has to do a tight rope walk whilst selecting the drugs for treating the patient and his main job was to ensure that the infarction size is limited and as the patient was getting chest pain despite being a calcium channel blockers, the only alternative for the doctor was to try out a Beta blocker like concor. Dr. Ayyar produced extracts from the article of Cleveland Clinic on Beta Blockers and literature on Bisoprolol (concor) (Exhibits Q & R respectively) to show that the literature clearly indicates that concor is a drug of choice in a situation like the patients. The Pulmonary function tests did not show obstructive airways and hence the contention of the Complainant that the patient was suffering from asthma is not supported and hence, that the allegation Beta blocker concor ought not to have been given has no basis. The seventh allegation that onset of Pulmonary Edema was ignored also is not supported by evidence. The X-rays showed clear lungs. In the midnight between 1.5.1996 and 2.5.1996, Dr. Ayyer had gone for an urgent call to the Bombay Hospital in respect of some other serious patient. Using this occasion, though he was not called to look at Mr. R.K. Sharma, Dr. Ayyar made it a point to go and personally check the status of this patient. Though the x-rays were showing clear lungs, since there was cough present, in anticipation of any onset of Pulmonary Edema, he had written down instructions that Lasix be given on SOS basis (Exhibit U). Dr. Ayyar has clearly rejected the allegation that the case papers show that Kerley B lines (indicative of Pulmonary Edema) were noted in any x-rays. The record shows that in the morning of 2.5.1996 at 6.00 a.m., the patient was in good condition, the rate of respiration was normal and he was given a sponge bath, which would not have been the case had Pulmonary Edema been detected by the Resident doctors by that time (Exhibit V). Regarding the last allegation, Dr. Ayyar has mentioned that between 29.4.1996 and 2.5.1996, he has personally visited this patient on seven occasions as is evident from the case papers. In addition, he was constantly monitoring the well being and progress over phone, which is reflected from the case papers itself. He had been regularly interacting with all the relatives of the patient including Dr. P.C. Rishi, the brother of the Complainant No.1, who happened to be a Cardiologist and who was present in the hospital throughout. In our considered view Dr. Ayyer displayed deep concern for the well being of the patient and carried out his duties methodically and meticulously. It is unfortunate that the patient developed complications and died. In the written arguments of the Complainant dated 25.11.2005, and during oral arguments at the time of hearing, Learned Counsel for the Complainant shifted his allegations more against Dr. Jhunjhunwala who performed the operation. There are three specific charges made : (i) that no pre-operative assessment and evaluation was done, more particularly, that the cardiac condition and renal status have not been evaluated pre-operatively; (ii) that the hip surgery was not a life saving surgery and should have been postponed till the condition of the patient was stabilized; (iii) that there was no coordination amongst the doctors; (a) more specifically that the Orthopaedic Dr. Jhunjhunwala operated the deceased against the advise and opinion of Anesthetist and Cardiologist; (b) that the Cardiologist was not informed with regard to the operation nor his services were taken during the operation; (c) and that the hip operation which was not a life saving or emergent one, was carried out in a most casual and cavalier manner in utter disregard to the advise of the Cardiologist and Anesthetist. Thus it would be seen that the focus of attack has shifted from Dr. Ayyar to Dr. Jhunjhunwala, the Orthopedic Surgeon. On the other hand, the Learned Counsel for the opposite party no.1, the hospital has argued that the deceased R.K. Sharma and the Complainants went ahead with the operation for hip joint with full knowledge that the operation is a moderately high risk operation, which could lead to complications including death because of various other medical problems of R.K. Sharma. It is also argued that the Complainants consciously and being fully aware of the high risks involved, wanted to go ahead with the hip surgery because it was already delayed for 11 days and further delay would have meant long confinement in bed leading to other complications like pneumonia, bed sores, urinary track infection, pulmonary embolism, etc. Dr. Jhunjhunwala in his affidavit states (para 5) I can with authority state that the mortality rate in elderly patients with fractured neck femur accompanied by cardiac problems and other medical problems is high. In support of this argument, attention has been drawn to the fact that the Complainants consciously omitted to implead Dr. Jhunjhunwala, the Operating Orthopedic Surgeon as the opposite party. It is further averred that only after the Complainants attack against the Cardiologist, Dr. H.K. Ayyar has been effectively rebutted by him that the Complainants shifted their stand and started mounting attack against the Orthopedic Surgeon who carried out the operation. Opposite parties have also produced extracts from Journal of Link Bone and Joint Surgery to show that : (a) 35% of the patients who had their surgery for (fracture of the hip); who had surgery beyond 5 days (after the fracture) died within the year; (b) The case of fatality rates increase sharply with age. (c) Fatality rates after fractured neck femur have not declined appreciably in the last 20 years and that (d) Fatality rates are higher in men than women (Exhibit W) It is further contended by the Learned Counsel for the opposite party No.1 that there are inherent contradictions in the case of the Complainants. For instance, at one stage, they mentioned that no pre-operative assessment and evaluation about the cardiac condition and renal status was done. In the same breath, the Complainants also argued that the Orthopedic Surgeon operated upon the deceased, against the advice and opinion of the Anesthetist and the Cardiologist. It is submitted that the actual facts are that all the three, namely the Cardiac Specialist, the Renal Specialist and the Anesthetist were asked in writing for pre-operative evaluation and such advice was to be taken into consideration before the operation. The Learned Counsel submitted that although the advice given by the Renal Specialist, Dr. Trivedi was different from the advice given by the Cardiologist, Dr. Ayyer, the Operating Doctor/Surgeon had to harmonize the views of various specialists and decide upon the operation or otherwise, after also taking into account the desire of the Complainants to go ahead with the operation. Although we can appreciate opposite parties contention that the unfortunate death of R.K. Sharma is caused due to complications arising out of his other diseases he was suffering from, but on the face of the record and on hearing both sides, we find there are five instances which came to light regarding lack of coordination in the hospital between the specialist and the opposite parties. Firstly, after having referred the matter for pre-operative cardiac advice to Dr. Ayyar, Dr. Jhunjhunwala should have involved the cardiac specialist during the conduct of the operation. This was all the more necessary considering Dr. Jhunjhunwala did not follow the advice given by Dr. Ayyar and he knew that the mortality rate in such patients is high. Secondly, Dr. Ayyars admission that he was not aware that the surgery took place till the evening after 8 itself shows that there is no coordination in this hospital between the specialists. In this case, Dr. Jhunjhunwala did not discuss the case after advice given by Dr. Ayyar before the surgery nor did he discuss it post surgery to keep Dr. Ayyar involved regarding post-operative treatment of the patient. Dr. Jhunjhunwala just left the patient to Dr. Ayyer to manage whatever problems which arose after the surgery. The third incidence of negligence is the fact that the advice given by Dr. Ayyar to give packed cell to the patient was not implemented till 10.00 p.m. on the day (1.5.1996) in spite of the fact that the hemoglobin levels were critically low. Record shows that doctor in-charge of the ICU did not give packed cell treatment till late in the night because they were waiting for a formal approval of the same from Dr. Jhunjhunwala as the patient was admitted under his care. The Hospital has failed to ensure that the instructions of a Specialist are carried out immediately as time is essence of the treatment in the present case. Fourthly, it is seen from the record that Dr. Jhunjhunwala, the Operating Surgeon under whose care the patient was admitted and whose unit is referred to repeatedly as Parent Unit has failed to coordinate the advise of other Consultants and also failed in ensuring that the ICU staff followed in a timely manner the instructions given by various specialists. Dr. Jhunjhunwala tried to shirk his responsibility in this regard as is clear from his affidavit where he tried to argue that each of the subject specialists is responsible to see that their instructions are carried out by the staff. It is true that Dr. Jhunjhunwala has not been impleaded as an opposite party to the proceedings. However, the Honble Supreme Court has in the case of Savita Garg V/s. Director National Heart Institute (2004) IX (AB) SC 545 clearly laid down that irrespective of the way a particular doctor is impleaded or not, if there is negligence on his part the hospital had to be held to have vicarious responsibility. In view of this, we hold that the opposite party No.1, the Bombay Hospital to be responsible for the above lapses. It is for the Bombay Hospital to decide on what action they wish to take against their specialists and the staff. Lastly, we wish to point out the lacunae on the part of the Bombay Hospital that although the maintenance and management of the Intensive Care Unit (ICU) is a clear responsibility of the Bombay Hospital and Dr. Meera, Registrar in-charge of the Bombay Hospital has been impleaded as opposite party No.3, they did not ensure to bring her evidence. It was not been possible to examine Dr. Meera since no notice could be served on her for want of proper address. It was the responsibility of the Bombay Hospital to have ensured the presence of Dr. Meera, their employee at the relevant time before the Commission. An adverse inference had to be drawn against the Bombay Hospital for having failed to do so. Before concluding, we wish to say that even in a prestigious and super specialty hospital like the Bombay Hospital, no efforts have been made to bring proper coordination between various specialists and Resident staff of ICU in the treatment of a patient. One cannot expect the patient and his relatives to play this coordinating role and to find out as to what doctor has prescribed which treatment and whether the specialists instructions are being implemented properly and within reasonable time by the Resident doctors. It is also clearly not possible for the individual subject specialist to coordinate overall management of the patient and such responsibility has to rest on the doctor in-charge of the parent unit. It is necessary that all super specialty hospitals lay down a clear protocol for coordination and management of the patient suffering from multiple medical problems requiring consultation with various specialists, and to see that their instructions are properly implemented. In view of the above findings, we partly allow the complaint holding opposite party no.1 responsible for the contributory negligence leading to deficiency in service. We feel that ends of justice would be served by directing opposite party No.1 to pay a sum of Rs.3 lakhs to the Complainant No.1 within four weeks from today. Complaint against O.P.No.2 is dismissed. There shall be no order as to costs. J (K.S.GUPTA) PRESIDING MEMBER ....
(RAJYALAKSHMI RAO) MEMBER p