BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 12^th May 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                  : HON’BLE MEMBER

ORDERS IN

C.C.No.153/2013

(Admitted on 29.05.2013)

Mr. Pushparaj,

S/o Late Chandrashekar and the

Deceased Bhavani, residing at Sourabh,

Near Mahalingeshwara Temple,

Pumpwell, Kankanady, Mangalore.

                                                                  ….. COMPLAINANT 

(Advocate for the Complainant: Sri DS)

VERSUS

1) Dr. R.L. Kamath,

    M.D. D.M. Cardiology,

    Interventional Cardiologist,

    Yenepoya Speciality Hospital,

    Kodialbail, Mangalore.

2)  Dr. Harish R Nair,

     Yenepoya Speciality Hospital,

     Kodialbail, Mangalore.

3)  Dr. P. S. Bhat,

     Cardiologist,

     Yenepoya Speciality Hospital,

     Kodialbail, Mangalore.

4) Hospital Manager,

    Yenepoya Speciality Hospital,

    Kodialbail, Mangalore.

                                                              ….........OPPOSITE PARTIES

(Advocate for the Opposite Parties No.1 to No.4: Sri KSB)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

          The complainant claims his mother Mrs. Bhavani aged 68 years a house wife with a semi-literate lady could only sign and understand Tulu and Kannada language.  Complainant and her son-in-law had approached opposite party No.1 who had diagnosed in consonance with the Echo Cardiograph Report as old Inf Wall MI (Myocardial Infarcation) and LVEF 49% left ventricle ejection fraction and LVEF myocardial infarction and prescribed drugs which she was taking regularly and she approached opposite party No.1 on 3.12.2012 and 8.1.2013 by opposite party No.1 had prescribed her drugs. On 5.12.2012 in consonance with the exhortation of the opposite party No.1 she underwent coronary angiography and as per report dated 5.12.2012 the final impression was only Triple vessel disease and opposite party No.1 recommended Coronary Artery Bypass Graft also known as CABG.   Opposite party No.1 had asseverated the deceased and the complainant that deceased would regain her health provided she underwent CABG an invasive bypass surgery of the heart by impressively stating that the Prime Minister of India, Mr. Manmohan Singh has also undergone CABG and regained his health and leading an active and healthy life.    By attaching credence to opposite parties words she underwent CABG at Yenepoya Specialty Hospital, Mangalore which was carried out by opposite party No.2 in an abjectly slipshod, reckless, careless and neglectful manner that culminated in the death of the complainants mother Bhavani.

2.     Smt. Bhavani as revealed from the hospital record presented two months earlier with chest pain and diagnosed with the Triple Vessel Disease.  On careful scrutiny of all the medical records and the application of ratiocination and viewed from any angle the deceased did not suffer from triple vessel disease CAD or significant blockage in her left main coronary artery.  Opposite party No.1 also did not add to this as seen from the hospital record did not assess properly the history of chest pain prior to recommending a major operation like coronary artery bypass graft to the patient which opposite party No.1 have not recommended when the severity of Coronary Artery Disease is an important determinate of prognosis after acute myocardial infarction.Without properly evaluating one of the symptoms chest pain suffered by the patient by subjecting her to any one of the large variety of available testing modalities is prior to subjecting the deceased patient to a major heart surgery.  As a physician opposite party No.1 was not being an astute diagnostician in taking the pain history.

3.    The deceased got admitted to Yenepoya hospital as recommended by opposite party No.1 on 16.1.2013 and she was known patient of hyper tension for last 8 years and CAD complications of chest pain since 2 months and diagnosed to have Triple Vessel Disease and had positively No H/o, DM/BA/TB/Jaundice/Allergy under other investigations the record is divulges Duplex Dopplar study of lower left limb arterial system on 16.1.2013.  Mild atheromatous changes with well preserved blood flow up to Dorsalis Pedis Artery coupled with no focal stenosis thrombosis.   The disease suffered by complainant’s mother did not warrant the necessity of her major surgical treatment like GABG. Opposite party No.1 would have recommended other safer and reliable available opinions rather than provide the deceased patient with unwarranted major surgical treatment like C.A.B.G.   In the event of such treatment proving to be inefficacious then only opposite party No.1 could have opted for a major open heart surgery like CABG.  Opposite party No.1 instead of adopting prudent course of action with the covetous eye for fast buck opted for providing surgical treatment to the deceased without applying a scintilla of ratiocination. Complainant mother expired on 28.01.2013 at 8:25 PM with cause of death show as low cardiac output syndrome post CABG.

4.     Complainant further alleged before the surgery neither the deceased patient nor complainant or the son in law of the patient were informed and no informed consent was obtained.   She was not explained anything as to the complications and none of the relatives of the deceased were explained i.e. the son in law of the patient or daughter were explained factors involved with the conducting or otherwise CABG.  The cardiac anaesthetist Dr. Rakesh is not a party to the consent form and he had not acknowledged his signatures therein.  He is only a name lender to the consent form which could mean that he was never present at the time when the signature of the patient, complainant and the relative are obtained.  Opposite party No.1 has also cheated the deceased patient with his sugary asseveration and assurance as well as representations about the objective facts that CABG surgery beset with major complications and risk like stroke and hemorrhage. 

5.     On 18.1.2013 at 8.30 am the patient was shifted to Cardiac O.T. at 15:45 hours she was sifted from CTOT to ITV and kept on ventilation support at 12:00 hours on 19.1.2013 and she developed intermittent Arterial Fibrillation mean atria beating rapidly and chaotically and ineffectively ventricle responds at irregular QRX complexes with no P Waves.  Diagoxin, B. Beta Blockers and vera panil reduce the ventricular rate either the team of doctors of the opposite party No.4 or Dr. Rakesh had not apprised the same to opposite party No.1 and No.2 and the Atrial Fibrillation had been poorly managed by the opposite party No.4 in the conspicuous absence of opposite party No.1 and No.2.

6.     As seen from the records and the operative notes authored by opposite party No.2 very intelligibly that the CABG major surgery being carried out in an abjectly slipshod manner.  As most of the cardinal requirement to be stringently complied with the successful outcome of CABG had not been complied with duly by opposite party No.2 which in turn would also throw light on that opposite party No.2 as a cardiac surgeon not only be acquired a sound knowledge as to carrying out CAGB successfully as also has not acquired the requisite surgical adroitness competence and experience to carry out the major surgery like CABG and had been carried out by opposite party No.1 in an abjectly slipshod reckless, careless and neglectful manner and as copiously contributed to the exacerbation in the condition of the deceased patient who underwent trauma tribulation and the ordeal of the major surgical invasion through CABG by opposite party No.2.   Subsequent to CABG in consonance with the recommendation by the opposite party No.1 carried out by opposite party No.2 the deceased patient was afflicted with Atrial Fibrillation, Bronchospasm an episode of cardiac arrest drop in saturation low BP, the surgical site showed bluish discolouration, the deceased patient had become restless and hyper ventilating hypotension resulting declaration in the death at 20:25 hours on 28.01.2013.

7.     It is further contended the deceased patient was afflicted during her hospitalization from 16.1.2013 up to 28.01.2013 with allergic reaction as a result of which the shape and size of her body is ballooned and gave a bizarre swollen appearance.  Despite several queries put in regard to that opposite parties one of them including particularly Dr. Rakesh Cardiac Anaesthetist of opposite party No.4 all of them remained tight lipped do not apprise to the complainant and son in law of the deceased nor the cause of such unsightly allergic reaction.  Even the discharge summary of Yenepoya Specialty Hospital maintain a dignified and astonished silence to that sans there being any mention in regard to that.  The complainant and brother, sister and brother in law who were constantly keeping a vigil over the diseased patient during the hospitalization had been kept in darkness by the opposite parties. The staff nurses and others personnel duty doctors of opposite party No.4 feigned ignorance as to the allergic drugs or injection which the deceased patient was afflicted by being very tight lipped despite specific quarries by the complainant and the brother in law on umpteen occasions.

8.     Complainant further alleges on 19.1.2013 the deceased patient revealed the early signs of gradual deterioration from 12 hours as she started showing intermittent Atrial Fibrillation on 20.1.2013 and at 17 hours on 21.1.2013 she developed breathlessness she was on cardiac monitoring in a ventilation.  On 22.1.2013 she was put on CPAP an acronym of continuous positive airway pressure.  On 24.1.2013 there is a note made in the doctors record as I will be out of station for next 5 days request Dr. P.S. Bhat Cardiologist to take charge of the management please this note reveals the zenith of negligence and callousness and utter clinical attitude in extremis and left the patient as her relative by appointing opposite party No.3 to manage the show who did not even bother to take the responsibility shouldered on him properly and made only a guest appearance and had only a cursory visual examination on the deceased patient twice and sans any  conscious involvement in the case of the deceased and ratiocination simply advised the doctors to continue with the same treatment and opposite party No.3 was never present when the patient was afflicted with bradycardia and show and had been manged by opposite party No.4 without the assistance of the opposite party No.3.  The hospital records very intelligibly showed on 27.1.2013 at 15:05 hours the patient had bradycardia (40/mt) and one episode of the cardiac arrest and again on 28.1.2013 at 17:15 hours she was once again afflicted with bradycardia.  On both occasions neither the concerned personnel of opposite party No.4 not bothered to apprise the opposite party No.3 nor opposite party No.3 bothered to be present and provide for requisite medical assistance to the deceased patient.  All these factors cumulatively go to show that opposite party No.3 and No.4 have also contributed to the death of the deceased patient Mrs. Bhavani with their abjectly slipshod reckless and careless and neglectful way of handling the case of the deceased patient.  Opposite party have collected a sum of Rs.3,47,000/ towards providing abjectly slipshod, careless, reckless and neglectful medical treatment  to the deceased mother of the  complainant.  As opposite parties did not comply with the demand made by the complainant under legal notice dated 18.3.2013 towards deficiency in rendering service by them to complainant’s mother.  Hence seeks the relief of solatium of Rs.20,00,00 from opposite parties. 

II     opposite party No.1 in the version mentions Mrs. Bhavani was earlier referred to him by Dr. T Rathnakar, Senior Ophthalmologist on 5.3.2010 for pre operative assessment for cataract surgery as she was suffering from Ischaemic Heart Disease and Hypertension and on Anti hypertensive and Anti Platelet Medicines with medicines for Ischaemic Heart Disease.  In case opposite party No.1 evaluated the patient and then clear for cataract surgery and was later admitted to Athena Hospital, Mangalore for giddiness and chest pain in December 2011 and diagnosed for unstable angina of mild degree.   Opposite party No.1 treated her in the hospital and prescribed with Cardiac Antiplatelet and Anti anginal and Anti Hypertensive medicines and thereafter discharged. Subsequently she was visiting this opposite party periodically and there was no problem till she came again in November 2012.  On 6.11.2012 she was admitted with severe chest pain and sweating at K.M.C, Ambedkar Circle, Mangalore and opposite party No.1 was intimated and she was diagnosed with acute uncomplicated inferior wall Myocardial Infarction (heart attack).   In ICU of K.M.C Hospital on discussed with the patient and relatives of the patient for management by Thrombolysis and medication.  She recovered from the heart attack on account of medical management by medications and thrombolysis she was treated by opposite party No.1 and was discharged on 12.11.2012 on antiplatelets, lipid lowering medications and advised to have life style modifications and was asked to come for review after three weeks.  Thereafter she came to opposite party No.1s clinic with the complaint of frequent chest pain on simple house hold work and she had presented with the New York Heart Association Grade III cardiac symptoms despite of medications.  She was hypertensive for past 8 year and had TIA (transient ischemic attack of the brain) 10 years back only in Bangalore and advised by opposite party No.1 to undergo simple coronary angiogram test at the hospital of her choice and the same would help to decide the coronary anatomy and the future course of action. Patient was advised angiogram which revealed multiple vessel (TVD Triple Vessel Disease) and was informed that CABG is the most appropriate remedy in view of the medications proving to be ineffective and she had sufficient time to obtain any other opinion from an independent specialist and delivered on the same. 

2.     The patient as well as her son Mr. Pushparaj opted opposite party No.4 hospital for undergoing coronary angiogram test with the informed consent of patient with her son Pushparaj as a witness coronary angiogram was carried out by opposite party No.1 on 5.12.2012 which revealed total occlusion of Right Coronary Artery (RCA) and both arteries in left system (Left Anterior Descending and Left Circumflex) were found significantly diseased.   She was advised in view of triple vessel disease (TVD) to undergo CABG they were also informed at various other modalities like Angioplasty, Stenting, the cost involved and the risks in each modality of the treatment.  Opinion of opposite party No.2 Cardiothorasic Surgeon was sought by opposite party No.1.  Opposite party No.2 after examining the patient and her records cleared the patient for surgery.  She was handed over with the CD of the angiogram along with the angiogram report.  She was also advised to continue the medications and to take the decision after deliberating on the same.  She decided to undergo CABG and got herself admitted at opposite party No.4 hospital on 16.1.13.   The pre operative blood investigations, chest xray were found to be within the normal limits and ECG showed changes suggestive of previous inferior wall myocardial infraction.  The Echo Cardiograph done by opposite party No.1 showed changes suggestive of old inferior wall infraction with Left Ventricular Dysfunction with an Ejection Fraciton of 49%.   The patient as well as her relative was fully explained about the risks and benefits of the CABG procedure.  Opinion of Neurologist Dr. Rakshith was sought by opposite party No.2 and he documented her to be having early Parkinsons disease and she was cleared to be taken for surgery.  Thereafter the patient was taken up for surgery by opposite party No.2 and Dr. Rakesh, Cardiothorasic Anaesthesiologist at opposite party No.4 hospital.  Once the patient was taken up for surgery opposite party No.1 only monitored condition of the patient as and when required by the opposite party No.2 and Dr. Rakesh. Once the patient is taken up for the surgery is done by Cardiothorasic Team comprising of Cardiothorasic Surgeon and Cardiac Anaesthetist/Intensivist i.e.  Opposite party No.2 and Dr. Rakesh and the role of Cardiologist is limited.

3.     He also claims on 24.1.2013 due to personal commitments opposite party No.1 requested opposite party No.3 to monitor the condition of the patient as and when required by opposite party No.2 and Dr. Rakesh.  Opposite party No.1 is the chief Cardiologist (HMO) of Government Wenlock Hospital, District Hospital, Mangalore and also H.O.D of Dept of Cardiology of K.M.C, Mangalore and also visiting to various other Hospital including opposite party NO.4.  Opposite party No.1 is the first ever Cardiologist (DM) in Karnataka and has been practicing cardiology since 1986 and teaching Medical Students at all levels including Post Doctoral students in the field of Cardiology.  Opposite party No.3 is well reputed, efficient Cardiologist having 30 years of experience in the field of Cardiology and is fully competent to take care of medical aspects of the patient in case of need.   Opposite party No.1 had returned to India from abroad on 29.1.2013.   Allegations made by the complainant in the complaint against opposite party are denied.   Hence seeks dismissal of the complainant with compensatory cost.

4.     Opposite party No.2 also filed a detailed version refuting all the allegation made against him.  The patient as well as her relative were fully explained about the risks and benefit of CAGB procedure.   He also contends the patient was taken for CABG on 18.1.13 monitoring lines were put i.e. ECG, Invasive Arterial Monitoring and Pulmonary Artery Catheter (Swan Ganz) and anesthesia induction and intubation was done which was uneventful.  Post induction, a Trans Esophageal Echocardiogram was done by Dr. Rakesh, Cardiothorasic Anaesthesiologist, which showed Global Hypokinesia with Ejection Fraction of 40%.  Initially there was mild mitral regurgitation which got exacerbated during initial handling of the heat.  Inj Dobutamine 7.5 mic/kg/min was started along with GTN infusion, following which Ejection Fraction increased and Mitral Regurgitation decreased.  The first two grafts of LIMA (Left Internal Mammary Artery) to LAD (Left anterior descending) and Saphenous vein graft to PDA (Posterior Descending Artery) were done uneventfully off pump. However when the heart was positioned for OM (Obtuse Marginal) grafting, the mitral regurgitation increased and there was fall in blood pressure; immediately, the heart was put down and Elective Cardio Pulmonary Bypass (CPB) initiated and graft to OM was done.  Rest of the surgery uneventful and she was shifted to Intensive Therapeutic Unit in a stable condition connected to ventilator and continued the supportive treatment.   The patient had a smooth recover and taken off ventilator at 7 Pm on the same day.  The Cardiac support medications such as Inotrope, Dobutamine were gradually stopped on 19.01.2013.   The patient developed intermittent AF for a while at about 12:00 hours which was successfully treated by a Blous dose of 150 mg of Amiodarone thereon.  On 2^nd post operative day i.e. 20^th January 2013 the patient progressed normally and was mobilized.  However at 5 pm on the same day the patient developed breathlessness and was treated was not responded to the regular treatment and was decided to electively ventilation.   Prior to the same, patients son the complainant was called and informed about these events by opposite party No.2 and Dr. Rakesh.   An opinion of Pulmonologist Dr. Vishnu Sharma was obtained the patient was diagnosed to have Pulmonary Edema most probably due to Acute LV failure.   Screening echo done showed LVEF of 40%.  Diuretics, Inotrope and Vasodilator therapy were initiated.   Injection albumin was given to correct hypoalbuminemia.  An echo done on 21.01.2013 by opposite party No.1 showed an Ejection Fraction of 35.40%.  Infusions of Dobutamine and Adrenaline were added.  The patient developed Altered Liver Function (Increase in ammonia, liver enzymes and bilirubin) on 24.1.13.  The patient was seen by Dr. Suresh Shenoy, Gastroenterologist who opined the same to the hypoxic or ischaemic hepatitis also known as SIELI (Severe Ischemic Liver Injury) when it occurs after cardiac surgery, it has a very poor prognosis.  The risk factors of SIELI are cardiac failure, female gender, hypertension and diabetes.  Barring diabetes, the patient had all other risk factors.

5.     All these complications arose in spite of maintenance of adequate hemodynamic with maximum doses of Inotropes and full mechanical ventilation, beyond the control of the medical team.  Packed cell RBCs were transfused to maintain HB (haemoglobin). There was persistent Hypoproteinaemia (decrease in proteins) most likely due to dilution and altered liver function which was treated with albumin and rise tube.  Hypoproteinaemia, along with cardiac failure gives rise to generalized edema wherein the patient appears bloated up.  All the while the kidney function remained on borderline with just enough amount of urine being generated.  The patient later developed paralytic ileus wherein her nutritional needs were taken care of Total Parenteral Nutrition (TNP) by way of lipids and amino acids under the care of Intensivist Dr. Salman who contributed to the optimal management of mechanical ventilation during the course of the treatment of the patient. 

6.     On 25.1.2013 at about 08:50 Pm the patient developed severe bradycardia and hypotension which was treated immediately by pacing.  The patient reverted back to her own rhythm within 10 minutes. Similar episode occurred again on 27.10.2013 at about 03:05 pm.   The son of the patient was again informed regarding the guarded prognosis in such cases and she was attended by opposite party No.2 and Dr. Rakesh and she was connected to pacemaker.  The patient was revived and her BP improved that stood at 120/70.  There was a glimmer of hope in the morning of 28.1.2013 as the patient was showing signs of being oriented and liver function tests showed improving.  However at 7.15 pm on the same day the patient developed bradycardia progressing to asystole which was treated appropriately by pacing and initiating of CPCR.  However the patient did not respond at all to any of the modalities of treatment and expired at 8:25 pm on 28.1.2013.

7.     He also contends all other allegation were denied.  Other assertion made to in line with the stand taken by opposite party No.1 in the version. Hence not repeated. He also contend he is not liable for medical negligence or the deficient of service on the part of the opposite parties, not liable to pay any amount of compensation to the complainant.

8.     Opposite party 3 in his version claims as opposite party No.1 had to leave the country for personal reason on 24.1.2013 requested him to monitor the condition of the Patient Mrs. Bahvani and to assist opposite party 2 at opposite party No.4 hospital if necessary.  Opposite party No.3 had only monitored the condition of the patient from 24.01.2013 as and when required by opposite party No.2 and Dr. Rakesh.   During the period from 24.1.2013 till the patients death there was no medical need to specially examine the patient for any specific medical complication or diagnose the same or to prescribe any additional drugs or to alter any drugs by opposite party No.3 except instructing the nurses to the post surgical test cardiologist has minimal role. Hence seeks dismissal with the compensative cost.

9.     On behalf of opposite party No.4 memo has been field as to adopt the version of the opposite party No.2 Dr. Harish R Nair.

10.      On behalf of complaint rejoinder was filed asserting allegation made by the complainant of the complaint and opposite party are a rehash of fallacious reflection of distorted facts in their version. 

11.     In support of the above complaint Mr. Pushparaj filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C61 as detailed in the annexure here below.  On behalf of the opposite parties Dr. R L Kamath (RW1) Cardiologist, Dr. P S Bhat (RW2) Cardiologist and Dr. Harish R Nair (RW3) Cardiac Surgeon at O P No.4 Hospital also filed affidavit evidence and answered to the interrogatories served on them and produced documents got marked at Ex.R1 to R2 as detailed in the annexure here below. 

III.    In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

        The learned counsels for both side filed notes of argument.  We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties.  Our findings on the points are as under are as follows

               Point No.  (i): Affirmative

              Point No.  (ii): Partly Affirmative

              Point No. (iii): As per the final order.

REASONS

IV.   POINTS No. (i):   That the mother of complainant Mrs. Bhavani was first admitted to opposite party No.4 hospital under the advice of opposite party No.1 for CABG and undergone CABG and it was a paid treatment are undisputed.  Hence there is a consumer and service provider relationship between the parties.  Complainants mother Mrs. Bhavani aged 68 years after admitted at opposite party No.4 hospital CABG was done on her on 18.1.2013 did not succeeded and died while under in the treatment in the hospital on 28.1.2013 is undisputed.  The complainant alleges medical negligence on the part of the opposite parties on various counts that resulted in the death of his mother.  However as opposite parties denied the allegation of medical negligence and rather assert taking utmost care of Bhavani the patient.  The death was as one of the unexpected event post CABG complications.  Hence there is a dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.  Hence we answer point No.1 in the affirmative.

POINTS No. (ii):  The learned counsel for complainant attacked the treatment at various stages of the complainants mother Mrs. Bhavani the patient on various counts.  If we may refer to written argument notes of opposite party No.1 were it is tabled the grounds of arguments for complainant in the following words:

Complainant arguments:

1. That prescription dated 24.11.2013 issued by O.P No.1 as Smt. Bhavani does not reveal that the patient had frequent chest pain.
2. Patient had only TVD and not Severe TDA.  She ought not to have been referred to CABG and should have tried alternate non invasive options such as PCI.
3. That O.P No.1 has not furnished adequate information to the patient while obtaining consent.
4. Consent was not signed by O.P No.1
5. O.P No.1 went out of station on 24.01.2013 and entrusted the patient to O.P No.3.  The same is negligence.

2.     In respect of these contention as and when necessary of the various other aspects raised by the parties we will consider them.  In respect of point No.1 even according to complainants own document Ex.C8 is a prescription chit issued by opposite party No.1 to Smt. Bhavani aged 66 years it is dated 5.3.2010. As seen from this there is no mention as to what are the reason for Bhavani approaching opposite party No.1 on 5.3.2010.  However the medication prescribed by opposite party No.1 on that day are Rx. Tab Dilzem 30 1.1.1, Tab sorbitrate 10 1.1.1, Tab clopilet 75 0.1.0, AMIFRU 40 0 ½.0, Sd/.   Rabeloc 20 1.0.1 x 15 days, Ativom 1mg 0.0.1 x 10 days.   To stop clopilet 3 days before surgery to see Dr. T Rathnakar.

3.     On the reverse side of this prescription there is mention of sucrafil suspension.  On 30.6.2010 there is mention of R.B.Sugar 130.0 no objection to surgery Sd/.  To see Dr. T Rathnakar.

4.   There is another prescription Ex.C9 of Dr. N.Shankar Consultant Neurologist, it is dated 2.11.2011 on this prescription we can make out cannot decipher.  But on continued endorsement of 22.11.11 at Ex.C9 we find prescription of Tab Deanxit or Franixit ½.0.0, tab depsol 25 or Antidep 25 0.0.1 x 45 days.   This deanxit we find from internet it is grouped under medication that are used for treating depression.

5.      The drugs prescribed at Ex.C8  Dilzem  30 as found in the internet, is a drug used to treat high blood pressure to control angina i.e. (chest pain) another tablet sorbitrate 10 is also used before physical activities to prevent chest pain angina in people with certain heart condition (Coronary Artery Disease.) as tablet clopilet is also same.  In fact Ex.C12 issued by Athena Hospital to complainant also which is dated 29.12.11 shows Sorbitrat 10, Delzim 30, cremagin, Vertin, De Anxit, Depsol 25, Clopilet 75 prescribed to Bhavani.  Even at Ex.C.13 dated 21.06.2012 opposite party No.1 to Bhavani prescribed the same Sorbitrate 10, Delzim 30, Depsol 25 and Clopilet 75.  Ex.C14 dated 2.11.12 of Dr.N Shankar, Consultant Neurologist prescribed to Bhavani Tab Deanxit or Versidep ½ .0.0, Tab Depsol 25 or Antidep 25 0.0.1 15 days.  Thus it is clear from these documents she was under consultant medical treatment for depression as well as angina i.e. chest pain and also for hypertension. 

6.      Ex.C17 the Treatment Summary issued by the Dep. of Cardiology in the Final Diagnosis mentions Bhavani known patient of hypertension since 8 years and CAD. Complaints of Chest Pain 2 months ago and diagnosed to have Triple Vessel Disease.

7.      The learned counsel for complainant has drawn our attention to the medical literature on Severe Coronary Artery Disease (CAD) as to the Symptoms of Severe Coronary Artery Disease and Tests to Diagnoses Severe Coronary Artery Disease the learned Author mentioned:

Symptoms of Severe Coronary Artery Disease:

Many times there are no noticeable symptoms of coronary artery disease until the patient suffers a heart attack.  Because the arteries may narrow very slowly over years the patient may not realize that they are suffering from CAD.  Some of the symptoms that you may have include:

Angina (Chest Pain)

Shortness of breath

Heart Attack. 

Tests to Diagnoses Severe Coronary Artery Disease:

If the doctors suspects CAD he will request a complete medical history, perform a basic physical exam, and order blood test.  Other tests that may be done to diagnose coronary artery disease are:

ECG Electrocardiogram

Echocardiogram

Stress test

Coronary catheterization

CT scan

MRA (magnetic resonance angiogram).

8.     The learned counsel also referred to the Nursing role to improve care to infarct patients and patients undergoing heart surgery: 10 years experience published in Netherlands Heart Journal on the subject the learned counsel highlighted the following abstract in the article:

Primary percutaneous intervention is the appropriate treatment nowadays.   With this change of treatment, numerous studies have shown reduced infarct sizes, a reduced length of stay, and a better long term survival in patients with an acute myocardial infarction............... 

Nurse practitioner led clinical management:

Following the operation or myocardial infraction, all patients are referred to the medical care of the nurse practitioner.  Treatment is standardised and modelled in a clinical pathway, which is supervised by the cardiologist.  Twice a week the cardiologist sees all the patients and on the other days supervision is provided through dialogue consultations between the nurse practitioner and the cardiologist.......

Postoperative care:

At admission, the nurse practitioner assesses the medical situation of the patient and determines the treatment in line with the clinical pathway and in consultation with and supervised by the cardiologist........

Four weeks after discharge the patients visit the nurse practitioner at the out patients clinic for follow up.  She evaluates the patient’s situation and changes the treatment when necessary, also supervised by the attending cardiologist.  

In respect of the present case on behalf of the patient the situation did not reach the stage an advised by the learned Author.   We are of the view observation of the learned Author on this count is not much help.  

9.     In the case on hand before CABG was conducted admittedly the patient was not subjected to exercise testing.  One of the points argued for the defense was in case of suspected Triple Vessel Disease for the detection reference was made by the learned counsel for the complainant to Accurate detection of triple vessel disease in patients with exercise induced ST segment depression after infarction the learned Authors D Mannering and others mentioned the following:

Exercise Testing:

      Symptom limited exercise testing was carried out on a motor driven treadmill by the Bruce protocol.  Patients exercised for 3 min stages at progressively increasing workloads.

Coronary Angiography:

Coronary arteriography was performed at 2.4 weeks after the exercise test on patients with significant ST segment depression who agreed to undergo the procedure.  Twelve patients with no ST segment depression.  Underwent this procedure for clinical reasons.  The arteriograms were viewed by a radiologist who was unaware of the exercise test findings.  Significate coronary artery disease was defined as 70% proximal luminal narrowing in either the left anterior descending, circumflex, or right coronary arteries or the left main stem.  Patients were then classified as having single, double, or triple vessel disease. 

In the case on hand the patient Bhavani as mentioned was not subjected to exercise testing before CABG was done.

10.     As to what Coronary Artery Bypass Surgery in respect of as to when it is an option is mentioned in a published article in India hospital tour.com under the heading Coronary bypass surgery is an option if, why Coronary Artery Bypass Graft Surgery in India (CABG) as to why it is done it is stated:

Coronary bypass surgery is an option if:

• You have severe chest pain caused by narrowing of several of the arteries that supply your heart muscle, leaving the muscle short of blood during even light exercise or at test.  Sometimes angioplasty and stenting will bring relief in this situation, but for some types of blockages, coronary bypass surgery may be the best option.
• You have more than one diseased coronary artery and the hearts main pump the left ventricle is not functioning well. 
• Your left main coronary artery is severely narrowed or blocked.  This artery supplies most of the blood to the left ventricle.
• You have an artery blockage for which angioplasty isn’t appropriate, you’ve had a previous angioplasty or stent.

Placement that hasnt been successful, or you ve had stent placement but the artery has narrowed again (restenosis), then your doctor may recommended coronary artery bypass surgery.

Coronary bypass surgery doesnt cure the underlying hear disease that caused blockages in the first place.  This disease is referred to as atherosclerosis or coronary artery disease.    

India (CABG)?

To prepare for coronary bypass surgery, your doctor will give you specific instructions about any activity restrictions and changes in your diet or medications you should follow before surgery.  Youll need several presurgical tests, often including chest Xrays, blood tests, an electrocardiogram and a coronary angiogram, which is a special type of Xray procedure that uses dye to visualize the arteries that feed your heat.  Most people are admitted to the hospital the morning of the day of surgery.  

Again it is mentioned to what you can expect with Coronary Artery Bypass Graft Surgery (CABG) in India the following:

During the procedure:

Most coronary bypass surgeries are done through a large incision in the chest while blood flow is diverted through a heartlung machine (called onpump coronary bypass surgery).

Your Indian surgeon makes an incision down the centre of the chest, along the breastbone.  The rib cage is spread open to expose the heart.  After the chest is opened, the heart is temporarily stopped and a heart lung machine takes over blood circulation to the body.

Your Indian surgeon takes a section of healthy blood vessel, often from inside the chest wall (the internal mammary artery) or from the lower leg, and attaches the ends above and below the blocked artery so that blood flow is diverted (bypassed) around the narrowed protion of the diseased artery.

There are other methods your Indian surgeon may use if youre having coronary bypass surgery:

• Off pump or beating heart surgery.  This procedure allows surgery to be done on the still beating heart using special equipment to stabilize or quiet the area of the heart your Indian surgeon is working on.  This type of surgery is challenging because the heart is still moving.  Because of this, its not an option for everyone.  The long term outcome of this type of procedure is not yet known, and there have been no proven benefits of this technique over standard coronary bypass using the heart lung machine in the average patient.
• Minimally invasive surgery.  In this procedure, a surgeon performs coronary bypass through a smaller incision in the chest, often with the use of robotics and video imaging that help the surgeon operate in a small area.  Variations of minimally invasive surgery may be called post access or keyhole surgery.

Once youre anesthetized, a breathing tube is inserted through your mouth.  This tube attaches to a ventilator, which breathes for you during and immediately after the surgery.

After the procedure:

Coronary bypass surgery is a major operation.  Expect to spend a day or two in the intensive care unit after coronary bypass surgery.  Here, your heart, blood pressure, breathing and other vital signs will be continuously monitored. A perfusionist (a special trained to operate the heart lung machine) may remain on standby during your operation.    

11.     Learned counsel also referred to SingHealth on Conditions and Treatments of heart bypass surgery on CABG it is mentioned in this article as under various headings as to Introduction, Risk Factors, Prevention, Treatment and post procedure and also as to on whom CABG can be performed and also the risk facts as follows:

Introduction:

Heart attack is the second commonest cause of death after cancer in Singapore.  It is also the third commonest reason for patients to be admitted into hospital.  Coronary artery bypass grafting (CABG) surgery performed for this condition, is the most common open heart operation.

Risk Factors:

The risk factors for heart disease include diabetes, high blood pressure, excessive blood cholesterol, obesity and smoking.  Although increasing age and male gender increases the risks as well, these are non modifiable risk.  A strong family history of coronary artery disease however (especially first degree relatives younger than 50 years old) should prompt early consultation when symptoms arise. 

Prevention:

A healthy lifestyle is a lifelong investment: regular 30 minute walk, smoking cessation, a balanced natural diet, maintaining a healthy weight, together with appropriately treated diabetes and high blood pressure is a good start.

Treatment:

The mainstay of treatment for coronary artery disease remains medication.  Some patients will require invasive intervention such as coronary artery bypass grafting (CABG) What Happens After the Procedure? Bypass surgery aims to return patients to gainful employment, or active retirement with a restored sense of wellbeing.  You will have to continue to invest in charges that maintain this gain.  You must comply with prescribed medication, smoking cessation, weight control, and adhere to a diet low in salt, fat and cholesterol. How long is the period of convalescence? An uncomplicated hospital stay may last a week, whilst your surgical wounds will completely heal between 6 weeks to 2 months. Must I change my life style?Coronary bypass surgery aims to enable patients to gainful employment, or active retirement with a restored sense of well being.  You will have to continue to invest in changes that maintain this gain.  You must comply with prescribed medication, smoking cessation, weight control and adhere to a diet low in salt, fat and cholesterol. Can CABG be performed in all patients? It is not appropriate or feasible in all patients.  Patients with single vessel disease without much symptoms can be managed medically.  Patients with diffuse coronary atheroma with poor target arteries and those with occluded coronary vessels without lumen, are not suitable for CABG.  In some patients with significant co morbid conditions CABG may be prohibitive. Myocardial infarction (heart attack), stroke infection, haemorrhage and renal failure are the major complications. 

12.     Referring to the above it was argued that opposite parties did not get informed consent from the patient Bhavani her son the complainant her son in law before performing CABG.   It was also argued that before obtaining the signature of Bhavani on the consent form for surgery the pros and cons as to what would happen if surgery performed and what are the risk factors and what are the lightly consequences of the surgery done was never explained to Bhavani the patient the complainant or son in law.   Hence an opportunity the patient and also to complainant to give an informed consent or refuse consent was not provided.

13.     We now look in to the consent form wherein the signatures of the patient Bhavani her son the complainant and son in law were obtained.  The general consent form is in the patient case sheet. The signature on this document is obtained on 16.1.13 both of complainant and also the Shekar the son in law of the patient.

14.      In fact Ex.R2 is the consent to Surgery/Anaesthesia for CABG; it is dated 18.1.2013 at 8.50 Dr. Harish R Nair opposite party No.2 whose name is found it is mentioned that the operation is performed by Dr. Harish R Nair and Dr. Rakesh.    It mentions the mortality risk of the operation as of 3 to 5% and that the complications like prolonged ventilation, bleeding requiring re exploration, cerebro vascular stroke, kidney failure, lung complications like pneumonia, low cardiac output requiring ballon pump, jaundice, infections,  etc. were mentioned then the patient might require undergo additional procedure in the post operative as is necessary is also mentioned.  In this document though the document is dated 18.1.13 the signature of Bhavani the patient is found at the appropriate column with date 17.1.2013 and the time 12.30 pm put by her as both are of same handwriting and pen is seen. The complainant the son the Shekar the son in law have also signed in this document.   We do not find the signature of any of the doctors opposite party No.1 to No.3 or anaesthesiologist either their presence or that they have not signed to this document to show their presence.  As mentioned the signature of Bhavani is obtained as 17.1.13 at 12.30 the document itself is dated 18.1.2013.  Thus it is clear the presence of doctors is not recorded in this document. In this case the presence of anaesthesiologist is also not found at Ex.R2 at the time when the signature to this form was obtained of the patient as well as her son and son in law.

15.     As to the effect of not taking the informed consent National Consumer Disputes Redressal Commission, New Delhi on considering to the informed consent  in Multi Speciality Medical Centre And Hospital & Anr vs Rukhmani & Anr 2016 (2) CPR 233 (NC) while referring to the various provisions of C P Act 1986 it is held:  

Consumer Protection Act, 1986 Sections 15, 17, 19 and 21 Medical services Medical negligence Spinal surgery Complications compensation of Rs.1,50,000/ awarded by District Forum It is stated by the treating doctor that entire pros and cons were explained to patient but this is not substantiated by any documentary evidence Informed consent was not taken prior to surgery, pros and cons were not explained to patient and there is no substantial reasons given by Revision Petitioners for absence of a Neuro Surgeon during procedure or even during post care Discharge summary does not disclose that patient was ever seen by a Neuro Surgeon or any such consultation was taken Fact remains that patient is paraplegic No any illegality or infirmity in concurrent finding of Fora below Revision petition dismissed.  

Thus it is clear from Ex.R2 there is nothing to show the entire procedure the benefit and also likely adverse consequence of the CABG and the likely benefits of CABG and if not performing CABG or other options available to the patient Bhavani or her son or son in law were explained by opposite parties.   

16.     To the similar effect is the law laid down by National Consumer Disputes Redressal Commission, New Delhi in A.K. Mittal (Dr) vs Raj Kumar II (2009) CPJ 160 (NC) while contending that as to the informed consent was not obtained and the name of surgery, procedure and technique was not explained in consent form it was held:

Consumer Protection Act, 1986 Section 2(1)(g)  Medical Negligence Surgery Child developed facial paralysis Informed consent not obtained Name of surgery, procedure and techniques followed in performing surgery, not mentioned in consent form Nature of surgery and likely complications not explained Hospital records not given to complainant, which would enable him to present the same before AIIMS Discharge summary not produced before any Fora Negligence on part of O.Ps. Proved Compensation and cost awarded.

Like in this reported case in present case likely complications was also not explained and hospital records not given to complainant.

17.     In Medical Superintendent Lok Nayak Jai Prakash Narain Hospital & Ors. vs Km. Santosh (Minor) in 2016 (2) CPR 268 (NC)  referring to medical services and medical negligence under various provisions of C P Act section 17, 19 and 21 held inter alia :

(B) Medical Services Medical Negligence It is primary responsibility of hospital to maintain and produce patient records on demand by patient or appropriate judicial bodies How ever, it is primary duty of treating doctor to see that all documents with regard to management are written properly and signed An unsigned medical record has no legal validity Patient or their legal heirs can ask for copies of treatment records that have to be provided within 72 hours Hospital can charge a reasonable amount for administrative purposes including photocopying documents Failure to provide medical records to patients on proper demand will amount to deficiency in service and negligence It is duty of doctor or hospital to preserve, maintain medical record for certain specified period under different laws like Limitation Act, Consumer Protection Act and Directorate General of Health Service (DGHS), Prenatal Diagnostic Test Act, 1994, Clinical Establishments (Registration and Regulation) Act, 2010.  

In the case on hand has considered like in the reported case none of the doctors have signed in Ex.R2 the consent form. 

18.     As seen from the questions posted to opposite party No.1 in cross examination by way of interrogatories atheistic of Ex.C8 dated 5.3.2010 a prescription issued to Mrs. Bhanvani 66 years by opposite party No.1 was disputed.   However this document was produced by complainant himself.  Hence we did not to understand as to the Ex.C8 it is challenged by complainant in cross examination of opposite party No.1 as already mentioned earlier in this order Ex.C8, C9, C10, C11, C12, C13, C14 are all prescriptions either of opposite party No.1 or other doctors prior to admission of Bhavani in opposite party No.4 hospital.  In fact Ex.C10 is a discharge summary notes issued by K.M.C Hospital, Dr. B.R. Ambedkar Circle, Mangalore.  It mentioned diagnosis as acute uncomplicated Inf wall MI and treatment given as thrombolysed dated of admission is shown as 6.11.2012 and the discharge of 12.11.2012.  Thus it is clear from this document produced by complainant himself the complainant mother had chest angina and also prior to 6.11.2012 had MI i.e. common man wordings heart attack.  As confirmed from the Ex.C10. 

19.     In the case on hand we have seen from the admitted of the facts that on 18.1.2013 CABG was performed by opposite party No.2 on the recommendation of the opposite party No.1 the consulting cardiologist and done by opposite party No.2 with  the assistance of opposite party No.3 during post operative period when Bhavani was canvalsing in the ICU on admittedly on 24.1.2013 the opposite party No.1 left India to a Foreign county purportedly by handing over the patient to the care of opposite party No.3 to look after the patient.  In the evidence i.e. during the interrogatories even though specific question was posed to opposite party No.1.   However he had gone during that period for what purpose why he left his patient Bhavani in the critical condition was never disclosed by opposite party No.1 the nature of assessment or the purpose which made opposite party No.1 to leave India is not at all explained. 

20.     Opposite party No.3 is Dr P.S Bhat another cardiologist according to opposite parties opposite party No.3 is an equally competent cardiologist as opposite party No.1.  Hence according to opposite party No.1 he had taken all the care to look after the patient Bhavani through opposite party No.3.

21.     We may refer to Ex.R2 itself as the entire case sheet pertaining to Bhavani at Yenepoya Specialty Hospital even as admitted by opposite party No.1 and opposite party No.3 on 21.1.2013 opposite party No.1 by keeping opposite party No.3 in charge left to a foreign country.   It was pointed out for complainant that as seen from the notings in the case sheet of the patient the consultant in charge i.e. opposite party No.3 except making the advice to continue the same treatment nothing else was done by the opposite party No.3 till end.  It was also pointed out for complainant that opposite party No.1 from wherever he was never bothered even to enquire as to the condition of the patient at any point of time.  It is not the case of opposite party No.1 that he made enquiries did not taken care even as to the health condition of patient Bhavani undergoing treatment at opposite party No.4 hospital. When the attending doctor leaves the patient at the mercy of himself/herself itself amounts to medical negligence.

22.     In this connection the learned counsel for complainant referred to a reported case in Basujit Gangopadhyay (Dr) Petitioner vs Ajayendu Nag Respondent II (2010) CPJ 91 (NC) in this reported case it is held:

Consumer Protection act, 1986 Sections 2(1)(g), 14(1)(d) Medical Negligence Treatment Doctor neglected duty towards patient Given priority to commitment elsewhere Left critical patient under observation of other doctor Patient shifted from ICU to ward due to inability to bear ICU expenses Condition deteriorated Patient expired Deficiency in service and medical negligence alleged Prime object of medical profession is to render service to humanity, reward/consideration, subordinate consideration Medical interest of patient could not be sacrificed due to personal gain of doctor or nursing home Deficiency in service, medical negligence proved Compensation awarded by lower Fora upheld............

We have already noted that the physician engaged in the practice of medicine, shall give priority to the interest of patients and the personal financial interests of a physician should not conflict with the medical interests of patient.  Therefore, medical interests of patient could not be sacrificed at the alter of personal gain of the Doctor or the Nursing Home.  From 20.1.2007, I have requested Dr. S. Pradhan to look after the patient during my absence and this arrangement has been communicated to patients son and was found to be acceptable to them. In written version filed by him or in evidence as to what was the said prior commitment which forced him to leave a critical patient in the hands of Dr. S Pradhan.  Qualification or experience of Dr. S Pradhan has not been disclosed anywhere in the written version filed by the Appellant or in the evidence. 

23.     However the learned counsel for opposite parties referred to a reported caser in Shri Manishbhai Kantilal Joshi vs Sheth P.T Surat General Hospital & 2 Ors. in Consumer Case No.366 of 2014 of NCDRC, New Delhi in order dated 9^th February 2016 in this reported case the facts are such the patient Kanti Lal C. Joshi was 86 years admitted in opposite party No.1 hospital on 19.11.2012 under another doctor but later put under the treatment of opposite party No.2 Dr. Sameer Gami and the patient expired on 21.11.2012 at about 2.30 am while on ventilator.  In the night of 20.11.2012 he was under the care of opposite party No.3 Dr. S.S. Indorwala after opposite party No.2 Dr. Sameer Gami had retired for the day.  The allegation against opposite party No.2 Dr. Sameer Gami was that he had left for out station when the patient was still admitted in the hospital under his treatment without giving instruction to opposite party No.3 Dr. S.S. Indorwala who otherwise was not a qualified specialist in the relevant field.  By considering that the doctor like any other professional can take leave if felt necessary by him on account of his personal reason or otherwise.  If that happens it is for the hospital in which the patient is admitted to make alternative arrangement for the treatment of the patient at the hospital by noting that the patient was assumed in the hospital opposite party No.2 therein in the absence of the opposite party No.2, the patient was treated by some of the doctor available in the hospital or called by the hospital from outside on that basis there is no negligence on the part of the opposite party No.2 even if we assume that he had left for outstation on 20.11.2012.  So long as the doctor treating the patient in the absence of the previous doctor is a competent doctor he should have no difficulty in treating the patient on the basis of the record prepared in the hospital.

24.      Ongoing through this reported case one referred by complainant on the same subject in Basujit Gangopadhyay Dr. case referred earlier it is to be noted that though Manishbhai Kantilal Joshi case is subsequent one that is no reference in this reported case to the what is laid down in Basujit Gangopadhyay case.   Another fact to be noted is in Manishbhai Kantilal Joshi case absence of the doctor was for a short period only unlike in the case on hand.

25.     Thus it is clear that opposite party No.1 was negligent who did not care either to make enquiry about Bhavani after he left her to the care of opposite party No.3 and left to an undisclosed location of undisclosed foreign country.

26.     Even as regards opposite party No.3 is concerned he did not take care other than endorsing seen the patient and endorsing continuing the treatment what course of action should be done is not mentioned nor any course correction was advised by opposite party No.3 when the condition of the patient Bhavani was deteriorating.  Hence on this score both opposite party No.1 and opposite party No.3 has to be held as negligent in taking care of the Bhavani the patient.

27.     Learned counsel for complainant has relied on a reported article on Multi-vessel coronary disease and percutaneous coronary intervention by C Casey and David F Fraxon wherein the learned Authors mention as to the alternative available to CABG.  The learned Authors made mention to the following:

The goal of percutaneous coronary intervention (PCI) is to provide a safe, effective, less invasive alternative to coronary artery bypass graft surgery (CABG). In addition, developments in adjuvant pharmacotherapy have further improved outcomes of percutaneous procedures.  The results of many large trials in the 1990s have shown that percutaneous intervention can be equally successful when compared to the gold standard CABG for patients with multi vessel coronary artery disease.  Now with advances in coronary stent technology, including drug eluting stents, multi vessel angioplasty is set to make another leap forward with further expansion of the indications and improved outcomes. It is widely anticipated that the gap in repeat procedures may being to close with the advent of drug eluting stents. Unfavourable anatomy is the most common reason for not performing PCI, and the most common anatomical abnormality is a chronic total occlusion occurring in 50% of patients turned down for PCI.  

The decision to choose PCI as a revascularisation strategy should be based not only on whether it can be done safely and successfully, based on the coronary anatomy, but that it should be done based on the morbidity and risk when compared to the alternative of medical or surgical treatment.   

28.     While mentioning on Restenosis, Radiation, and Drug Eluting Stents and conclusions the learned Author observed the following:

Restenosis has remained one of the main limitations of coronary angioplasty since its introduction 25 years ago.  While stents have reduced the problem by 50% through prevention of remodelling, restenosis continues to be a significant problem particularly for patients with multi vessel disease. The most promising drug eluting stents have produced dramatic decreases in restenosis rates.  A large number of drug eluting stents are undergoing clinical investigation currently, but two drugs have shown the greatest promise-rapamycin (sirolimus) and paclitaxel.

Conclusions:

Patients with multi vessel disease comprise the majority of patients undergoing PCI today and will likely remain so.  With improved techniques, stents, and adjunctive drugs, outcomes have improved significantly.  It is anticipated that if the early experience with drug eluting stents is replicated in multi vessel disease then the outcomes of PCI will be equivalent to CABG.  PCI would therefore become a preferred strategy for the majority of patients needing revascularisation.  The future is clearly bright for angioplasty and the advances over the past 25 years have been truly remarkable.

Thus it was pointed out by referring to the above medical reports that there were alternative available to CABG.  The attention of the patient Bhavani and of complainant, and son in law Shekar of the decease patient was not brought these alternatives available.  Of course it is clear that these alternative were not referred as to the alternative advice to CABG which obtaining the consent for the CABG either of the patient or of complainant her son or her son in law.

29.     In the case on hand the CABG performed on beating heart coronary artery bypass graft (off pump CABG) in respect of this reference was made to the observation of nmc Heartcare copy which is produced by the learned counsel it is observed:

Beating Heart Coronary Artery Bypass Graft (Off pump CABG) Off Pump Coronary Artery Bypass (OPCAB), also called Beating Heart surgery, is an operation to treat narrowed or blocked coronary arteries by going around or bypassing the blocked artery to increase blood flow to the heart.  Traditionally, open-heart surgery is performed with the heart stopped and the patient on cardiopulmonary bypass (CPB) to oxygenate and circulate the blood while the heart is stopped. OPCAB surgery is performed without the patient on cardiopulmonary bypass (CPB) and with the heart still beating.  This surgery may be performed on an emergency basis following a heart attack or on an elective basis when conservative treatment measures have failed to relieve symptoms of Coronary Artery Disease such as chest pain and shortness of breath.  To learn more about Off pump Coronary Bypass Surgery, let us first learn about the normal anatomy of the heart.

What is OPCAB? If conservative treatment options for coronary artery disease are unsuccessful and you continue to have chest pain or are at risk of having a heart attack, your cardiologist may refer you to a cardiothoracic surgeon for coronary artery bypass surgery.  One type of bypass surgery that may be recommended is called Off Pump Coronary Artery Bypass.

Off Pump Coronary Artery Bypass (OPCAB) also called Beating Heart surgery, is an operation to treat narrowed or blocked coronary arteries.  

30.     The publication also mentions as to whether opposite party can be done CABG on every patient the exclusions and which is not advisable this tabulated some of which with we are concerned are as follows:

OPCAB surgery is not for everyone and your surgeon will discuss with you whether this surgery is a good option for your particular situation.

• Elderly patients (over 70) with multiple diseased vessels
• Patients with a high risk of stroke (CVA) or with a previous history of stroke or transient
• Ischemic attacks (TIA of mini stoke)
• Patients with a low EF (ejection fraction) indicating poor heart function
• Patients with heavy atherosclerosis in the aorta

OPCAB is not recommended in the following patients:

• Patients with blockages extending into the heart muscle

31.     In respect of Surgical Procedure risks and complications of CABG it is mentioned it is important that you i.e. the patient are informed of these risk that the procedure takes place:

It is important that you are informed of these risks before the procedure takes place.  Most patients do not have complications after Coronary Artery Bypass Graft Surgery; however complications can occur and depend on what type of surgery your doctor performs as well as the patients health status (i.e. obese, diabetic, smoker etc) Complications can be medical (general) or specific to Coronary Bypass Surgery Medical complications include those of the anaesthesia and your general wellbeing.  Almost any medical condition can occur so this list is not complete.  Complications include:

• Allergic reaction to medications or dye
• Blood loss requiring transfusion with its low risk of disease transmission
• Heart attack, strokes, kidney failure, pneumonia, bladder infections
• Complications from nerve blocks such as infection or nerve damage
• Serious medical problems can lead to ongoing health concerns, prolonged hospitalization, or rarely death.

Specific complications for Coronary Artery Bypass Graft surgery include:

• Heat Attack
• Stroke
• Bleeding
• Deep wound infection requiring IV antibiotics and possible surgical debridement
• Arrhythmia (Irregular heart beat)
• Nerve damage causing weakness, neuropathy, or paralysis
• Blood vessel damage requiring an operation for repair
• Vein graft occlusion or stenosis
• Recurrent Angina
• Blood clots
• Death (less than 3%)

Thus as ongoing though these it is clear that care were not taken and not informed either to the patient, complainant or son-in-law.  In fact it is in evidence of complainant that his mother Bhavani subsequent to CABG had a bloated body appearance as though she had some allergic reaction but none of the attending doctors or the nurses gave any answer to the questions of complainant or other relatives. 

32.     In fact The Influence of cognitive reserve on neuropsychological functioning following coronary artery bypass grafting (CABG) publication Susan A Ropacki and others the learned Authors make mention and the increased recognized as of complication after cardiac surgery in the following words:

Neuropsychological impairment is common, yet variable, after coronary artery bypass grafting (CABG). Neuropsychological impairment has been increasingly recognized as a complication after cardiac surgery, in general, and coronary artery bypass grafting (CABG) in particular.  Despite important advances in surgical techniques and clinical management of patients, neuropsychological impairment remains a problematic side effect for many of those who undergo CABG.

Despite procedural changes that lower the incidence of microemboli, increase cerebral perfusion, and regulate potentially damaging temperature changes, post operative neuropsychological dysfunction clearly remains a problematic side effect for a number of CABG patients.  This suggests that some other mechanism(s) may be contributory.

33.     In the case on hand on behalf of opposite party No.1 it was pointed out after 5.3.2010 examination of Bhavani by complainant who was referred by Dr. T Rathnakar Senior Ophthalmologist opposite party No.1 had done pre operative assessment for cataract surgery as she was suffering from Ischaemic Heart Disease and Hypertension and Anti hypertensive and Anti Platelet medicines along with medicines for Ischaemic Heart Disease. Opposite party No.1 had after evaluation cleared Bhavani for cataract surgery and she was admitted at Athena Hospital, Mangalore for giddiness and chest pain and was taken for ICU on the said hospital at December 2011.  As she was diagnosed to have unstable angina of mild degree.   He also mentions that he treated her in the said hospital and had prescribed with Cardiac Antiplatelet, Anti anginal and Anti Hypertensive medicines and was thereafter discharged by prescribing medications.  She was periodically visiting opposite party No.1 and there was no problem till November 2012.  We have already referred to the details of the prescription chits of opposite party No.1 given to Bhavani produced by complainant himself as already referred.  One thing is certain from the above, when Dr. T. Rathnakar referred Bhavani to opposite party No.1 for evaluation, she was already on medication for Ischaemic Heart Disease and Hypertension and Anti hypertensive and Antiplatelet medicines for ischemic heart disease.  

34.     Opposite party further claims on 6.11.12 Bhavani was admitted with server chest pain with sweating at K.M.C, Hospital, Ambedkar Circle, Mangalore and opposite party No.1 was intimated and she was diagnosed by him ought to have acute uncomplicated inferior wall myocardial infraction i.e. heart attack.   He also mentions she was in the ICU of K.M.C, Hospital, Ambedkar Circle, Mangalore and all the modalities of the treatment was discussed with the patient, children as well as in laws of the patient and they opted for management by Thrombolysis and she recovered and was discharged on 12.11.2012 on antiplatelets, lipid lowering medications and to have life style modifications with the advice of that attend for the review after three weeks.  In fact Ex.C10 is that discharge note of Bhavani from K.M.C Hospital.

 35.     It is not in dispute opposite party No.1 also mentions that after 3 weeks when patient Bhavani appeared she was presented with the New York Hear Association Grade III cardiac symptoms despite of medication and she was hypertensive for past 8 years and had TIA (transient ischemic attack of the brain) 10 years back while in Bangalore.  He also mentions that she was advised by opposite party No.1 to undergo simple coronary angiogram test at the hospital of her choice as the same would help to decide the coronary anatomy and the failure course of action. He also says on the advice angiogram was carried out which revealed multiple vessel disease (TVD) the patient was informed that CABG would be the most appropriate remedy in view of the medications proving to be ineffective.

36.     Referring to the above it was argued for opposite party No.1 and the opposite parties that with no other alternate remedy available CABG was advised and with consent of the patient and complainant her son and the Shekar her son in law CABG was carried out on the patient Bhavani on 18.1.2013 after she was admitted.  However as we have discussed earlier there is no informed consent of the patient Bhavani and of complainant and son-in-law of the deceased patient were obtained before the surgery CABG was performed.  

37.  In this case as considered in the last paragraph and the earlier paras Bhavani was under the care and treatment of opposite party No.1 for her problem related with her heart for quite some time.  In fact from the evidence available on record it is clear at least from 5.3.2010 at Ex.C8 we are not certain, rather it is not brought to the notice of this Forum since when Bhavani was under the care and treatment and advise of opposite party No.1 prior to 5.3.2010 or any other physician or cardiologist for her problems.  In fact it is the specific case of opposite party No.1 that during the treatment of Bhavani both at opposite party No.4 hospital in December 2012 and earlier care hospitalization and when she was in ICU at K.M.C Hospital, Ambedkar Circle, Mangalore as per Ex.C10 showed hospitalization from 6.11.12 to 12.11.2012 with the endorsement diagnosis as Acute uncomplicated Inf wall MI and in treatment given column mentions as Thrombolysed. However Ex.C10 does not mention of advice for CABG.   In fact the case sheet mentioned by opposite party as at page 1 contains Coronary Angiography Report of Bhavani dated 5.12.2012 for which we have made mention earlier in this order.  It shows the consultant doctor as opposite party No.1 and indication as Old Inferior wall MI, Frequent Angina and the procedure shown as Selective Coronary Angiography and the final impression is shown as TVD and the recommendations as CABG.  What we can make out from this document is signed by Dr. R L Kamath i.e. opposite party No.1 MD, DM Card…, Interventional Cardiologist after coronary angiography of 5.12.2012 recommendations for CABG and it does not contain the details of what are the pros and cons advice tendered to either Bhavani or her son or any other relatives of the patient.  This sheet also shows that she was an impatient at Yenepoya Specialty Hospital with IP Number mentioned as A7065.  Hence we are of the view the claim of opposite parties that Bhavani, her son and son in law were not informed about the benefit and contraindications of the CABG cannot be accepted.   Scanned copy of page 1 of case sheet is:

38.     In respect of opposite party No.2 Dr. Harish Nair as seen from the argument advanced and also the evidence of the opposite party No.2 are only in line with the arguments canvased for opposite party No.1 as can be seen from the evidence on record there is no specific assertion made against opposite party No.2 by complainant.  In fact the CABG was done by opposite party No.2 with the assistance of Dr. Rakesh Cardiothoracic Anaesthesiologist.  

39.     In respect of argument of the complainant there is no entry in the case sheet with SIELE by referring to surgery she sought in the recommended all was due to hypoxic or ischaemic hepatitis and a SIELE measured liver injury in the medical literature details that ischaemic hepatitis is known as SIELE.

40.     Learned counsel for complainant referring to the consent form where there is no mention as to the nature of the procedure that is to be adopted the nature of surgical procedure to be carried out was not mentioned argued that such lapse amounts to medical negligence.   In this connection the learned counsel seeks substantiate on his argument from the reported judgment of the Apex Court in Samira Kohli Appellant vs Prabha Manchand (Dr.) & Anr respondents wherein at para 32 of the judgment reported in S.C and National Commission Consumer Law Cases (2005 2008) at page 574 relevant page at 587 mentions:

32. We may now summarize principles relating to consent as follows:

(i) A doctor has to seek and secure the consent of the patient before commencing a treatment (the term treatment includes surgery also).  The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.

(ii) The adequate information to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not.  This means that the Doctor, should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternative if any available; (c) an outline of the substantial risks, and (d) adverse consequences of refusing treatment.  But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment.  Similarly, there is no need to explain the remote of theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment.  A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.

(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment.  Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure.  The fact that the unAuthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort of negligence or assault and battery.  The only exception to this rule is where the additional procedure though unAuthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unAuthorized procedure until patient regains consciousness and takes a decision.

(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated.  There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.

(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as a normal and proper by a body of medical men skilled and experienced in the particular field.  It will depend upon the physical and mental condition of the patient, the nature of treatment and the risk and consequences attached to the treatment.

Ongoing through this guide line in this reported case and law laid down therein and the facts of the case on hand at we are unable to persuade ourselves to accept the argument of opposite parties that informed consent of Bhavnai and of complainant was obtained before the CABG.

41.     Learned counsel for opposite parties in this connection on the concept of negligences as a TORT referred to the observation made in a reported case AIR 1975 (Bom) 306 Philips India Ltd vs Kunju Punnu:

(14) The concept of negligences as a Tort is expressed in the well known definition of Alderson b.in Blyth V.Birmingham Waterworks Co., (1856) 11 Exch 781, as under:

negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.  Lord Wright in Lochgelly Iron and Conal Co.V.M mullan, (1934) AC1, 25 said: in strict legal analvisis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concent of duty, breach and damage thereby suffered by the person to whom the duty was owing.

42.     Reference was also made in the above reported judgment to the observation of the Lord Denning in M.R. in Hucks v. Cole, (1968) 118 New Law Journal 469 of the above reported judgment in the Philips India Ltd as follows:

 a charge of professional negligence against a medical man was serious.  It stood on a different footing to a charge of negligence against the Driver of a motor car.  The consequences were far more serious.  If affected his professional status and reputation.  The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear.  With the best will in the world, thinks sometimes went amiss in surgical operations or medical treatment.  A doctor was not to be held negligent simply because something went wrong.  He was not liable for mischance or misadventure; or for an error of judgment.  He was not liable for taking one choice out of two or for favouring one school rather than another.  He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might deserving of censure of inexcusable. 

43.     In Martin F. DSouza vs Mohd. Ishfaq 2009 (3) SCC 1 while considering the liability of a medical practitioner as to when he has to be held negligent, at para 41 the following observation, by relying on a earlier reported case of Supreme Court in Achutrao Haribhau Khodwa & Others vs. State of Maharashtra & Others as follows:

41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.  He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field, For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & Others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.

44.     Reference was also made by the learned counsel for opposite parties to Ms. Ins. Malhotra vs Dr. A Kriplani & Other 2009 (4) SC 705 where in it is held inter alia at para 18.1:

18.1) In the case of MEDICAL NEGLIGENCE, it has been held that the subject of negligence in the context of medical profession necessarily calls for treatment with a difference.  There is a medical tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish.  Things have gone wrong and, therefore, somebody must be found to answer for it.  An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed.  It can be demonstrated that actual blame for the outcome has to be attributed with great caution.  For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not.  The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctors contribution is either relatively or completely blameless.  The human body and its working is nothing less than a misimpressions, misgivings and misplaced allegations against the operator, i.e. the doctor, cannot be ruled out.  One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life.  The factors of pressing need and limited resources cannot be ruled out from consideration.  Dealing with a case of MEDICAL NEGLIGENCE needs a deeper understanding of the practical side of medicine.  The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future.  The human body and medical science, both are too complex to be easily understood.  To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in depth understanding of the  working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.   

45.     In fact reference was also made in the above reported judgment to another case Dr. C.P. Sreekumar, M.S (Ortho) Vs S. Ramanujam 2009 (7) SCC 130 wherein it is held inter alia by (referring to Jacob Mathew Case).

(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.

46.     In Kusum Sharma & Others Vs Batra Hospital & Medical Research Centre & Others 2010 (3) SCC 480 it is held at para 52 inter alia:

 It was also observed in the same case that We must not look at the 1947 accident with 1954 spectacles: But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong.  Doctors would be led to think more of their own safety than of the good of their patients.  Initiative would be stifled and confidence shaken.  A proper sense of proportion requires us to have a regard to the conditions in which hospitals and doctors have to work.  We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.

47.     And again at para 77 by referring to Jacob Mathews case wherein it is held:

 In Jacob Mathews case this court observed that higher the acuteness in emergency and higher the complication, more are the chances of error of judgment.  The court further observed as under:

25........At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil.  The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believe as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.  Which course is more appropriate to follow, would depend on the facts and circumstances of a given case.  The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in charge of the patient if the patient is not be in a position to give consent before adopting a given procedure.  So long as it can be found that the procedure which was in fact adopted was ne which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.  

48.     Again it was held at para 78:

78. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering.  He does not gain anything by acting with negligence or by omitting to do an act.  Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally.  This court in Jacob Mathews case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end dose of medicine to his patient. 

49.     As to what should be the standard apply while considering medical negligence in the above mentioned Kusum Sharma case at para 90 again by referring to Jacob Mathews case and observation of the learned Author Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) on the aspect to duty, breach and resulting damage observed:

(2) Negligence in the context of 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, it not proof of negligence on the part of a medical professional.  So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.

(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.  It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices.  A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.   

50.     Learned counsel for opposite parties has also drawn our attention to Cardiovascular Diagnosis & Therapy on Impact of Statins and beta-blocker therapy on mortality after coronary artery bypass graft surgery where it is observed that the AHA/ACC guidelines recommend long tern aspirin and statin therapy in all patients after CABG, their comments on beta-blockers used are encouraging by use in the immediate preoperative period to reduce the risk of atrial fibrillation. Again in concluding the learned Authors observed a post discharge regimen of stains independently reduces overall and 1 year mortality.

51.     In ACC/AHA Practice Guidelines the paper about guide line for Coronary Artery Bypass Graft Surgery Executive Summary and Recommendations makes mentions of the following on Three Vessel Disease and LV Function:

2. Three-Vessel Disease: 

If one defines 3 vessel disease as stenosis of 50% or more in all 3 major coronary territories, the overall extension of survival was 7 months in CABG patients compared with medically treated patients.  Patients with class III of IV angina, those with more proximal and severe LAD stenosis, those with worse LV function, and/or those with more positive stress tests derived more benefit from surgery.

4. LV Function:

In patients with mildly to moderately depressed LV function, the poorer the LV function, the greater was the potential advantage of CAGB surgery.  Although the relative benefit was similar, the absolute benefit was greater because of the high risk profile of these patients. 

52.     Learned counsel for opposite parties also relied on the Editorial Comment on Surgery, Angioplasty, or Medical Therapy for Symptomatic Multivessel Coronary Artery Disease in Journal of American College of Cardiology another to other the following observation made:

We can that, for many CAD patients with stable angina, CABG surgery compared with medical therapy improves both the quality and quantity of life.  Coronary artery bypass graft surgery is a clear winner..........

53.     Reference was also made the observations in CABG vs Stents:  Know Your Options paper wherein reference was made by the learned Authors as follows:

New England Journal of Medicine concluded that for patients with two or more diseased coronary arteries, CABG is associated with higher adjusted rates of long term survival  than stenting.  That study showed that patients with three blocked arties who received stents were 56 percent more likely to die within three years as those who had bypass surgery.  

54.     In optimal Timing of Coronary Artery Bypass Graft Surgery After Acute Myocardial Infarction learned counsel for opposite parties on the paper as to discussion as drawn our attention to the following observations:

In the early 1970s, surgical revascularization within the first 2 months of AMI was associated with a 14.5% to 20% mortality.  The recommendation then was to wait 30 days after AMI before revascularization.

55.     In fact The Heart Manual of Cardiology 11^th edition edited by Robert A. O Rourke, MD and others while mentioning as to CABG observed the following at page 283:

CABG should be considered in those groups in whom it has been shown to be of proven benefit: patients with triple-vessel disease, patients with ischemia, and those with significant LV dysfunction.

56.     Reference was also made for the learned counsel for opposite parties observation in Interventional Cardiology 6^th edition Eric J. Topol, MD and Paul S. Teirstein, MD the learned Authors while comparing the eluting stents with CABG under the heading Registries have this to say:

Registries:

The New York cardiac registry was also interrogated for the comparison of CABG with drug eluting stents.  In an analysis based on 7,437 patients with CABG and 9,963 patients with drug eluting stents, CABG continued to be associated with lower mortality rates than did treatment with drug eluting stents  it was also associated with lower rates of death or MI and repeat revascularization. 

They have further observed:

In the majority of patient suffering from three vessel disease without left main involvement, the SYNTAX study suggests CABG as the preferred revascularization strategy because it improves survival and reduces the risk of MI as well as the need for intervention.  

57.     Referring to this the learned counsel for opposite parties argued that the CABG was better option available  when compared to drug eluting stents as such the procedure adopted, according to the learned counsel by opposite parties in opting for the CABG cannot be construed as the negligence approach.

58.     The learned counsel as also produced the copies of the medical degree certificates issued by University of Kerala in respect of opposite party No.2 Harsih R. and also as per which the certificate was issued by in Faculty of Medicine to opposite party No.2 in the branch of Thoracic and Cardio Vascular Surgery the examination held in the month of January 1994.   Another certificate produced also of opposite party No.2 issued by Mahatma Gandhi University as Faculty of Medicine Degree of Master of Surgery in the Branch of General Surgery examination held in June 1991. Similar certificate issued by Rakesh M G by Sri Ramachandra University the Faculty of Medicine the degree of Doctor of Medicine D M Cardiothoracic Anaesthesiology the examination held in December 2007. 

59.    In respect of opposite party No.3 it was argued that he had monitored the condition of the patient from 24.1.2013 as and when required by opposite party No.2 and Dr. Rakesh.   He also mentioned that once the patient taken for surgery the pre operative management of the patient is done by Cardiothorasic team comprised of Cardiothorasic Surgeon and Cardiac Anaesthetist/Intensivist i.e. opposite party No.2 and Dr. Rakesh.  He has also mentioned that during the period from 24.1.2013 till the patient’s death there was no medical need to specially examine the patient for any specific medical complication or diagnose the same or to prescribe any additional drugs or to alter any drugs by opposite party No.3.  It is also mentioned opposite party No.2 and No.3 who were in charge and control of the patient used to have consultations with this opposite party on daily basis and required to be done or actually done by opposite party No.3 as the role of the cardiologist was minimal when the patient undergoing surgery and post surgical care except instructing the nurses to continue the drugs already commenced prior to 24.1.2013 by Dr. R L Kamath.  As far as this contention of the learned counsel is liable to be accepted.

60.     It is seen from patients case sheet that on 20.1.2013 at 21.40 hours there is mention made that phone call received from Dr. R L Kamath about patient condition and he advised to continue the same treatment.  21.1.2013 at 19 hours Dr. R L Kamath visited the patient there is no other mention made in the nurses note as to what was advised by him.  22.1.2013 in the nurses note at 18.45 hours S/b (seen by?) Dr. R L Kamath advised to continue the same treatment.  23.1.2013, the nurses note at 19.30 hrs mentions Dr. RL Kamath i.e. opposite party No.1 advised to continue same treatment. 

61.     The doctors note pertaining to be used by consultant in charge at sheet No.25 on the second page there is entry made by opposite party No.1 on 24.1.2013 as follows: I will be out of station for next 5 days requesting Dr P.S. Bhat, Cardiologist i.e. opposite party No.3 to take the charge of the management of the patient personally Sd/ Dr. R L Kamath.

62.       Case sheet pertaining to deceased Bhavani produced by opposite party a Coronary Angiograph Report dated 5.12.2012 with Dr. R L Kamath i.e. opposite party No.1 as a consultant mentions of the indication as Old Inferior wall MI, Frequent Angina and the Procedure as Selective Coronary Angiography the rout is shown as Right femoral Artery the final impression is shown as TVD and the Recommendations is shown as CABG signed by opposite party No.1. Thus it is clear as earlier as 5.12.2012 not only Selective Coronary Angiography was done on Bhavani on that occasion while noting the LCx: Proximal narrowing of 50% stenosis extending in for 2 cm and OM I & OM 2: Ostial narrowing with good vessel for graftable, RCA: Total proximal obstruction, PDA & PLV: Retrograde filling on left coronary injection and LV: By Echo, LVEF 40% opposite party had final impression as TVD and recommended for CABG.

63.     Under these circumstances even though patient Bhavani was on medical care of opposite party No.1 which even complainant did not dispute as the specific case of complainant as Bhavani was dutifully taking all the medications prescribed.  Ex.C16 as referred earlier is a medicine prescription issued by opposite party No.1 to Nagori Bhavani the patient on 24.11.12 with endorsement of continue the same medicine repeated prescription on 3.12.2012 and on 8.1.2013 medication prescribed and also an endorsement of needs CABG prescribed by opposite party No.1

64.     Learned counsel for complainant has drawn our attention to the paper published in Mayo Clinic Cardiology Review Second Edition by Joseph G. Murphy the Editor In Chief on the subject of Cardiac Catheterization and Myocardial Revascularization wherein he has mentioned:

Patients whose clinical condition fails to stabilize with medical therapy or those in the high risk category because of clinical findings or noninvasive test results should be considered for coronary angiography. Overall, high risk patients such as those who previously have had revascularization or patients with associated congestive heart failure, depressed left ventricular function, ventricular arrhythmia, or recurrent pain/ischemia or patients at high risk on the basis of a functional study should be considered for coronary angiography. If catheterization shows left main coronary artery disease or three vessel disease with depressed left ventricular function, the patient should be referred for CABG.  Those with two vessel disease with a proximal severe stenosis of the left anterior descending coronary artery and depressed left ventricular function should also be considered for CABG.  In general, CABG has been shown to result in a better long term outcome than medical management.  Patients with the following conditions should be considered for PTCA or CABG: medical therapy that fails to stabilize their condition, recurrent angina/ischemia that occurs at rest or with a low level of exercise, ischemia that occurs at rest or with a low level of exercise, ischemia that occurs with congestive heart failure symptoms, an S₃ gallop mitral regurgitation that is detected on physical examination, or significant ST segment depression that occurs during pain.  

65.     In the medical paper on Post operative Arrhythmias after Cardiac Surgery Incidence, Risk Factors, Cardiology Research and Practice volume 2014 while dealing on Post operative Arrhythmias after Cardiac Surgery Incidence, Risk Factors and Therapeutic Management it is mentioned that in this setting arterial fibrillation is most common heart rhythm disorder and further mentions that Arrhythmias are very common complication after cardiac surgery and represented a major source of morbidity and mortality.

66.     While considering the aspect of management the learned Author under the heading management at 5.2 has this to say:

5.2 Management:

Temporary electrical pacing may be required in symptomatic bradycardias.  In some cases, when the conduction defect does not revert, permanent pacing may be necessary.  Temporary epicardial atrial and ventricular pacing wires placed at the time of surgery usually facilitate temporary pacing.

67.     The case on hand it is on record that temporary electrical pacing was done to the patient bradycardias.  In conclusion the learned Author mentions:

6. Conclusion:

Postoperative arrhythmias are frequent in the cardiac surgery setting.  The most frequently observed POAs are supraventricular tachyarrhythmias, especially A Fib.  The general issues for the treatment of supraventricular arrhythmias are similar to those recommended in other settings.  The treatment of postoperative ventricular arrhythmias is less clear but is similarly based on general indications for the treatment of ventricular arrhythmias.  Finally, bradyarrhythmias are also frequently observed after cardiac surgery due to the conduction system trauma.  Although conduction disturbances often recover spontaneously, permanent pacemaker implantation may be required. 

68.     In the case on hand there was no permanent pacemaker fixed to the patient Bhavani.  Of course it could be seen on a close look to the case sheet the condition never reached whether possibly the opposite parties could have thought of permanent pacemaker post CABG.

69.     In VMC Virtual Medical Centre CIBIL while dealing on Coronary Artery Bypass Grafting (CABG)/ Heart Bypass Surgery mentions the pre operative preparation required and the risk of the CABG surgery in the following words and also mentions the alternative treatment to the surgery and also risks of the operation as follows:

Pre-operative preparation:

Prior to your operation your surgeon will explain the reasons for the operation, how it is performed and the common and most serious risks associated with the operation (discussed below).  You will have to sign a written consent form that proves you agree to have the operation and accept the risks explained to you.  You will also have to say whether you consent to a blood transfusion.  As cardiac surgery is major surgery and can be associated with bleeding, the doctors need your permission to administer blood products if you require them during your operation.  Many CABG operations are performed electively meaning that you will be pre-booked for the operation and come into hospital the night before the surgery.

Prior to surgery you will have to have a number of investigations which may include:

• Electrocardiogram (ECG)..........
• Echocardiogram...........
• Carotid Doppler..................
• Chest xray............

Details of the operation:

CABG surgery can be performed the traditional method (on pump using the bypass machine) or off pump where the heart is operated on whilst it is still beating.  Both methods produce similar long term results and the method is more dependent on the surgeons choice, skill and expertise.  If the former method is used, after the grafts are prepared, the heart will be connected to hear lung machine (cardio pulmonary bypass machine) by a series of tubes.  A big tube is connected to the aorta to provide the arterial supply and other cannulae are attached to the big veins leading to the heart.  The bypass machine allows all blood to be redirected from the heart and lungs so that a bloodless field can be created for the surgeon.  The bypass machine cleans, filters and warms the blood before it is returned to your body.  The body temperature is cooled to reduce the metabolic demands of the hearts.  The heart is stopped using a specialised cardioplegia solution.

Risks of CABG surgery:

Like all operations or procedures, CABG surgery carries some risks of complications.  It is a major surgery, however often cannot be avoided if you have severe heart disease.  You should be aware of the various possible risks of surgery.  You should discuss these with your doctor as they can give you a better idea of YOUR age, other medical conditions and heart function.  (Highlight is mine)

In fact, opposite parties in the case on hand failed to discuss the risks of CABG surgery with the patient and her son the complainant.

70.     On alternative treatments to the surgery it is mentioned under the subheading of alternative treatments for surgery it is mentioned:

Alternative treatments to surgery:

As previously mentioned, angioplasty and medical therapy are alternative treatments for coronary heart disease.  Both angioplasty and CABG surgery produce similar long term outcomes in terms of mortality, heart attack and strokes.  However, percutaneous stenting is associated with greater rates of repeated revascularisation treatments so CABG may be preferred in patients with significant coronary disease.  The indications for CABG discussed above are those with documented improvements in mortality and prognosis.  Note that the appropriate mode of treatment depends on a number of factors.  Your doctor will be able to decide the best treatment for you based on your symptoms, pathology and general health.   

71.     Thus on a careful consideration of evidence even as seen and the points canvased on this count or oral argument as well as written notes of arguments medical authorities cited by both sides and case laws cited by both sides we are of the view as discussed above from para 12 to 22 opposite parties No.1, No.2 and No.4 cannot escape from liability for not obtaining informed consent for the surgery performed on Bhavani i.e. CABG.  The argument on behalf of opposite party No.1 that on 5.12.12 itself as per the scanned copy of the Coronary Angiography Report though Bhavani the patient was advised CABG, at the cost of repetition, we may mention there is no indication even to suggest remotely risk involved in CABG was explained to the patient Bhavani and to complainant her son and Shekar her son in law or to any other close relatives. This failure on the part of opposite parties to give a detailed account of the advantage and the riskes involved and the heart failure to explain available other alternate treatment/surgery and its consequences lead the patient late Bhavani and complainant to possibly to consult for CABG surgery to Bhavani the patient.  The argument advanced for opposite parties that when as per scanned document report of 5.12.12 after Bhavani and complainant were advised for CABG they were at liberty to take second opinion for such a surgery before she was admitted on 16.01.2013 at opposite party No.4.   Nobody prevented from obtaining second opinion.  Possibly the argument of the learned counsel is correct. However there is nothing to suggest that opposite party No.1 either at the time of report of selective Coronary Angiography of 5.12.12 or all subsequent visit of Bhavani to opposite party No.1 prior to 16.01.2013 when Bhavani came to opposite party No.1 for consultation when opposite party No.1 prescribed medication on 8.1.2013 as per endorsement at Ex.C16 see second page.  Opposite party No.1 advised Bhavani and or complainant to take second opinion of other experts.  Considering these aspects we are of the opinion that the failure on the part of opposite party No.1 in the first place and of opposite party No.2 Thoracic and Cardio Vascular Surgeon who conducted CABG on Bhavnai and also Dr. Rakesh Cardiac Anaesthetist who was employed by opposite party No.4 there by opposite party No.4 were negligent in their duties which is nothing but deficiency in service to deceased Bhavani and to her son complainant.

72.     In so Far as the case laws cited by opposite partys learned counsel we are of the view that considering the facts on hand of not explaining the pros and cons of the CABG and other remedies available and of consequences of not undergoing the CABG would be sufficient to repute the  arguments of learned counsel for opposite parties.

73.     In respect of opposite party No.3 is concerned we have discussed in detail as to what was his role.   It is nothing but as Cardiologist to advice medicine that he had done from 24.1.2013 onwards.  As seen from the case sheet we have referred earlier subsequent to CABG done by opposite party No.2 and Dr Rakesh on Bhavani the patient the major care required are post-operative was done by opposite party No.2 and other doctors of opposite party No.4.  As observed earlier subsequent to CABG done on 18.1.13 even the role of cardiologist opposite party No.1 only to observe and advice except advising to continue the medicines till 24.1.2013 when he endorsed that he will not be available for next 5 days and that opposite party No.3 would take charge of the patient is indicative as far as a cardiologists job post operation i.e. CABG was taken care of by opposite party No.3.  Merely because opposite party No.1 did not disclose what is the destination and purpose to leave abroad, in our view this did not affect either post CABG treatment or in opposite party No.3 in continue take care of the responsibility as a cardiologist as required of cardiologist to the patient Bhavani on which he had done.  In any case opposite party No.3 was not responsible for the advice as a cardiologist for CABG to Bhavani.  In the circumstance we are of the view he cannot be saddled with the lability for deficiency in service.  As such the complaint on opposite party No.3 shall be dismissed.   We answer point No.2 partly affirmative against on opposite parties No.1, No.2 and No.4.

POINTS No. (iii):     As to compensation claimed by the complainant, claimed solatium of Rs.20,000, he had not split the nature of claim made against the opponents.  While considering the amount of compensation we have to look into the aspect as to the age of the deceased Bhavani, the earning and or how the victim was engaged herself in life and her health condition prior to this treatment the CABG surgery.  In the first place late Bhavani was aged 68 years when she was admitted for CABG at opposite party No.4 on 16.1.2013 as per case sheet.  Secondly it is no bodies case that late Bhavani was gainfully employed and or earning any monitory benefit on herself at the time of her death just prior to her admission to the hospital.  Hence we are left with considering a general figure as to her income of an unskilled person.

2.      The next point for consideration is the health condition of late Bhavani as her admission on 16.1.2013 for CABG at opposite party No.4 hospital. We have considered at length at least, as per evidence available on record, as seen from Ex.C8 since 5.3.2010 she was taking medicine for angina and hypertension.   It is also in evidence that Ex.C7 is an NECT Brain scan report of Mrs. Bhavani dated 2^nd November 2012.  The impression we find in this document about Cerebral and Cerebellar Atrophy.

3.      As we can find from the internet search Cerebellar Atrophy is a disease as a common feature means the disease that affect the brain.   Atrophy of any tissue means a decrement in the size of the cell, which can be due to progressive loss of cytoplasmic proteins in brain tissue, atrophy described a loss of neurons and the connections between them.    

4.     Thus it is clear that not only that second report of 2^nd November 2012 Ex.C7 the complainant produced by himself of Bhavani.  Ex.C14 is a medical prescription issued to Bhavani by Dr. N Shankar, Consultant Neurologist dated 2.11.2012.  Thus it is clear late Bhavani not only had complaint related to her heart but also to cerebral aspects.

5.     In respect of the treatment of the deceased at opposite party No.4 the complainant paid an amount of Rs.3,47,000 as per Ex.C1 the chit dated 28.1.2013 pertaining to Bhavani the patient considering that Bhavani was afflicted to CABG.  In the circumstance we are of the view that considering that late Bhavani was afflicted with heart operation if not CABG she ought to undergone other treatment even as admitted by complainant.  As such on a reasonable estimate awarding a compensation of Rs.5,00,000/ against opposite party No.1, No.2 and No.4 will meet the ends of justice.  Wherefore the following

ORDER

      The complaint is partly allowed with cost.  Opposite parties No.1, No.2 and No.4 jointly and severally are directed to pay compensation of Rs.5,00,000/ (Rupees Five lakh only) to complainant.   Opposite parties shall pay the amount within 30 days.  If they fail to pay the above said amount of Rs.5,00,000/ (Rupees Five lakh only)  within stipulated time they shall pay interest at the rate of 9% per annum from the date of complaint till the date of payment.

2.      Complaint against opposite party No.3 is dismissed.

     Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 70 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 12^th May 2017)

             MEMBER                                                 PRESIDENT

     (T.C. RAJASHEKAR)                         (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                   D.K. District Consumer Forum

 Additional Bench, Mangalore                   Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Pushparaj

Documents marked on behalf of the Complainant:

Ex.C1: Hospital Bill paid for Rs. 3,47,000/

Ex.C2: Certificate issued by Dr. Rakesh Consultant Cardiac   Anesthesiologist Dated 28.01.2013.

Ex.C3: Discharge summary of Yenepoya Speciality Hospital dated 05.12.2012.

Ex.C4: Clinical Pathology Test Report dated 06.11.2012

Ex.C5: Serology Test report dated 06.11.2012

Ex.C6: Biochemistry Test report dated 06.11.2012

Ex.C7: NECT Brain Report of Dr. Shankar dated 02.11.2012

Ex.C8: Prescription dated 05.03.2010.

Ex.C9: Prescription dated 02.11.2011.

Ex.C10: Discharge summary note dated 12.11.2012.

Ex.C11:  Prescription dated 12.11.2012.

Ex.C12: Prescription dated 29.12.2011

Ex.C13: Prescription dated 21.06.2012

Ex.C14: Prescription dated 02.11.2012.

Ex.C15: Echo Cardiograph report.

Ex.C16: Prescription dated 24.11.2012.

Ex.C17: Treatment summary of Yenepoya Speciality Hospital dated 16.01.2013  31.01.2013.

Ex.C18: Hospital records of Yenepoya Speciality Hospital (67 sheets)

Ex.C19: Measurement report (31 in Nos)

Ex.C20: Advance receipt dated 18.01.2013

Ex.C21: Summary bill for a sum of Rs. 3,23,900/

Ex.C22: Bill for a sum of Rs. 3,23,900/

Ex.C23:I.P. Deposit Refund Receipt for a sum of Rs.23,100/

Ex.C24 to C33: Cumulative Split up bills dated 01.02.2013.

Ex.C34: Advance receipt dated 18.01.2013

Ex.C35: Cumulative Split up bill dated 01.02.2013.

Ex.C36: Clinical Pathology Test Report dated 06.11.2012.

Ex.C37: Serology Test report dated 06.11.2012.

Ex.C38: Biochemistry Test report dated 06.11.2012.

Ex.C39: Cash Bill dated 18.01.2013

Ex.C40: Credit Bill dated 18.01.2013

Ex.C41: Cash Bill dated 09.02.2013

Ex.C42: Cash Bill dated 22.01.2013

Ex.C43: Cash Bill dated 18.01.2013

Ex.C44: Cash Bill dated 01.01.2013

Ex.C45: Cash Bill dated 28.01.2013

Ex.C46: Cash Bill dated 28.01.2013

Ex.C47: Discharge Bill dated 29.01.2013

Ex.C48: Discharge summary of Yenepoya Speciality Hospital dated 05.12.2012

Ex.C49: Plasma Report dated 19.01.2013, 20.01.2013

           Tip Culture Report dated 20.01.2013

           Serum Report dated 21.01.2013

           Albumin Report dated 21.01.2013

           ET TIP Report dated 22.01.2013

            Urea and creatinine Report dated 22.01.2013

             Serum Report dated 23.01.2013

             Serum Report dated 24.01.2013

             Plasma data Report dated 24.01.2013

             Urine Report dated 24.01.2013

             Body fluid Report dated 24.01.2013

             Serum Report dated 24.01.2013

             Serum Report dated 24.01.2013

              Plasma Citrate Report dated 25.01.2013

             Serum Report dated 25.01.2013

             Body fluid Report dated 26.01.2013

              Body fluid Report dated 26.01.2013

              Serum Report dated 27.01.2013

               Plasma Report dated 27.01.2013

               Plasma data Report dated 28.01.2013

               Serum Report dated 28.01.2013

               Plasma data Report dated 28.01.2013

  Ex.C50: Ultra Sound Report dated 20.01.2013, 25.01.2013

 Ex.C51: Thyroid Function Test Report dated 16.01.2013

 Ex.C52: Bio chemistry Test Report dated 24.01.2013

 Ex.C53 & C54: Duplex Doppler Study Report dated 16.01.2013

 Ex.C55: Plasma Citrate Report dated 16.01.2013

                Plasma Fluoride Report dated 16.01.2013

                Globulin Report dated 16.01.2013

               Urine Report dated 16.01.2013

 Ex.C56:  Advance receipt dated 28.01.2013, 18.01.2013

Ex.C57: Summary bill for Rs. 3,23,900/ & cumulative split up bill.

Ex.C58: Reply dated 13.04.2013

Ex.C59: Riposte dated 22.05.2013

Ex.C60:14 Chest X- Ray

Ex.C61: CZ

Witnesses examined on behalf of the Opposite Parties:

RW1  Dr. R L Kamath, Cardiologist,

RW2  Dr. P S Bhat, Cardiologist

RW3 Dr. Harish R Nair, Cardiac Surgeon at O P No.4 Hospital

Documents marked on behalf of the Opposite Parties:

Ex.R1: Original case sheet pertaining to the patient Bhavani

Ex.R2: Consent Form

Dated: 12.05.2017                                     PRESIDENT