Haryana

StateCommission

CC/67/2013

Neetu Yadav - Complainant(s)

Versus

Artemis Hospital Institute - Opp.Party(s)

24 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No  :       67 of 2013

Date of Institution:  02.09.2013

Date of Decision :   24.02.2016

 

1. Neetu Yadav wife of late Dr. Tivender Yadav @ Jaivinder
2. Garima Yadav (minor) aged 4 years d/o late Dr. Tivender Yadav @ Jaivinder, through her mother Neetu Yadav
3. Nirlep Yadav mother of Dr. Tivender Yadav @ Jaivinder
4. Jai Parkash father of Late Dr. Tivender Yadav @ Jaivinder

All Residents of Village Kosli, District Rewari, Haryana.

                                      Complainants

Versus

1.      Artemis Hospital Institute through its Chairman Sector-51, Gurgaon, Haryana-122001.

2.      Omkar S. Kanwar, Chairman, Artemis Hospital Chairman, Sector-51, Gurgaon, Haryana-122001.

3.      Dr. R.K. Maini, Head ICU Team, Artemis Hospital now Director Pulmology & Critical Care & Sleep Medicine Saket City Hospital Mandir Marg Press enclave Road Saket, New Delhi.

4.      The New India Assurance Company Limited, S.C.O. No.104-106, Sector 34-A, Chandigarh.

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:                    Shri Harsh Aggarwal, Advocate of the Complainant.

Shri Raman Gaur, Advocate for the Opposite Parties No.1 & 2

Shri Manish Mehta, Advocate for the Opposite Party No.3

Shri Vinod Chaudhri, Advocate for the Opposite Party No.4

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

Neetu Yadav being widow, Garima Yadav and Nirlep Yadav- both minor children and Jai Parkash-father, have brought this complaint on account of death of Dr. Tivender Yadav @ Jaivinder, alleging medical negligence and deficiency in service on the part of the treating doctors/hospital-opposite parties No.1 to 3.

2.      On February 24^th, 2012 at about 10.00/11.00 P.M., Dr. Tivender Yadav-since deceased, alongwith a friend was going in car bearing registration No.HR-26 AK – 0289, from Kosli to Guriyani. Dr. Tivender Yadav, was driving the car. The said car was hit by another Indica Car bearing registration No.HR-26 BP-3617. Dr. Tivender Yadav suffered injuries and his friend died at the spot. The injured- Dr. Tivender Yadav, was taken to H-Way Hospital, Rewari. His condition being serious, was referred to Medanta Hospital, Gurgaon. On account of financial incapability and for better treatment, he was shifted to Artemis Hospital-Opposite Party No.1, on 25.02.2012. The complainants deposited the treatment charges as and when asked by hospital to deposit. The complainants were assured that the injured was improving fast, however contrary to their assurance, the injured died on 14.03.2012 due to negligence and deficiency in service on the part of the opposite parties No.1 to 3. The dead body was taken to Post Graduate Institute of Medical Sciences (PGIMS), Rohtak, for post-mortem examination, where after post-mortem examination, vide report Exhibit C-2, it was found that in the surgically created (tracheostomy), wound of size 1 cm x 1.2 cm was found. On dissection of the laryngotracheal structures, it was found that the whole trachea was full of pus and rolled up organized gauze piece was in the tracheal lumen, completely occluding the same and reaching up to the bifurcation. The tracheal mucosa was deeply congested. The gauze piece was smudged with pus. Video was photographed during the process of post-mortem examination. It was alleged that death was due to chocking because rolled up organized gauze piece was found in the trachea tube. Thus, the complainants sought compensation of Rs.63,76,500/- with costs and interest @ 12% per annum from the date of death till the date of its realization.

3.      The opposite parties contested the complaint. Opposite Parties No.1 and 2, in their reply stated that the injured was brought to the hospital with multiple injuries. As per history given after accident the injured remained lying at the spot un-attended for a considerable time and thereafter shifted to General Hospital, Rewari at 11.00 P.M. from where he was shifted to H-way Hospital, Rewari, on 25.02.2012 and thereafter referred for tertiary care treatment to Medicity, Gurgaon. Thereafter, for further management the injured was referred to Artemis Hospital-Opposite Parties No.1 and 2.  The patient had suffered head injuries, facial wounds, fracture right hip and fracture pelvis. The facial wounds were repaired by plastic surgeon and ORIF and nailing of fracture femur was done by Orthopedic Surgeon. Since patient was not improving his respiration and there being lot of secretions in the trachea-bronchial tree, the injured was subjected to Per-cutaneous Tracheostomy, as per standards protocol for inserting the airway tube. It was stated that best possible treatment was provided to the patient and general condition not showing any improvement, the patient succumbed to injuries on 14.03.2012. Any negligence on the part of doctors was denied. It was stated that no doctor can assure 100% cure nor any guarantee can be given for that.  It was denied that any gauze was used or required to be used in or around trachea during treatment. Therefore, there could be no scope of any gauze piece reaching upto bifurcation. It was further submitted that even the gauze pieces used in the operation theatre are marked with a radio-opaque line and no such line was detected in the X-ray or CT scan.  It was submitted that after death of a patient, the Ward Boy inserts gauzes in all openings including tracheostomy hole. The patient was stated to have been subjected to the following procedures in the hospital:

                   a.      CVP line insertion on Right Jugular vein

                   b.      Arterial line insertion on left Radial artery

c.       Open reduction & Internal Fixation & Nailing of Fracture Right Femur & Right Hip (28.2.12)

d.      Surgery for Facial fractures & soft tissue injuries (28.2.12)

e.      Per-cutaneous Tracheostomy (1.3.12)

f.       Bronchoscopy (1.3.12)

4.      In none of the above procedures, there is any scope of gauze entering into the trachea. Denying any medical negligence, dismissal of the complaint was prayed.

5.      Opposite Party No.3 – Dr. R.K. Maini, did not file separate reply and stated that the reply of opposite parties No.1 and 2 be taken into consideration.

6.      Opposite Party No.4 – New India Assurance Company Limited, in its reply denied the allegations of the complainants and prayed for dismissal of the complaint.

7.      Rejoinder was filed by the complainants reiterating the facts stated in the complaint and denying the version of the opposite parties. Besides adding that complainants had filed claim petition under the Motor Vehicle Act, which is pending before the Motor Accident Claims Tribunal, Rewari.

8.      Complainant Neetu Yadav, has appeared as CW-1 and examined Dr. Luv Sharma, Professor PGIMS, Rohtak CW-2, who had conducted the Post-mortem examination of the deceased. The complainants also produced documents in their evidence.

9.      On the other hand, Dr. R.K. Mani, was examined by the Opposite Parties as OPW1, besides placing on the record the clinical notes of the patient.

10.    Arguments were heard. File perused.

11.    What constitutes medical negligence, based on the touchstone of Bolam Vs. Friern Hospital Management Committee, (1957), 1 WLR, 582 (the Bolam’s test), is well settled by Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1; Indian Medical Association Vs. V.P. Shantha and Ors., (1995) 6 SCC 651 and Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors. (2010) 3 SCC 480.  In the judgments cited supra, broad principles to determine medical negligence are (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field. 

12.    So far as the medical negligence is concerned, the evidence of complainants is only of Dr. Luv Sharma, who conducted post-mortem examination. He has stated that on autopsy, following symptoms were found:-

“   (i)  There was ‘Y’ shape healed stitched wound situated on the right side of the forehead at the level of medial border of right supra orbital ridge.  On further dissection of the skull, the right temporal muscle was eccymosed.  On further dissection an extensive irregular fracture of the frontal bone, right temporal bone, bilateral naso-ethmoidal bone was present and supra orbital plate and left zygomatic arch was fractured.

Depressed communited fracture of right temporal bone with shattered bony fragments loosely attached to each other and a defect through which bloody brain tissue was visible.   There were several radiations of this fracture.

On further dissection, there was a large extra dural haematoma dark red in colour seen in the area of fracture of nasoethmoid bone.  On removal of the duramater there was a diffuse subarachanoid hemorrhage over both cerebral hemispheres.

(ii)      A healing wound just above the left supra orbital arch and lateral part.

(iii)     There was a bandage over the supra sternal notch, below which was tracheostomy wound.  There was a plug in the hole in the form a gauze-swab.  On dissection of the laryogotracheal structures, the whole trachea was full of pus and a rolled up organized gauze-swab piece was found to be in the tracheal lumen completely occluding the same and reaching upto the bifurcation. The tracheal mucosa was deeply congested.  The gauze piece was smudged with pus.

(iv)    Scabbed abrasion on the right side of root of nose.

(v)     The right eye ball was ruptured.

(vi)    A stitched wound over right gluteal and left lateral aspect of the thigh.

(vii)    A stitched wound on the right thigh.

(viii)   Multiple abrasions over and around the right knee joint.

(ix)    A stitched wound over the right knee.

(x)     Multiple abrasions over and around the left knee.

(xi)    A wound on the anterior aspect of left knee.

          In our opinion the cause of death in this case is choking by gauze (Swab) piece obstructing the tracheal lumen below the tracheostomy in this case of cranio-cerebral damage as a result of head injury and poly trauma described, consequent upon blunt force/surface impact.” 

On being cross-examined he has admitted that the bandage shown in the photographs Exhibit C-3 and C-4, has no marking pertaining to the deceased. He has admitted that there were multiple fractures over the skull. Extra Dural Haematoma inducted excessive collection of blood over brain, which was on account of multiple fracture of the skull. He has further admitted that there was another layer over the brain which had also collection of blood on both sides of brain on account of multiple fractures of the skull. He has also admitted that there was depressed communited fracture of right temporal bone with shattered with bony fragments which was dangerous in nature which could be cause of death. He has also admitted that tracheostomy tube is inserted inside the trachea through the supra sterna notch to assist the patient to breath. The tracheostomy was performed on 01.03.2012. At the time of post-mortem examination, trachea tube was not found in the body. It was admitted that in case of death of patient, trachea tube had to be taken out and there was plug in the shape of gauze (swab) piece in the tracheostomy stoma (hole), which is put in the tracheostomy stoma (hole) to prevent secretion from coming out of the body. This witness has admitted that tracheostomy was done on 01.03.2012. He has admitted this to be correct that Bronchoscopy cannot be conducted if there is a swab inside the trachea. He further admitted it as correct that in case there is gauze in trachea, the patient cannot survive for 14 days.  He also admits that after death, all openings should be occluded (plugged), including the tracheostomy stoma, which are done with gauze. He also admits that gauze cannot be put inside trachea without taking out the tracheostomy tube. Dr. Luv Sharma, also admitted in his cross-examination that depressed communited fracture of right temporal bone with shattered bony fragments was dangerous in nature and the same could be the cause of death. The relevant portion of the statement is reproduced as under:-

“It is correct that depressed communited fracture of right temporal bone with shattered with bony fragments was dangerous in nature which could be cause of death.”

13.    The admissions by CW-2- Dr. Luv Sharma, in the cross-examination, practically shatters his own observation given in the Post Mortem Report. This witness admits that the tracheostomy was conducted on 01.03.2012 and tracheostomy tube was inserted on 01.03.2012. The admission by the doctor that Bronchoscopy was also conducted and that Bronchoscopy cannot be conducted if there is a gauze piece inside the trachea, besides that in case there is gauze piece in the trachea, a person cannot survive for so many days rules out any negligence. Further admission of this witness that gauze piece and trachea tube, both, cannot be put simultaneously besides that the gauze cannot be put without taking out the tracheostomy tube and this being given in the report as cause of death, though in addition to mentioning the head injuries to be the cause of death, there is no scope of any gauze being inside the trachea during the period of treatment.

14.    In defence, Dr. R.K. Maini, (OPW-1) under whose supervision treatment was being done, has stated as under:-

“I was working in Artemis Hospital, Gurgaon as Director of Critical Care and Pulmonogy from 2009 to 2012.   I am qualified Medical Practitioner having degrees Doctor Medicine (MD) Member of Royal College of Physicians, England – U.K, Fellow of the College of Chest Physician (FCCP), U.S.A, President of the Indian Society Critical Care Medicine from 2006 to 2008.   I am Chief Editor of Indian Journal of Critical Care Medicine.   I am presently working as Chief Executive Officer and Chairman of Critical Care and Pulmonogy at Nayati Healthcare Private Limited, Gurgaon.

2.      Sh. Tivender Yadav was admitted in Artemis Hospital on 25.02.2012 at about 2.56 P.M.  The patient had sustained multiple injuries on 24.02.2012 in a road accident.  As per the case history, from the spot, he was taken to General Hospital, Rewari and from there, he was brought to Medanta Hospital, Gurgaon at 3 A.M on 25.02.2012.  The patient had multiple fractures in his head and face, that is, fracture of frontal bone, temporal bone Zygoma (cheek bone) and Nasoethmoid (between nasal bridge and eye).  All these injuries have been mentioned in the discharge certificate Exhibit OP-1. The skull was not opened.   The injuries were serious in nature and were considered irreversible and because of that, neurosurgical procedure was not adopted.

3.      Following procedures were done:-

(a)     Central Venus Pressure (CVP) Line on right Jugular Vein.

(b)     Arterial Line insertion on left Radial Artery.

(c)     Open reduction & Internal Fixation & Nailing of Fracture Right Femur & Right Hip (28.02.2012).

(d)     Surgery for facial fractures and soft tissue injuries (28.02.2012).

(e)     Per-cutaneous Tracheostomy (1.3.2012).

(f)      Bronchoscopy (1.3.2012).

4.      The aforesaid procedure was carried on by a team headed by me.    By adopting the aforesaid procedures question of gauze being inserted into the trachea does not arise. The gauze which was allegedly found in the postmortem report could have been placed after death as a matter of course in all the openings as per medical norms.   One of the procedures carried on was Per-cutaneous Tracheostomy as shown in procedure (e) above.   There was a small incision followed by insertion of a tracheostomy tube through which artificial ventilation is given. During this procedure, no gauze is used.  If a gauze is in the trachea, question of bronchoscopy being passed through it does not arise.  The patient died in the hospital on 14.03.2012, that is, after about 19 days of admission.  During hospitalization, the best possible medical treatment was given to the patient.  There was no medical negligence on the part of any medical officer including me and the hospital.  The attendants of the patient were fully satisfied of the treatment given by the hospital.” 

15.    In his cross-examination Dr. R.K. Maini (OPW1) has stated that “The extensive brain injury was sufficient to cause death of the patient. After the death of the patient, as per norms during preparation of the body, the nurses occlude all the openings with gauze. The observation shown by Dr. Luv Sharma in paragraph No2 (iii) could be the result of trachestomy opening being so occluded by gauze. The gauze must would have been stuffed into the opening left by the trachestomy. The bronchoscopy was performed by me. I daily used to visit the patient in the ICU.” It was further stated that “Secretions in the lower airways if present are removed by a suction catheter and no gauze piece is used for this purpose. As per the record, secretions were removed in an appropriate manner using suction catheter. In case tube is inserted by doing trachestomy (hole) question of stuffing the gauze into the trachestomy tube does not arise.” Looking from any angle there does not appear to be any negligence on the part of the Doctors/Opposite Parties No.1 to 3 in treating the injured (deceased).

16.    Having considered the pleadings of the parties and the evidence on record, the complainants have miserably failed to establish that the treating doctors/opposite parties No.1 to 3, were negligent in giving treatment to the patient.  The nature of injuries suffered by the patient as mentioned in the treatment record given by Dr. R.K. Mani, and stated by Dr. Luv Sharma-CW-2, who conducted post-mortem examination, Dr. Luv Sharma, admitting that head injuries could be cause of death, in the considered opinion of this Commission, the complainants have not been able to prove any negligence during the treatment on the part of doctors/opposite parties No.1 to 3.

17.    As a sequel to the aforesaid discussion, the complaint fails and is hereby dismissed.

 

Announced 24.02.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL