Appeared at the time of arguments through video conferencing

Pronounced on: 23^rd November  2021

ORDER

PER DR. S. M. KANTIKAR, MEMBER

1.       The instant Appeal has been filed by the Appellants — Complainants against the Order passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in Complaint Case No. 71/2006, wherein the Consumer Complaint was dismissed.

2.       The brief facts of the case are that Mr. Harish Arya (hereinafter referred to as the “patient”) a wholesale pharmaceutical businessman, on 20.05.2004 at about 5:30am experienced slight chest discomfort. His brother, Dr. Ashok Arya checked him, the Blood Pressure (BP) was 140/90 mm of Hg and called his friend Dr. Chug to bring ECG machine, who immediately came at 6.05 to the residence and ECG was conducted. Dr. Chug telephoned the Cardiologist, Dr. Sanjeev Sharma (hereinafter referred to as the “Opposite Party No. 2) who  advised to take the  patient  Batra Hospital & Medical Research Centre (hereinafter referred to as “Batra Hospital – the Opposite Party No. 1”) and he will reach in short time. Accordingly, the patient’s brother Dr. Ashok Arya admitted the patient to Batra Hospital at 6:30 am. Another ECG was conducted by the on duty resident doctor at 6.40 am and informed about the stable condition of patient and administered few medicines. It was alleged that the Opposite Party No. 2, without examining the patient and reports, telephonically informed the resident doctor to shift the patient to Cath Lab-A for Angiography. Accordingly, the patient got shifted to Cath Lab. A., though  Opposite Party No. 2 did not reach the hospital. It was further alleged that Dr. R. D. Yadave (hereinafter referred to as the “Opposite Party No. 3”) without examining the patient or ECG; started the Coronary Angiography (CAG) procedure. It was solely based on the telephonic discussion with the Opposite Party No. 2.  

3.       It was alleged that the patient’s brother Dr. Ashok Arya was not given any prior information to about the decision to perform Angioplasty. At 7:20 am, the Opposite Party No. 2 arrived in the hospital, compared the two ECGs and joined the Opposite Party No. 3 in the Cath Lab-A. The Opposite Party No. 3 had already performed Angiography and he was about to start Angioplasty procedure. The   Opposite Parties Nos. 2 & 3 informed the patient’s brother  that the only branch of Left coronary artery- Left Anterior Descending (LAD) was 100% blocked and needs one Stent. However, later on, it was told that Angioplasty was also conducted on the Right Coronary Artery (RCA) and one Stent was put  in RCA at the Posterior Descending Artery (PDA) bifurcation and carried out Ballooning of Right Ventral branch.  At about 9.20 am, the Opposite Parties Nos. 2 & 3 declared that procedure was successful and the patient was shifted to Recovery Room. However, at about 10.20 a.m., the patient was again taken to Cath Lab B for Angiography and Complainants were told to arrange for blood. It was alleged that though there was no problem with the RCA but the doctors performed Angioplasty of RCA and a Stent was put in its PDA branch which led to complete cut-off of the blood supply to the RV branch and death of the patient.  At 1.00 pm, the Opposite Party No. 3 informed the patient’s brother Dr. Ashok Arya that the patient could not be saved despite proper Angioplasty. 

4.       The Complainants further alleged that the Hospital delayed to hand over the dead body of the patient. It raised exorbitant bill of Rs. 5 lakh which was settled for Rs. 3,17,566/-. It was further alleged that though the Opposite Parties Nos. 2 and 3 had claimed to put 5 stents, but the bill was raised for 4 stents. The Opposite Parties were requested to handover entire medical record including the CDs and death summary of the patient but there was no avail. The Opposite Parties might have been destroyed the CDs. 

5.       Being aggrieved by the death of patient due to the deficiency and negligence during treatment , the patient’s wife and two minors have  filed  the Complaint before the State Commission, Delhi and claimed compensation from the Opposite Parties for an amount of Rs. 94,18,566/- .

6.       The Opposite Parties denied negligence on their part and submitted that Complainants’ all allegations are frivolous baseless and vexatious. The patient was treated as per the standard of practice. It was submitted that on 20.05.2004 the patient’s own brother Dr. Ashok Arya (MBBS) brought the patient to the hospital at about 6.30 a.m. and informed that the patient was suffering from chest pain, uneasiness for the past four days.  At the residence one ECG stated to have been done by Dr. Dalip Chug and   patient was admitted in the hospital. The resident Doctor immediately took another ECG and diagnosed to be "Acute extensive Anterior Wall Myocardial Infarction" (Massive heart Attack). It was also evident in first ECG done in morning at residence by Dr. Chug. It was further submitted that Dr Sanjeev Sharma-the Opposite Party No. 2 staying away from the hospital at Greater Kailash, therefore, he informed Dr. R. D. Yadave, the Opposite Party No. 3, who was staying in the Hospital campus to reach Cardiac Emergency immediately. Based on the condition of patient, to avoid delay Dr. Yadave started the CAG procedure in Cath Lab A and in the meantime the Opposite Party No. 2 also reached the Cath Lab A . The CAG showed 100% blockage in the proximal LAD and also critical blockage of the RCA showing dominant proximal plaguing, 30-40% in mid segment 80-90% stenosis at bifurcation of PDA. Accordingly informing the patient’s brother Dr. Arya  that the stents were put .

7.       It was further submitted that the patient was stabilized and shifted to Intensive Cardiac Care Unit. After about half an hour of shifting; the patient showed fall of BP  to 80 mm Hg (hypotension). There was no improvement despite of Inotropic support and transfusion of IV fluids. Therefore, the patient was again taken to Cath Lab B for "Check Angiography". The Angiography   showed patent LAD and RCA stent. There was presence of thrombus in the proximal and mid portion of the RCA with presence of ulcerated plaque. Thereafter, the patient while shifting to Cardiac Care Unit suffered cardiac arrest. Immediately CPR was started, in spite of all the best efforts, the patient could not be revived and ultimately expired at about 1.45 p.m. on the same day.

8.       The State Commission after hearing the parties and based on the evidence and opinions of two experts  held that there was no negligence on the part of the Opposite Parties Nos. 2 & 3 during the treatment of the patient. However, the State Commission observed negligence on the part of patient’s brother Dr. Ashok Arya, who failed to detect the symptoms of heart attack at the first instance and do ECG.

9.       Being aggrieved by the dismissal of the complainant, the Complainants filed the instant Appeal. During the proceedings, the Complainant filed an I.A. No. 17115 of 2017 on 31.10.2017 for enhancement of compensation from Rs. 94,18,566/- to Rs. 7,57,91,004/- under various grounds.

10.     We have heard the learned Counsel for both the sides and perused the material on Record. Both the sides in their support have filed medical literature on the subject and few judgments this Commission and the Hon’ble Supreme Court on medical negligence.

11.     The learned Counsel for the Complainant vehemently argued and reiterated the facts and evidence adduced before the State Commission. He further argued that the Opposite Party No. 2 was not in the hospital at the time of admission of the patient and the Opposite Party No. 3 without examining the patient started Angiography. The doctors made false entries in the case sheet .The learned Counsel brought our attention to the guidelines of the American College of Cardiology/American Heart Association (ACC/AHA) which recommend that only the culprit artery (LAD) be stented and prohibits the stenting of any non-culprit artery i.e PDA. Thus the Opposite Parties Nos. 2 & 3 violated the ACC/AHA guidelines and inserted stents in the RCA. The hospital did not give the CD of Angiography done in Cath Lab-B. Even despite the direction of Metropolitan Magistrate and the State Commission the Opposite Parties have not suppled complete medical record to the respective expert boards. The learned Counsel further submitted that the State Commission  misinterpreted/ misread the  opinion of the Medical  Board  that because of culprit LAD artery the patient suffered heart attack and thus the primary Angioplasty was one of the accepted treatment.

12.     The learned Counsel for the Opposite Parties argued that the Opposite Party No. 1 hospital is multi-specialty hospital having qualified consultants and provides specialized diagnostic and surgical care in various disciplines. The Counsel further submitted that at the time of admission to the Opposite Party Hospital; the patient showed signs of massive heart attack i.e. acute anterior wall myocardial infarction (AMI). After examination and relevant investigations there was need for Angiography and further Angioplasty, if necessary. The procedure was informed explained to the patient’s brother Dr. Arya. The Angioplasty of LAD artery with implantation of 3 mm x 33 mm Cypher stent was done.  However, even after optimizing with the supportive therapy the patient's hemodynamic condition did not improve; therefore the Opposite Parties Nos. 2 and 3 consulted themselves and with Dr. Arya, who was present in the console room. Accordingly they took a conscious decision to perform Angioplasty of PDA which supplies inferior surface of left ventricle. It was done successfully by deploying 3 mm X 15 mm vision stent.

13.     The patient was stabilized and shifted to Intensive Cardiac Care Unit. After about half an hour of shifting the patient had chest pain with ST elevation in ECG. There was hypotension - BP 80 mm Hg which did not improve in spite of giving IV fluids and other supportive treatment (Inotropes) and the patient was again taken to Cath Lab for "check angiography" to check the status of coronary arteries. The Angiography performed showed patent LAD and RCA stent. There was presence of thrombus in the proximal and mid portion of the RCA where there was presence of ulcerated plaque. In view of hypotension Intra-Aortic Balloon Pump (lABP) for Hemodynamic support (for increasing the BP) was put and it was followed by intracoronary injection of Reopro (anti-thrombotic agent) with stenting of proximal and mid segment with 3.5 mm x 15 mm vision stent and 3.5 mm x 38 mm Zeta stent. There was good TIMI-III flow, stabilized ST segment elevation seen on monitor and BP of the patient was increased to 100 mm Hg systolic. Thereafter, while shifting to CCU, the patient suffered cardiac arrest; in spite of CPR and best treatment patient could not revive.    

14.     The learned Counsel further submitted that the treating doctors   followed the recommendation of AHA/ ACC that if the patient with extensive heart attack reaches the hospital having Coronary Angioplasty facility; the treatment of choice would be primary Coronary Angioplasty for release the blocked artery and restoring blood flow to the damaged heart muscle.  Despite the best treatment the patient could not survive. In the instant case the   patient’s brother Dr. Ashok Arya himself failed to diagnose and/or treat his brother at the early stage. He got an FIR registered  with false and fabricated facts before police. The Complainants did not disclose about the the opinion of Medical Board which was constituted with the direction of Patiala House Court in the Criminal Complaint filed by Dr. Ashok Arya. 

15.     The Counsel brought our attention to the opinion of Medical Board of G.B. Pant Hospital dated 12.02.2005; wherein it was opined that there was no medical negligence in the treatment. Based on the opinion, the police filed cancellation report under Section 173 Cr.P.C. stating that no case is made out and Criminal Complaint filed by Dr. Ashok Arya before Metropolitan Magistrate at Saket Court was dismissed vide order dated 24.09.2018.

16.     We have given our thoughtful consideration to the arguments from both the sides, perused the medical literature, AHA/ACC guidelines, the medical record and the expert opinions on file.

17.     We note that in the instant case two medical expert opinions were sought. One from G.B. Pant Hospital, on the direction of the Metropolitan Magistrate in the Criminal Complaint under Section 304 A/201 IPC and second report from Maulana Azad Medical College (MAMC) on the direction of the State Commission. Both the opinions stated that there was no medical negligence as alleged by the Complainants. The opinions are reproduced as below:

1. 12.02.2005  by   GB Pant Hospital, New Delhi,   

“Members of the designated Medical Board have carefully gone, through and deliberated the records provided in the aforementioned case. The Medical Board is of the opinion that there has been no apparent medical negligence in the treatment of Late Sh. Harish Arya s/o Late Sh. Lachman Das carried out at Batra Hospital. New Delhi."

2. 27.05.2013 by Maulana Azad Medical College, New Delhi

"The attached ECG of patient at time of admission on 6.40 a.m. 20.5.04 shows ST-elevation Myocardial infarction (STEMI) in anterior wail of LV, which is usually ascribed to LAD territory. With a history of acute chest pain and the above mentioned EGG changes, an emergency coronary angiography is justified. Furthermore, if LAD artery is 100% occluded (as cues in this case) confirming the above scenario of STEMI, a primary, angioplasty of the culprit artery is one of the accepted modality of acute treatment of heart attack, with due consent."

18.     Further, we reject the Complainant’s bald allegation that the Opposite Parties did not provide entire Medical Record with two CDs.   It is pertinent to note that the Hard Disc’s memory capacity was 36000 images, same was exhausted. To verify the computer memory the Metropolitan Magistrate referred it to CFSL and from another independent expert, who confirmed that hard disc had storage capacity of 36000 images and afterwards the images get automatically deleted. Moreover, about the receipt of CDs   the finding of the Delhi State Commission is more relevant, it is reproduced as below:

"that paper no. 54 is a letter dated 18.09.2004 of the Cath Lab Technician of the Opposite Party No. 1 Batra Hospital, which specifically mentioned that two CDs of treatment of Shri Harish Arya was handed over to Dr. Ashok Arya (real brother of the deceased after seeing the receipt of Rs. 1000/- and tick mark in the register was made), the CPs has also produced copy of the said register which shows that on 20.5.2004, the CDs were received which bears the signature of Dr. Ashok Arya".

19.     Thus, from both the opinions supra, manifestly it is evident that ECG showed clear signs STEMI. Therefore the Complainants’ allegations about normal ECG and no heart attack are not sustainable. The patient’s brother received the medcial record along with CDs.  In our considered view there was no negligence on the part of both Dr. Sanjeev Sharma and Dr. R.D. Yadave, who performed procedures (angiography and Angioplasty)per standards laid down in the American Heart Association and American College of Cardiology.    

20.     We have gathered information from the medical text books on Cardiology and few literatures. It revealed  a massive heart attack affects a large portion of the heart muscle, or causes a large amount of heart damage. This can happen if the blockage in a coronary artery occurs in a large artery that supplies a large portion of the heart; completely blocks blood flow to the heart; or lasts for a long period of time. It can result in collapse, cardiac arrest and permanent heart damage/rapid death. The leading cause of sudden cardiac death is myocardial ischemia. As for uncomplicated acute myocardial infarction (AMI), international guidelines plead for early coronary angiography with, in case of culprit lesion, angioplasty and stent implantation. However after cardiac arrest (CA), shock, hypothermia and changes in antiplatelet pharmacokinetic may promote stent thrombosis (ST).

21.     Although angioplasty is a less invasive way to open clogged arteries than bypass surgery is, the procedure still carries some risks. The most common angioplasty risks include re-narrowing of artery, blood clots formation within stents, bleeding where the Cather was inserted and bleeding. Few other risks involved are heart attack during the procedure; coronary artery may be torn or ruptured during the procedure; kidney problems and stroke etc.

22.     It should be borne in mind that some doctors may have concerns about being sued if they don't intervene aggressively. They may also be swayed by people's expectations of a dramatic response to a heart attack.  We would like to quote the observation in Jacob Mathew’s case (2005) 6 SSC 1, wherein the Hon’ble Supreme Court observed that higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. The Court further observed that:

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 believes 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 one 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.

23.     In another case, Achutrao Haribhau Khodwa Vs State of Maharashtra (1996) 2 SCC 634  Hon’ble Supreme Court held that:

“in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It was a case where a mop was left inside the lady patient's abdomen during an operation. Peritonitis developed which led to a second surgery being performed on her, but she could not survive. Liability for negligence was fastened on the surgeon because no valid explanation was forthcoming for the mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable 'in a case like this”.

24.     In our considered view, the patient’s ECGs clearly showed myocardial infarction (MI). The treating two Cardiologists have chosen the course of treatment as per ACC / AHA guidelines and performed Angiography and Angioplasty procedures. There was no deviation from the standard of practice. The two expert medical board’s opinions do not support the case of Complainants.  The death of the patient was due to cardiac arrest despite CPR.

25.     Based on the foregoing discussion, the Complainant failed to prove medical negligence against the Opposite Parties. The Complaint is dismissed.

However, there shall be no order as to costs.