Date of Filing: 27.11.2015
Date of Judgment: 23.05.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the Complainant Smt. Nita Singh under section 12 of the Consumer Protection Act, 1986 against the Opposite parties ( referred as O.P.s hereinafter) namely ( 1) Behala Balananda Brahmchari Hospital & Research Centre, (2) Supernatant of Behala Balananda Brahmchari Hospital & Research Centre , (3) Dr. Sashi Kumar and (4) Dr. Dilip Dhar alleging deficiency in service on their part.
Case of the Complainant in short is that on 25.05.2013, sister of the Complainant namely Sunita Jaswal felt pain in her abdomen. So she was taken to O.P no. 1 Hospital where she was admitted under the supervision of O.P no. 3. The Complainant and her family members were told by the doctor (O.P no 3) that pain was due to appendicitis and he advised operation. He informed that there were two types of operation i.e. open surgery and another is micro-surgery. On the advice of the doctor that micro-surgery was better; Complainant and her family members agreed to go for micro-surgery. Blood testings and other examinations were done and on seeing the reports, O.P. no. 3 fixed the date of operation on 27.05.2013. On 27.05.2013 when the patient was taken to the Operation Theatre, after 2/3 hours, the Complainant and her family members standing outside the O.T. saw the O.P. no. 2 & 3 running here and there. On being asked by the Complainant and her relatives, The O.P. no. 2 & 3 told that the condition of the patient was very poor and urgently needed ventilation. Without their consent and knowledge, patient Sunita Jaswal was transferred at I.C.U. under ventilation in the said hospital. In spite of the Complainant and her relatives saying that if needed they could transfer the patient to another hospital as the ventilation or I.C.U. of the O.P. No. 1 was not proper, the O.P.s assured that there were sufficient instruments. But in the early morning on 28.05.2013 the O.P. no. 2 told the patient party that there were no sufficient ventilators and the patient condition had been deteriorated, so they arranged for transfer at C.M.R.I. The patient was thereafter taken by the O.P.s in the ambulance at C.M.R.I. and admitted her there in the absence of the Complainant and her relatives. When the Complainant asked the condition of the patient from Dr. Asish Chakraborty at C.M.R.I., he told that at the time of operation, patient was fully unconscious due to brain haemorrhage and the patient was kept at C.M.R.I. in I.C.U. under ventilation. Thereafter on being asked from the O.P. no. 2 about the reason, he admitted that the same had happened due to negligence and latches on the part of the O.P. no. 3 & 4 and also told that they had already suspended the O.P. no. 4 Dr. Dilip Dhar , but the O.P. no. 2 did not supply any paper of suspension. The patient remained admitted at C.M.R.I. from 28.05.2013 to till 09.06.2013 and due to financial problems; the patient was then admitted at D.M. Hosptal at Thakurpukur at 12:42 P.M. The patient died there on 14.06.2013 at 01:20 a.m. The Complainant and her relatives spent more than Rs. 6, 50,000/- towards treatment. The deceased has a son aged 16 years old at the time of the death of his mother. His father also had died on 15.06.2006. Sunita Jaswal, the deceased died due to the wilful negligence of the O.P.s and thus the present complaint is filed praying for directing the O.P.s to pay Rs. 15,00,000/- as compensation, Rs. 2,00,000/- for harassment and Rs. 1,00,000/- as litigation cost.
The Complainant has filed complaint along with the money receipts showing payments in the O.P. no. 1 hospital, sonogram report of the whole Abdomen and other pathological tests reports, test reports of C.M.R.I., discharge summary, death certificate of the deceased Sunita Jaswal, cash memos showing purchase of medicines, hospital bills and the death certificate of the husband of the deceased Sunita Jaswal.
The O.P. no. 1 & 2 have contested the case by filing written - version contending inter-alia that the Complainant has no locus standi to file this case as the Complainant is not the legal heir of the deceased. Without the evidence of medical experts of specialized field, it would not be feasible to adjudicate and decide the matter. It is the specific case of the O.P. no. 1 & 2 that as agreed by the patient party on 27.05.2013, the operation on laparoscopic appendicectomy was uneventful. The operation lasted for 90 minutes and after completion of the uneventful surgery, the O.P. no. 3 asked the O.P. no. 4 to win back the patient from Anaesthesia, however post operative recovery from Anaesthesia was not satisfactory. So the patient was transferred to CCU with ventilator after informing the patient party and they agreed at around 4:20 p.m. Relatives of the patient wanted to take the patient to a higher medical centre of their choice which was allowed by the O.P in the best possible interest of the patient on 28.05.2013 at about 9:45 a.m. As per medical science, complication can arise from surgery and or general Anaesthesia. So O.P no 1 & 2 have prayed for dismissal of the case.
O.P no 3 has contested the case by filing a separate written-version denying all the allegations levelled in the complaint. O.P no 3 has also agitated all the points as stated by the O.P no 1 & 2 in their written-version that no medical experts opinion is filed. It is contended by him that he had counselled the patient regarding surgery, general anaesthesia and its complications during and /or in the post operative period. The patient and her relatives agreed to laparoscopic appendicectomy and as such surgery was done on 27.05.2013 which lasted for 90 minutes. However post operative recovery from Anaesthesia was not satisfactory. Such anaesthetic complication is known complications. The O.P. no. 3 has thus prayed for dismissal of the complaint.
The O.P. no. 4 has also contested the case by filing written-version raising all the points raised by the O.P. no. 1 , 2 & 3 in their written- versions. It is further contended by him that on 27.05.2013 at 1 P.M., he was requested to be anaesthetist for the surgery of Sunita Jaswal who was admitted through emergency in O.P. no. 1 hospital. On clinical examination and reviewing of test reports, he found her to be fit for surgery. The patient and her relatives were explained that the operation would be done under general anaesthesia and its complications. He began the procedure by injecting Medicine injection Tramazee at 50 mg I/V dose. The operation was uneventful. However post operative recovery from anaesthesia was not so satisfactory because the patient was responding to the command of showing the tongue but the patient was not opening the eyes. So he advised transfer of the patient to the C.C.U. for better management according to protocol. The O.P. no. 4 has then repeated the same facts as stated by the other O.P.s in their written-versions and thus has prayed for dismissal of the complaint.
During the course of trial, the Complainant filed an affidavit-in-chief which was followed by filing of questionnaire by the O.P.s but the Complainant did not file reply in spite of opportunities given and so O.P.s file their evidence followed by filing of questionnaire by the complainant but no reply was filed by the O.P.s , thus the case was fixed for hearing of argument ultimately. Arguments of both the parties have been heard and both parties have also filed brief notes of arguments.
During the hearing of arguments, Ld. Advocate appearing for the O.P.s has referred to a decision of the Hon’ble Apex Court in case of Dr. Harish Kumar Khurana vs. Joginder Singh in support of his argument that death due to anaesthesia does not make the doctors liable for negligence.
He has also filed Wikipedia on Anaesthesia and its complications.
Another decision of Hon’ble NCDRC in case of Dr. K. Patra vs. Ghanshyam Das & Anr is also filed by the O.P.s in support of their contention that the Complainant has no locus standi to file the complaint.
So the following points require determination:
- Whether the complaint is maintainable in law?
- Whether there has been deficiency in service on the part of the Opposite Parties?
- Whether the Complainant is entitled to the reliefs as prayed?
Decision with reason
Point no. 1
The Opposite Parties had challenged the maintainability of the complaint on the ground that the Complainant who is the sister of the deceased has no locus standi to file this complaint. Vide order dated 14.03.2016 passed by this Commission,said contention of the Opposite Parties was rejected with a finding that the complaint was maintainable. The said order was also affirmed by the hon’ble State Commission vide its order dated 12.06.2017 in RP/58/2016 filed by the O.P. No. 1the hospital. Against the said order passed by the hon’ble State Commission, the O.P. no.1 moved before the hon’ble NCDRC but subsequently the said Revision Petition being no. 3162 of 2017 was withdrawn by the O.P. no.1 the hospital. Hon’ble National Commission vide order dated 06.05.2019 allowed the withdrawal of Revision Petition and dismissed the Revision Petition as withdrawn subject to payment of reduced cost of Rs. 25000/- to the Complainant by the O.P. no.1. Thus the order passed by this Commission on 14.03.2016 that the complaint is maintainable, has reached its finality.
This point is thus answered accordingly.
Point no. 2 &3
Both these points are taken up together for a comprehensive discussion in order to avoid repetition.
In this case there are certain admitted facts which would be appropriate to highlight at first.
Firstly on 25.05.2013 Sunita Jaswal ( deceased) had abdomen pain, so she was taken to the O.P. no. 1 the hospital where O.P. no. 3 the doctor on examination informed the patient and patient party that the pain was due to appendicitis and advised surgery. The patient and patient party agreed to go for laparoscopic surgery after hearing about the same from the doctor O.P. no. 3.
Secondly the blood examination and other tests including ultrasound were done and it was found by the doctor the O.P. no. 3 that the patient was fit to undergo surgery. Thereafter the date of surgery was fixed on 27.05.2013 and the laparoscopic surgery was done by the O.P. no. 3 in the O.P. no.1 the hospital.
Thirdly the O.P. no. 4 was the anaesthetist. The surgery lasted for 90 minutes as stated by the O.P. no. 3 and 4 in the written version but after the completion of surgery, Dr. Dhar the O.P. no. 4 could not bring back the patient to recovery from anaesthesia. The patient was taken to C.C.U. with ventilation but the recovery from anaesthesia could not be done and thereafter she was shifted to the C.M.R.I. which according to the Complainant, was done by the O.P. no. 1 the hospital in the absence of the patient party whereas according to the O.P.s, the patient party wanted to take the patient to a higher hospital and they arranged for transfer.
The Complainant has claimed that at the C.M.R.I. the treating doctor namely Ashish Chakraborthy informed them that at the time of operation the patient was fully unconscious due to brain haemorrhage, so the Complainant and her relatives when asked the O.P. no.2 why that happened, they were told that the same happened due to latches & negligence on the part of the O.P. no. 3 & 4 and also told that they had already suspended O.P. No. 4 but no papers were provided to the patient party relating to the suspension.
The patient remained admitted at I.C.U. in the C.M.R.I. from 28.05.2013 to 09.06.2013 but due to financial crisis the patient party had to admit her at D.M hospital at Thakurpukur where she died on 14.06.2013 at about 1:20 a.m.
So it is apparent that the patient could not be brought back to recovery from anaesthesia and could not be revived for which she remained at I.C.U. in ventilation till she died. Towards the explanation Opposite Parties have mainly argued that the anaesthetic complication is known to Medical science and is well documented . The Opposite Parties have filed the Wikipedia on the said medical literature and the Ld. Advocates for the O.P.s has pointed out to the risks and complications relating to anaesthesia. But before dealing with the said point about risks and complications of anaesthesia and how anaesthesia contributes to mortality as agitated by the Ld. Advocate for the O.P.s, it has to be considered whether in the given facts and situation of this case, medical expert opinion is necessary to determine the negligence & latches on the part of the O.P.s.
In case of V.Kishan Rao vs. Nikhil Super Speciality Hospital and another, it has been held by the Hon’ble Apex Court that “Expert evidence is not required in all cases of medical negligence. Expert’s evidence is necessary when fora comes to the conclusion that the case is complicated or such that it cannot be resolved without assistance of expert opinion. Fora cannot follow mechanically or strait jacket approach. Each case is to be judged on its own facts”.
It may be pertinent to mention here that in case of V. Kishan Rao ( supra) , the Hon’ble Apex court has also considered and discussed the case of Martin F.D. Souza vs. Mohd. Ishfaq.
So keeping in view the legal proposition in case of V. Kishan Rao (supra), the evidence in the case in hand has to be analysed.
At the very outset, it may be pointed out that as per report of U.S. National Institute of diabetes and digestive and kidney diseases, appendicitis is the most common cause of acute abdominal pain requiring surgery. Over 5% of population therein develops appendicitis at some point. A normal appendectomy takes about one hour. However a ruptured appendix is considered highly serious.
In this case, the patient was admitted on 25.05.2013 and surgery was done on 27.05.2013. It was a normal appendectomy. It is also stated in the medical journal that in laparoscopy, in most of the cases the patients leave the hospital on the same day after 4/5 hours and there are rare cases where the patients need to stay in hospital overnight after this procedure. So apparently it was a simple normal surgery (Laparoscopic).
It is also evident from the own case as stated in the written version filed by the O.P.s especially the O.P. no. 3 & O.P. no. 4 that all the necessary tests were done before the operation and they found that the patient Sunita Jaswal was fit to undergo surgery. There is absolutely no material before this Commission which would remotely suggest any inherent health problem with the patient either pre-operation or during the process of surgery. So if any complication developed while giving anaesthesia or during the course of operation, or any complication after the operation, the onus exclusively lies on the Opposite Parties especially the O.P. no. 3 & 4 as they have the specific knowledge as to how the patient was dealt during the surgery. But surprisingly there is complete silence on the part of the O.P.s. The Opposite Parties have not filed a single medical paper relating to the operation of the patient that there were no latches. Merely filing Wikipedia on medical literature highlighting risks & complications stated therein cannot be the reason to assume that the same might have happened. It is for the O.P. no. 3 & 4 who are doctors operating and anaesthetist respectively to point out why the patient could not be revived after surgery or why she could not be recovered post operative from anaesthesia.
No discharge summary of the O.P. no. 1 the hospital is forthcoming before this Commission. However it is admitted fact as already highlighted above that the patient was shifted to C.M.R.I. on 28.05.2013. According to the Complainant on 28.05.2013 the O.P. no. 2 told the patient party that there were no sufficient ventilations and the patient’s condition was deteriorating, so they arrange for transfer the said patient at the C.M.R.I. The O.P. no. 2 arranged the ambulance and the patient was taken at the C.M.R.I. in the absence of the Complainant and her relatives. However the O.P.s have denied the same and contended that it was the patient party who wanted to take the patient to a higher medical centre and so they allowed the transfer. Be that as it may, the discharge summary of the C.M.R.I. has been filed wherein it has been stated “the Patient was admitted on 28.05.2013 at I.C.U.-I in the C.M.R.I with complain of unconsciousness, restlessness, deep shallow breathing. The patient had history of appendectomy on 27.05.2013 at 3 p.m. in Behala Pvt. hospital and post operative recovery was not satisfactory. Because of the post – operative drowsiness and breathing difficulty the patient was put on ventilatory support.
After admission at I.CU-I in the C.M.R.I. the patient was put on ventilatory support and also seen by the Neurologist Medical Consultant and Anaesthetist and advice followed. In spite of all efforts there was no significant improvement of brain function”.
The Complainant has stated in the complaint that in the C.M.R.I. doctor Ashish Chakraborthy, the treating doctor informed them that at the time of operation at O.P. no. 1 the hospital the patient was fully unconscious due to brain haemorrhage. The Complainant has filed some medical articles and literatures on anaesthesia wherein it is specified that “Brain injuries are among the most severe injuries to result from anaesthesia malpractice. Mistakes that result in brain injuries include failing to monitor blood flow to the brain, aspiration and failure to monitor the patient during recovery. A person needs constant blood flow to their brain to oxygenate the brain and keep the cells alive. During surgery, the Anaesthesiologist is responsible for ensuring the patient’s brain continues to receive the Oxygen it needs. When blood flow is interrupted, like when too much anaesthetic is administered the cells can be starved of Oxygen. The Oxygen deprivation can quickly result to stroke, traumatic brain injury or death.
The traumatic brain injury can also occur if a patient aspirates. This is when a patient vomits during surgery and the contents of their stomach enter into their respiratory system. While the patients are supposed to receive medication to prevent this that does not always happen. If the Anaesthesiologist is not monitoring the patient properly and they aspirate, they can experience low Oxygen level that affects the brain.
Once a surgery is over, the patient must be brought out of anaesthesia safely. The Anaesthesiologist is responsible for monitoring the patient to ensure they wake up the way they are supposed to. If the doctor is not paying attention or fails to notice signs of distress, it is possible that the patient could sustain brain injury”.
It is already highlighted above that the O.P.s have not filed any documents relating to controlling and monitoring the condition of the patient during the time of operation. The O.P.s have to establish by filing the necessary documents relating to method of operation, the condition of blood pressure during operation, the sedatives/injections administered and their doses especially when administration of too much anaesthetic may cause starving of Oxygen in the cells which may quickly result to stroke or traumatic brain injury as referred to above in the medical literature.
Even in their affidavit-in-chief, the O.P.s have no where explained the reason why the patient could not be revived back from Anaesthesia.
Complete silence on the part of the O.P.s especially O.P. no. 3 & 4 as to what was the reason for which the patient could not be recovered back from Anaesthesia, gives reason to believe that there was latches on their part and standard and care required to be maintained was not maintained. It is already highlighted above why it happened is only within their specific knowledge and so the onus is upon the O.P.s to prove why the patient Sunita Jaswal could not be revived and why there was brain haemorrhage which ultimately resulted her death. In this case principle of res ipsa loquitur will apply.
In case of Dr. Harish Kumar Khurana vs Joginder Singh, relied upon by the O.P.s, fact & situation was totally different. In that case patient’s first operation of one kidney was uneventful and so it was observed that in the absence of any medical evidence brought on record to the contrary regarding the failure on the part of Anaesthetist Dr. Khurana in taking any steps while administering anaesthesia for the second operation, the observation of poor tolerance in the case sheet by itself could not be assumed negligence. In that case patient’s both the kidneys required to be operated and Anaesthetist was same who conducted operation. The patient had undergone the same process of being administered anaesthesia for the first operation and the entire process was uneventful and the first operation had been performed successfully.
In the case in hand a simple surgery turned out to be fatal for a patient who had no health problem as per own statements of the Opposite parties. Simple anaesthetic procedure turned out to be complicated which appears only because of lackadaisical attitude of the anaesthetist.
So in view of the discussions as highlighted above, the Complainant is entitled to compensation as prayed. Due to latches & negligence on the part of the O.P.s, a 16 years old boy who had already lost his father before, also lost his mother. If the Complainant was not there for him, he would have been orphaned. So taking into consideration the totality of the circumstances, we find that compensation of Rs. 10 lakh (Ten lakh) would be justified.
Hence
Ordered
CC/50/2015 is considered and allowed on contest. The Opposite parties are jointly and severally directed to pay Rs. 10, 00,000/- (Ten lakh) as compensation to the Complainant within 45 days from the date of this order, in default the sum shall carry interest @ 8% p.a. till realisation.
The Complainant on receipt of the sum shall deposit the same in the savings bank account or in the fixed deposit account of the son of the deceased who of course is now a major.
The Opposite parties are further directed to pay litigation cost of Rs. 15000/- within the aforesaid period of 45 (forty five) days.
