1.      Heard Anil Kumar Mishra, Advocate for the appellants and Mr. Nikhil Jain, Advocate for the respondents.

2.      Above appeal has been filed against the order of Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow, dated 02.01.2015 passed in CC/14/2014, dismissing the complaint. 

3.      Smt. Shashi Bala and Chandra Prakash filed CC/14/2004 with the State Commission for directing the opposite parties to (a) pay Rs.23/- lakhs with interest @ 18% p.a.; (b) pay litigation cost; and (c) any other relief deemed fit and proper by the Commission may kindly be granted.

4.      Smt. Shashi Bala, aged about 45 years (complainant-1) (the patient) was the wife of Chandra Prakash (complainant-2). The patient suffered from uterine bleeding and visited Dr. Mukesh Chandra (OP-1) at his clinic ‘Chandra Clinic’ on 28.03.2003, who after check-up prescribed some medicines. The patient against suffered from uterine bleeding 13.08.2003 and visited Dr. Mukesh Chandra (OP-1), who asked for X-ray chest, Trans-Vaginal Sonography (TVS) and other pathological tests. On examination of the test reports, Dr. Mukesh Chandra prescribed some medicines on 16.08.2003, suggested that though there was some problem but it could be cured through medication. The patient took the medicines regularly as prescribed by OP-1 but her condition deteriorated day by day. Dr. Mukesh Chandra admitted the patient in Dr. Sanker Nursing Home OP-2 for ‘Non-descent Vaginal Hysterectomy’ surgery on 01.09.2003 and conducted surgery on 02.09.2003 at 8:00 am. The patient regained little bit consciousness after 8 hours and complained of Nausea. The compounder gave anti emetic injection, intra venous instead of intra-muscular to the patient. Immediately thereafter, the patient showed ‘cardio respiratory collapse’. After ‘cardio respiratory collapse’, the patient was neither provided emergency treatment nor any emergency measures were taken by OP-1. OP-2 was not an emergency ready nursing home and no modern machine/instrument was available for cardio respiratory performance, which was not irreversible within 3 minutes in such case as per medical literature. Due to which, the brain death took place and this fact was concealed by Dr. Mukesh Chandra. He has also not taken care of ECG and CT scan tests to ascertain the brain death. On 03.09.2003, OPs-1 & 2 referred the patient to specialist neurological care of Dr. R.C. Mishra in Kamayani Hospital (OP-3), where the patient remained for some time but showed no improvement. Even for continuous treatment for six months, there was no improvement and now the patient is taking medicines at the home. Due to the negligence of the OPs, the patient suffered brain death. Complainant-2 was doing electric business on wholesale basis and somehow managed the medical expenses of his wife. During the treatment, he could not look after his business for many months and suffered a loss of Rs.5/- lacs and also incurred Rs.2/- lacs on the treatment but there was no improvement in the condition of his wife. As complainant-1 was still under treatment, he would have to spend at least Rs.2/- lacs more. Sundeep Anand, the son of the complainants could not continue his engineering course in spite of being a genius student due to illness of his mother. The complainants claimed Rs.10/- for loss of the career of their son. Father of complainant-2 sustained serious shock due to serious condition of his daughter in law and died on 19.12.2003 for which the complainants claimed Rs.2/- lacs. Complainant-2 has undergone mental trauma due to the medical condition of his wife for which an amount of Rs.2/- lacs has been claimed as compensation. Alleging medical negligence on the part of the opposite parties, the complainants filed above complaint.

5.      Opposite parties-1 & 2 filed their joint written reply stating that Dr. Mukesh Chandra was MBBS and MS (Obstetrics & Gynaecology) and Associate Professor in S.N. Medical College and Hospital, Agra. OP-1 was a renowned obstetrician and gynaecologist in Agra, having experience of 24 years. Dr. Sanker Nursing Home was the oldest and reputed nursing home of Agra, having qualified doctor and the nursing staff round the clock. After thorough check-up on 28.03.2003 OP-1 diagnosed the patient as a case of ‘dysfunctional uterine bleeding’ and prescribed certain medicines and asked her to revisit after one month but she failed to adhere to the advice. The patient visited again on 13.08.2003 i.e. after expiry of four and half months. She was advised for X-ray chest, TVS and other pre-operative investigations. The patient was diabetic and slightly enlarge heart, for which, Dr. Sanjay Tandon, a renowned physician of Agra was consulted. It has been denied that OP-1 had suggested that though there was some problem but it could be cured through medication.  After control of diabetes, she was admitted in Dr. Sankar Nursing Home (OP-2) on 01.09.2003 for ‘Non-descent Vaginal Hysterectomy’ surgery and Dr. Mukesh Chandra conducted surgery on 02.09.2003 at 8:00 am. The surgery was flawless and there was no post-operative complication. The patient was fully conscious. The patient complained of ‘nausea’ after 8 hours, a known effect of surgery. On the advice of Dr. Mukesh Chandra, the compounder gave anti emetic injection i.e. Emeset 4mg, which contains Odansetron 4 mg, which is most safe, standard and commonly used drug in post-operative nausea, to the patient in presence of a qualified doctor. Emeset injection caused Anaphylactic reactions, which is its adverse effect. Anaphylaxis cardio pulmonary arrest, hypersensitivity reactions, bronchospasm, cardiovascular effect and syncope are reported adverse drug reactions of Odansetron injection and OP-1 & 2 cannot be held responsible for it. Cardio respiratory collapse was diagnosed and immediately managed by OP-1 and 2 with the team of qualified doctors. Senior Anaesthetist Dr. V.S. Pachauri put the patient on intermittent positive pressure ventilation by Boyle’s machine. The pulse oxymeter showed adequate oxygen saturation in the body of the patient. Entire resuscitation was carried out in the presence of complainant-2 and other attendants including Dr. Saini, nephew of complainant-1 and the OPs did not conceal anything from the complainants. The heart lung machine is required for heart surgery and not for management of drug reaction. All relevant tests including ECG and CT scan were conducted in consultation with Neurology expert Dr. R.C. Mishra. Thereafter, the patient was shifted in the neurological ICU and referred to specialist neurological care of Dr. R.C. Mishra. OP-1 and 2 have no knowledge about the business of complainant-2 or study of his son. The complainants be put for strict proof of it. Exaggerated compensation has been claimed. OP-1 and 2 did not take operation and nursing home charges on humanitarian ground. The brain death of the patient occurred due to adverse effect of odansetron injection and there was no deficiency in service on the part of the opposite parties.

6.      Opposite party-3 filed its separate written reply stating that on 03.09.2003 the patient was referred to OP-3 hospital in a deep comma condition and she was admitted in neuro intensive care. She was given best treatment and all possible measures were taken. Later on, the relatives of the patient took her to Lucknow for further treatment and thereafter Dr. R.C. Mishra was never consulted by them. There was no deficiency in service on the part of OP-3.

7.      The State Commission, vide impugned order dated 02.01.2015 found that  as per OP-1 and 2, on advice of Dr. Mukesh Chandra, the compounder gave anti emetic injection i.e. Emeset 4mg, which contains Odansetron 4 mg, to the patient in presence of a qualified doctor. As per OPs it is most safe, standard and commonly used drug in post-operative nausea. Emeset injection caused Anaphylactic reactions, which was side effect of above injection and OP-1 & 2 cannot be held responsible for it. Cardio respiratory collapse was diagnosed and immediately managed by OP-1 and 2 with the team of qualified doctors. The patient was put on intermittent positive pressure ventilation by Boyle’s machine by Senior Anaesthetist Dr. V.S. Pachauri. The pulse oxymeter showed adequate oxygen saturation in the body of the patient. It was incumbent upon the complainants to prove by some expert evidence as to which emergency drugs had to be given to the patient at that time. As such medical negligence is not proved. On these findings, the complaint was dismissed. Hence this appeal has been filed.

8.      We have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Savita Garg v. Director, National Heart Institute, (2004) 8 SCC 56, held that once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities.

9.      In V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513, held as follows:-

“38. A careful reading of the aforesaid principles laid down by this Court in Indian Medical Assn. Vs. V.P. Santha, (1995) 6 SCC 651, makes the following position clear:

(a) There may be simple cases of medical negligence where expert evidence is not required.

(b) Those cases should be decided by the Fora under the said Act on the basis of the procedure which has been prescribed under the said Act.

(c) In complicated cases where expert evidence is required the parties have a right to go to the civil court.

(d) That right of the parties to go to civil court is preserved under Section 3 of the Act.

39. The decision in Indian Medical Assn. (1995) 6 SCC 651 has been further explained and reiterated in another three-Judge Bench decision in J.J. Merchant (Dr.) v. Shrinath Chaturvedi (2002) 6 SCC 635. The three-Judge Bench in J.J. Merchant (Dr.) (2002) 6 SCC 635 accepted the position that it has to be left to the discretion of Commission

“to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly.”

40. It is, therefore, clear that the larger Bench in J.J. Merchant (Dr.) (2002) 6 SCC 635 held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of the Commission. Therefore, the general direction given in para 106 in D'Souza [(2009) 3 SCC 1to have expert evidence in all cases of medical negligence is not consistent with the principle laid down by the larger Bench in para 19 in J.J. Merchant (Dr.) (2002) 6 SCC 635.”

10.    The complainants alleged that Dr. Mukesh Chandra OP-1 conducted ‘Non-descent Vaginal Hysterectomy’ surgery of the patient on 02.09.2003 at 8:00 a.m. in Dr. Sanker Nursing Home (OP-2). The patient regained little bit consciousness after 8 hours and complained of nausea. The compounder gave anti emetic injection, intra venous instead of intra-muscular to the patient. Immediately thereafter, the patient showed ‘cardio respiratory collapse’. After ‘cardio respiratory collapse’, the patient was neither provided emergency treatment nor any emergency measures were taken by OP-1. OP-2 was not equipped with modern machine/instrument for cardio respiratory performance, which was not irreversible within 3 minutes in such case as per medical literature. Due to which, the brain death of the patient took place.

          According to OP-1 and 2, the patient complained of ‘nausea’ after 8 hours, a known effect of surgery. On the advice of Dr. Mukesh Chandra, the compounder gave anti emetic injection i.e. Emeset 4mg, which contains Odansetron 4mg, which is most safe, standard and commonly used drug in post-operative nausea, to the patient in presence of a qualified doctor. Emeset injection caused anaphylactic reactions, which is its adverse effect. Anaphylaxis cardio pulmonary arrest, hypersensitivity reactions, bronchospasm, cardiovascular effect and syncope are reported adverse drug reactions of Odansetron injection and OP-1 & 2 cannot be held responsible for it. Cardio respiratory collapse was diagnosed immediately and managed by OP-1 and 2 with the team of qualified doctors. Senior Anaesthetist Dr. V.S. Pachauri put the patient on intermittent positive pressure ventilation by Boyle’s machine. The pulse oxymeter showed adequate oxygen saturation in the body of the patient.

11.    Admittedly, ‘brain death’ of the patient was caused to due to side effect of the injection Emeset 4mg. As per OP1 and 2, ‘anaphylaxis cardio pulmonary arrest’ was a known side effect of this medicine. The complainants have alleged the compounder gave anti emetic injection, intra venous instead of intra-muscular to the patient. This fact has not been controverted. They filed Affidavit of Evidence of Smt. Shakuntala Devi, mother of the patient, who was present in the ward, at the time the patient complained ‘nausea’. She stated that soon as the patient complained ‘nausea’, she immediately informed it to the staff present in the ward. At that time no doctor was present there. After some time, a person, claiming to be the compounder, came and gave an injection to the patient. Immediately thereafter, the patient started writhing in pain and her body started jumping on bed. The person, who gave the injection, run away on the pretext that he was going to call the compounder. None of the doctor came to attend the patient. Then she sent her daughter-in-law to call complainant-2 and her son. When her son and complainant-2 came and made efforts, then after some time, the doctors came and started treatment.

12.    Dr. Mukesh Chandra and Dr. Ramesh Chandra filed their joint Affidavit of Evidence. In paragraph-12 of this Affidavit, they only stated that anti emetic injection i.e. Emeset 4mg was given on the advice of Dr. Mukesh Chandra. Cardio respiratory collapse was diagnosed immediately and managed by OP-1 and 2 with the team of qualified doctors. The OPs withheld the hospital record to prove that at what time Emeset 4mg was given and at what time they started managing ‘anaphylaxis cardio pulmonary arrest’. As per medical literature 5 minutes is crucial period to cause ‘brain death’ in case of deficient oxygen supply to the brain. Smt. Shakuntala Devi was not cross-examined by the OPs. Admittedly ‘brain death’ had occurred as such it is proved that at least during the golden hours to save the brain, no medical assistance was provided. ‘Anaphylaxis cardio pulmonary arrest’ was a known side effect of the injection Emeset 4mg. Then it is reasonably, expected that before injecting Emeset 4mg to the patient, all arrangement to meet out its side effect would have been done. This injection was given at the time, when there was no doctor in the nursing home. From the evidence on record, it is proved that the doctor came there only after brain death. State Commission has illegally ignored the evidence on record and misguided itself by saying that in the absence of expert evidence, the version of the doctors has to be accepted. State Commission has illegally ignored the judgment of Supreme Court in V. Kishan Rao’s case (supra). The order of State Commission is illegal and liable to be set aside.

13.    So far as compensation is concerned, a lady of 45 years aged suffered from ‘brain death’ on 02.09.2003 and died on 10.06.2006. During this period she remained in vegetative state. Not only the patient but entire family suffered with lot trauma and physical harassment. The complainants claimed compensation of Rs.23/- lacs, which appears to the appropriate looking to the age of the patient and suffering of the patient and her family members.   

ORDER

In view of aforesaid discussions, the appeal is allowed with cost of Rs.one lac. The order of Sate Commission dated 02.01.2015, passed in CC/14/2004 is set aside. CC/14/2004 is allowed. Dr. Mukesh Chandra (OP-1) and Dr. Sanker Nursing Home (OP-2) are jointly and severally directed to pay Rs.23/- lacs with interest @6% per annum from the date of filing of the complaint, as compensation to the complainants, within a period of two months from the date of this judgment.