DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 371/07
Sh. Subhash Jain,
S/o Late Sh. B.L. Jain,
r/o House No. 298, Western Kutchery Road,
Meerut. -Complainant
Vs
1. Delhi Heart & Lung Institute
3 M.M-II, Panchkuian Road,
New Delhi – 110055, India
2. Dr. Ganesh K. Mani,
C/o Delhi Heart & Lung Institute,
3 M.M-II, Panchkuian Road,
New Delhi – 110055, India
3. Dr. P.K. Sharma,
C/o Delhi Heart & Lung Institute
3 M.M-II, Panchkuian Road,
New Delhi – 110055, India
4. Dr. Basant Dalmiya,
C/o Delhi Heart & Lung Institute
3 M.M-II, Panchkuian Road,
New Delhi – 110055, India. -Opposite Parties
Date of Institution: 20.11.06 Date of Order: 18.02.16
Coram:
Mr. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
The case of the complainant, in nutshell, is that on the basis of the report of Angiography in Sushila Jaswant Rai Hospital, Meerut on 30.12.2005, the complainant was referred to OP-1 Hospital for heart treatment of acute angina pain where he was advised immediate Bye pass Surgery (CABG). Based on the advice of OP-2 & OP-3, he was admitted in the OP-1 hospital on 8.1.06. He was operated upon for Bye pass Surgery (CABG) on 9.1.06. The surgery was performed by OP-2 along with his team including OP-3 & 4. After the operation of Bye pass Surgery, the complainant was discharged from the OP-1 hospital on 16.1.06 with number of prescriptions and advises. The copy of the discharge summary is Annexure P-3 collectively. He was called upon to report to hospital on 23.1.06 for removal of stitches. The complainant while being discharged from the hospital complained about the pain but was given assurance by OP-2 that the pain would be over in couple of days’ time and the post operation medical tests of the complainant were perfect. Accordingly, the complainant reported to OP-1 hospital on 23.1.06 and the stitches were removed. The complainant felt no improvement. Not feeling relieved from the pain, the complainant again went to the institute of the OP-1 on 23.2.06 and revealed the said condition to the then attending doctor i.e. Dr. Basant Dalmiya, OP-4 who allegedly told him that some wrong medicines had been prescribed due to which the complainant was feeling problem. Accordingly, OP-4 changed the medicines and advised the complainant to take the said medicines for a month with assurance that his condition will improve in the next couple of weeks. Feeling no relief, the complainant again went to OP-1 hospital on 20.3.2006 where he was attended by Dr. P.K, Sharma, OP-3 who assured him that his condition would get stable surely. On 20.3.2016 his condition deteriorated in OP-1 hospital and he was admitted to the hospital for few hours. Not feeling relieved from the pain, the complainant again visited the OP-1 hospital on 27.4.2006 where OP-2 examined the complainant and was said to have expressed his regret for prescription of wrong medicines. A copy of the prescription-slip is annexed as Annexure P-5. The complainant was still not relieved of his pain and OP-2 referred him to carry a test “Coronary CT Angio (Cardiac)” at Mahajan Imaging Centre, Hauz Khas, New Delhi, by saying that the said test was a latest test and much authentic and better than angiography. Accordingly the complainant underwent the said test at Mahajan Imaging Centre on 19.5.2006 and the complainant found that his original problem had remained the same and the operation conducted by OP-2 & 3 was a failure. The relevant extract of the test conducted is as follows:
- Complete occlusion of the aortocoronary venous graft to OM1 branch of LCX and also severe proximal narrowing of the other venous grant to PDA branch of RCA.
- Marked atherosclerotic changes in the native coronary arteries with presence of extensive calcific plaques.
On the advice of OP-2 according to whom he did not believe in “Coronary CT Angio Cardiac” test and his team of doctors, the complainant again underwent Angiography in the OP-1 hospital on 12.6.06. After angiography OP-2 advised the complainant for undergoing re-bye pass surgery for the reasons that since two (2) arteries which were grafted the graft were blocked and the third artery was working but its flow was very less. Copy of this Coronary Angiography report is annexed as Annex. P-9. The complainant having felt disgusted with the response of OP-2 right from inception of medical treatment went for another opinion of Dr. S.K. Gupta, Senior Interventional Cardiologist, Indraprastha Apollo Hospital, New Delhi on June 13th, 2006 who also advised him to undergo re- bye pass surgery (CABG) as the surgery which was conducted on the complainant was useless and of no good. (copy of report Annexure. 10). The complainant paid Rs. 2,00,000/- to the OPs and spent more than Rs. One Lac in further tests, medicines, Coronary Angio Cardiac Test etc. Feeling aggrieved with this treatment given to him by OP-1/OP-2 and his team of doctors, the complainant served legal notice upon the OPs on 13.6.06 demanding explanation and compensation towards mental torture, physical trauma and harassment. The said notice was replied by the OPs on 17.7.06. The complainant also took opinion of Dr. Rakesh Yadav, Cardiothoracic & Neurosciences Centre, AIIMS, New Delhi on 19.7.06 who is stated to have blamed the surgery conducted on the complainant and also advised to undergo bye-pass surgery again. Dr. Yadav also cautioned the complainant that there is more danger of life loss in case of re-bye-pass surgery performed on the complainant. The doctor also informed the complainant that the surgery carried on by Dr. Ganesh K. Mani (OP-2)and his team of doctors was an “off-pump” surgery which is less expensive as compared to “on-pump” surgery which should have been conducted on the complainant. The doctor also informed the complainant that in medical science prior permission must be taken by the doctors from the patient before conducting “off-pump” surgery. The said report also illustrated that there is still 90% (ninety percent) blockage in the heart and undergoing two operations at Delhi Heart & Lung Institute was a sheer waste of time, money and energy. Opinion of the said Doctor is annexed as Annex. P13. The complainant has blamed that OP-1, OP-2 and his team of doctors had worked in a most unprofessional manner and in gross negligent manner in performing surgery upon the complainant which resulted in the diagnosis of re-bye-pass surgery of the complainant. Hence, pleading deficiency in service on the part of the OPs, the Complainant has prayed for issuing following directions to the OPs to:-
- Pass an order of refund of Rs. 3,00,000/- (Rupees Three Lakhs) along with compensation amounting to Rs. 15,00,000/- (Rupees Fifteen Lakhs) for mental torture and harassment, thus, totalling Rs. 18,00,000/- (Rupees Eighteen Lakhs Only)
- Grant interest @ 18% per annum both pendent lite and future up till realization, on the aforesaid decretal amount from the date of filing of the instant complaint in favour of the complainant and against the defendants/respondents herein both jointly and severally.
- Award costs in favour of the complainant and against the defendants/respondents both jointly and severally towards the present proceedings.
OP-1 and OP2 have filed their separate replies while OP-3 and OP-4 have filed a joint reply to the complaint. Written statements contain similar pleas. OPs have generally refuted the complaint as grossly unfounded, misdirected, false, uncalled for and initiated with malafide intentions and malice with the sole aim to extort money from the OPs. They have disputed questions of facts and asserted that the instant case call adjudication based on expert opinion and can only be decided in a Civil suit and cannot be adjudicated in summary procedure by this Forum. The OPs have inter-alia asserted that “it is common knowledge that medical treatments to ailments cannot be fool proof but are the best practices available. As such a medical practitioner would advise clients on the best technology and facility available in the view of the history of the patient, diagnosis in the relevant circumstances and the benefit of the patient being kept in mind. OPs have further asserted that “the complainant was advised that occlusion of the grafts was on account of the complainant’s reaction to the grafts. The complainant was also explained the circumstances under which such occlusion take place”. OPs have denied that OP-2 felt sorry to the complainant for alleged wrong prescription of medicines as a sheer allegation besides being utterly false with malafide intention and defamatory nature. They have reiterated that some more medicines were prescribed by the concerned doctor as per the complaint of the complainant. The OPs have further contested the claim of the complainant by pleading that the complainant has failed to prove any charge of negligence or deficiency in service. In their reply they have stated that “medical science recognizes and indeed accepts the fact that early occlusion of a perfectly patent graft after the surgery happens and some times within a short of period of one month from the surgery itself. This condition, known as intimal hyperplasia has been documented and is a perfectly acceptable risk, beyond the control of the cardiac surgeon, in a CABG Procedure. It is also an established medical fact that chances of occurrence of intimal hyperplasia are more in a patient suffering from diffused stenosis of the blood vessels”. OPs have categorically stated that “it is denied that “off pump surgery’’ that was carried by Dr. Ganesh K. Mani (OP-2) and his team of doctors is less expansive as compared to “on-pump surgery” or the OPs should have conducted an “on pump surgery” on the complainant. OPs have further denied that operation on the complainant was conducted without his consent. True copy of the said consent is annexed as Annex. R-I. It is prayed that the complaint be dismissed.
Complainant has filed a rejoinder.
Complainant has filed his affidavit in evidence. On the other hand, affidavits of Dr. (Maj.) Y.B. Sharma, Medical Superintendent of OP-1 Hospital, Dr. Ganesh K. Mani – OP-2, Dr. Parmod Kumar Sharma – OP-3, Dr. Basant Kumar Dlamia – OP-4 have been filed in evidence on behalf of OPs.
We have heard the Proxy counsel for OP-1, 3 & 4 and have also carefully perused the record.
Now, we straightway come to the question, whether the surgery was performed upon the complainant in a most unprofessional manner and with gross negligence which resulted in diagnosis of re-bye pass surgery?
Complainant has relied upon documents Exh. PW1/1 to PW1/12. On the other hand, OPs have tried to demonstrate the standard practice of CABG and also re-bye pass surgery by illustrating the standard prescribed treatment and surgical procedures adopted for treatment on the complainant.
In order to establish deficiency in service and negligency on the part of the medical professionals, we are reminded of the decision of the Apex Court in case of Jacob Methew Vs State of Punjab, 2005 (6) SCC 1 where the Supreme Court observed that “a simple lack of care, an error of judgment or an accident is no 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 of 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. A Professional may be held liable for negligence on one of the two findings : either he was not possessed of the requisite skills which he professed to have possessed, or he did not exercise, with reasonable competence in the given case the skill which he did possess. 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 yardstick for judging the performance of the professional proceeded against, on indictment of negligence”.
Now, we come to the allegations made by the complainant vis-à-vis exhibits relied upon by him. We find in Para 11 of the evidence of complainant that he has impugned OP-2 for wrong prescription of medicines and feeling sorry for the same relying upon Ex. PW1/5 whereas in this exhibit, aforesaid allegations are nowhere reflected. The complainant has further blamed OP-2 for not conducting surgery in a proper manner and due to negligence on the part of the OPs situation was worsened and the complainant had been advised to undergo re-bye pass surgery as per Exh. P10 whereas this exhibit does not prove the allegation of not doing the operation properly and negligently on the part of the doctors. The complainant has further blamed the OPs for undergoing the operation at the institute of OP-1 as sheer waste of time, money and energy by relying upon the opinion of Dr. Rakesh Yadav, Cardiothoracic & Neurosciences Centre, AIIMS, New Delhi as per Annexure P13 in Para 21 of the complaint. No document has been filed as Annexure P13. Copy of the report is in fact Annexure P12. On examining P12 we find that it does not cast any aspersion on the professional efficiency of OPs. In fact, imputation of negligency and unprofessional conduct of OPs by the complainant are devoid of any substantial medical proof. Therefore, the complainant has failed to prove negligency in the light of aforesaid ratio-decidendi.
We would have otherwise obtained expert opinion of the Medical Board but the complainant himself moved an application on 30.4.2010 before this Forum to refer the matter to a Committee of Doctors specialised in the field. Accordingly, the case was referred to Safdarjung Hospital to have expert opinion which has been tendered by the Safdarjung Hospital in the Form of medical opinion conducted by the Board of two Experts which is as follows:
“1. Mr. Subhash Jain, as per records, had chest pain and underwent Coronary angiography test on 30.12.2005 at Meerut. It revealed that there was critical blockage in all three arteries.
Based on the report, the patient was advised to undergo bypass surgery.
2. Patient underwent bypass surgery on 9.1.2006 at Delhi. Three grafts were placed, one to each of the three blocked artery. Two of the three grafts were taken from veins of the legs and an artery supplying blood to chest wall was used as the third graft. This is a fairly standard procedure worldwide.
3. It is a well-known and medically established fact that many grafts especially from the leg veins close down early. This is most often a patient characteristic rather than a technical or surgical fault.
4. In the given case also, patient had problem again and the coronary angiography done on 12.6.06 showed that while the chest wall arterial graft was working the two grafts from the leg veins were blocked.
5. The committee felt that there is no discernible error on part of the treating surgeon. The blockages of leg vein grafts are related to natural progression of the disease in the patient.”
(we mark the report as Annex. A for the purposes of identification)
In view of the above discussion and the case-law cited above, we do not find any material to sustain the allegations of carrying out operation in most unprofessional manner and any gross negligency by the OPs. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(NAINA BAKSHI) (N. K. GOEL) MEMBER PRESIDENT
Announced on 18.02.16.
Case No. 371/07
18.2.2016
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed in default. Let the file be consigned to record room.
(NAINA BAKSHI) (N. K. GOEL)
MEMBER PRESIDENT
