Complaint filed on: 21.04.2011                                                     Disposed on: 25.01.2017

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.776/2011

DATED THIS THE 25^th JANUARY OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant: -                     

Deepak

S/o Late Ghanashymdas Kori

Aged 32 years

Santosh Bhawan,

Mannu Chowk,

Teekrapara,

Bilaspur

Chattisgarh

By Adv. Sri.Rahul Gupta

V/s

Opposite parties:-    

1. Director/Manager

Narayana Hrudayalaya

Super Speciality clinic and diagnostic centre,

Address: 258/A,

Bommasandra Industrial area, Anekal Taluk (Estate) Bengaluru Rural

2. Director/Manager

Narayan Hrudayalaya

Super Speciality clinic and diagnostic centre

No.43/A-B, BDA complex,

HSR Layout,

Bengaluru

For Opposite parties No.1&2

By Advocates M/s.Justlaw

3. The New India Insurance

Co. Ltd. D.O.No.8, Yeshwanthpur,

Benglauru-22

For Opposite party No.3

By Adv.Sri.S.V.Angadi

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainant has been alleging the deficiency in service against the Opposite parties No.1 & 2 hospitals, for the alleged medical negligence shown by them before conducting the second bypass surgery on his father Ghanshyamdas Kori in between 29.06.2009 and 09.07.2009 and has claimed the total compensation amount of Rs.19,50,000/- with Rs.40,000/- towards litigations, miscellaneous and travel charges.

          2. The case of the Complainant in brief is that his father Ghanshyamdas Kori who was in serious condition was admitted to ICU of Opposite parties No.1 & 2 hospital on 19.06.2009 and he died at 9 a.m. on 09.07.2009 before he was taken for second bypass surgery, as supported by death summary Ex-A5. His father was examined and observed by Dr.Devi Prasad Shetty on 30.06.2009 as shown in Ex-A3 & A4 ECG reports and on 03.07.2009 who commented high risk for conducting second bypass surgery, after discussion with Dr.Praveen Kumar Shetty. Utmost high risk, with second package for Rs.2,50,592/- was accepted and accordingly he deposited the amount. Then also it was stated that the operation can be done only 2 days thereafter. Though it was stated on 04.07.2009, on 07.07.2009 it was again stated that Dr.Praveen Kumar Shetty has gone to seminar/conference and can be availed on next day. On 08.07.2009 it was stated that operation would be conducted on next day, i.e. on 09.07.2009, after taking his father to operation theatre at 6 am. On 09.07.2009 at 6 a.m. when he enquired, was informed to get ready by 11 a.m. which created the situation of uncertainty, stress, pressure, tension. His father walked to bath room by covering about 200ft and died by heart failure. In response to his repeated requests and demands from 29.06.2009, the Opposite parties No.1 & 2 on one or the other pretext dragged the process of operation knowingly very well that his father was critical with high risk and Rs.2.5 lakhs was already deposited and though the diabetes and BP came to normal position in view of all the medical tests and observations completed as per the medical bill Ex-A2 & A6. The legal notice dated 23/24.03.2011 as per Ex-A7 sent by post as per Ex-A8 was not replied by the Opposite parties. Hence this case is filed.  

          3. The Opposite parties No.1 & 2 filed the joint version contending that the Complaint is bad for mis-joinder of Opposite party No.2 where the Complainant or his father never visited and no allegations made against the Opposite party No.2 and hence it becomes liable to be struck off. There is no cause of action against both the Opposite parties. The alleged cause of action are separate and distinct. This case is filed with incorrect and false facts. It is filed to gain illegally by abusing the process of law, by suppressing the material facts about the health condition of his father. His father was suffering from type-2 diabetes, BP and had undergone first surgery at Apollo Hospital at Indore on 03.07.2007 as shown in Ex-B1. He had been admitted to Delhi hospital on 16/18.12.2007 as per discharge summary Ex-B2, where angiography revealed triple vessel disease and was advised to undergo CAB graft. Thereafter his father had been to Wockhardt hospital at Nagpur complaining the chest pain and discomfort in respiratory system on 22.06.2009 (Ex-A1/B3/B4). He had stopped taking tablets against the medical advice. Thereby he had severe health conditions for which the operation had to be held with utmost high risk situation. The hospital is world’s largest super speciality in cardiology with 840 beds and 25 to 30 operation theaters conducting about 35 major operations every day with the assistance of 80 and more highly qualified super speciality and experienced doctors. The health condition of the patient remained uncertain as supported by medical reports as per Ex-B5 to Ex-B30 of their hospital and hence exact date for surgery could not be fixed. The allegations that there was no wheel chair or attendant to take his father to bath room is false, baseless and absurd. He was provided with best facility and there were no short comings from the hospital. The high risk refers to significant of chance of death or high risk of mortality following the surgery and it is baselessly stated that patient with high risk needs to be operated immediately. The patient was being given with HEPARIN/substitute ECOSPIRIN till 08.07.2009. On 01.07.2009 patient was shifted from critical unit to step-down coronary unit and to ward on 02.07.2009 observing the reasonable stability with medications with the chance of patient developing heart attack was vetoed still his health condition remained uncertain. Without surgery, mortality of the patient becomes relatively high and it was informed to his relatives based on his health progress supported by Ex-B5 to Ex-B30 records. On 03.07.2009 the patient was getting chest pain and there was high risk to his life during surgery and post-surgery which made them to delay the operation after discussion and decision of cardiologists team. Blood thinning substance “Heparin” was stopped on 08.07.2009. He had to be operated at 11 a.m. on 09.07.2009. At 8.45 am he collapsed in the bath room due to sudden cardiac arrest. He immediately received CPR known as external compressions on the heart after collapsing. He was intubated and shifted to intensive therapy unit and connected to the monitor. He was administered atropine and adrenaline. Then also he remained in low cardiac output and succumbed to death at around 4 p.m on 09.07.2009 due to Malignant Arrhythmias. The patient had two coronary events, known triple vessel disease along with left ventricular functional impairment. Unexpected sudden deterioration is known to occur in such patients. The patient succumbed to his illness due to a complication, which is part of the natural history of triple vessel disease which had developed immediately after first CABG along with LVEF. There was no negligence or deficiency on their part. The complaint is liable to be dismissed with costs.

          4. The Complainant has filed his affidavit evidence, relying on Ex-A1 to Ex-A8 documents. Three doctors filed their affidavit evidences relying on Ex-B1 to Ex-B30 documents. Written arguments were filed by both the parties relying on number of reported decisions of Apex courts. Arguments were heard at length.

          5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainant establishes the alleged negligence and deficiency in service by the Opposite parties No.1 & 2 in not conducting the proposed second bypass surgery on his father Ghanshyamdas Kori in between 29.06.2009 and 09.07.2009 as alleged ?
2. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Negative

2) As per final order – for the following      

REASONS

          7. Consumer Dispute No.1: The undisputed facts reveal that one Sri. Ghanshyamdas Kori, aged 62 years, was the father of the Complainant from Bilaspur of Madhyapradesh and he was the cardiac patient who underwent heart surgery earlier in 2007 and while taking treatment at Wockhardt hospital, Nagpur got discharged against the medical advice on 22.06.2009 as shown in Ex-A1 discharge summary and came and admitted to Opposite parties/Narayana Hrudayalaya hospital, Bengaluru on 29.06.2009. Before he was taken to proposed second heart bypass surgery with risk package accepted on 04.07.2009, he died in the morning of 09.07.2009, because of sudden cardiac arrest as narrated in Ex-A4 & A5 death reports and summary.  During his stay, Ghanshyamdas Kori/patient was subjected to various kinds of medical investigations, observations and tests started from ECG/Ex-A2 dtd.29.06.09 and also as shown in Ex-A6 bills.

          8. It is also undisputed that, dissatisfied with the time taken by the doctors of Opposite parties hospital, the Complainant got issued the legal notice Ex-A7 dtd.23.03.11 by registered post as per Ex-A8 and later filed this complaint on 21.04.2011.

          9. In support of his allegations regarding the medical negligence in addition to Ex-A1 to Ex-A8, he has referred 5 authorities but has not produced the materials. He has not produced the medical literature or the expert’s evidence so as to connect the alleged medical negligence to the death of his father. He has contended that the doctors of Opposite parties hospital being specialists in cardiology section owe greater responsibility because of their specialized skill and knowledge [(1987) 62 OR (zd) 613], they had to perform operation giving special attention and necessary supervision till the discharge of the patient [(1937) 4 All ER 494], they had to keep the treatment costs within the affordable limits by following standard treatment procedures and disclosure of risks consequences [AIR 2008 SC 1385], if any act is done without the consent of the patient, it has to be treated as the assault in his body [(1914) 211 NY 125] and the doctors ought to have explained the situation to the family members of the patient in case of death as to how the known method of treatment made available to him.    

          10. The materials available from the side of the Complainant show three major contentions:

(1) After the admission of the patient on 29.06.09 and after accepting high risk package on receiving Rs.2.5 lakhs on 04.07.2009 from him, the Opposite parties made procrastination to proceed for proposed second bypass surgery as a result of which only the patient died on 09.07.09.

(2) The Opposite parties failed to provide availability of the attendant to the high risk and critical patient, especially when the patient had to go to bathroom by covering 200ft distance.

(3) Dr.Praveen Kumar Shetty to whom the responsibility was given for the proposed surgery was out of station in connection with conference/seminar and it became the reason for procrastination which in turn caused the death of the patient.

          11. The term “high risk” is referred by both the Complainant and Opposite parties with conflicts of opinions. According to the Complainant, high risk means the Opposite parties had to perform the operation without causing delay and also at the earliest time.  According to the Opposite parties, the high risk means the significant chance of death or high risk of mortality following surgery. The Opposite parties contended that human body is too complex to be easily understood. No doctors/hospitals can guarantee 100% result on the patients admitted at the hospitals for treatment. Just because an unfortunate death occurred, no presumption of negligence can be drawn on the hospital/doctors that they did not provide proper facilities. There was no negligence or short comings on the part of hospital or the staff in providing services.

          12. The Opposite parties have relied on 8 citations, 7 medical literature papers, 30 hospital documents to defend their case.

          13. Before deciding the medical negligence and the deficiency in service by the doctors in the hospital, the health condition of the patient in between 29.06.09 and 07.07.09 has to be considered.  The patient was known case of diabetes, mellitus, systemic, hypertension, coronary artery disease, triple vessel disease. He had developed triple vessel disease within 1½ years of first CABG of the year 2007.  Though he had approached Wockhardt hospital at Nagpur got discharged against medical advice as shown in Ex-A1 and he was then suffering with angina on extension class II with the complaints of giddiness, easy fatigability as shown in Ex-B3/CAG study report annexed with sketch. After he was admitted to Opposite parties hospital on 29.06.09 as per Ex-B9 & B10 admission formats, he had severe left ventricle dysfunction with LVEF of 35% or less at high risk of life threatening, irregular heartbeats that can cause sudden cardiac arrest/death as narrated in Ex-B11/ECG report and chart.  The text book of Cardiovascular medicine/6^th edition shows that LVEF and overall crude mortality rates relating to patient’s case was high that means worsening HF and arrhythmia were the leading specific causes of death.

          14. The patient being diabetic also had the contribution to the strong risk factor for death, because of its effect as co-existing condition and its accelerating effect on the atherosclerotic process. Because of other ailments the operative of risk second CABG was about twice of that of the first. With the increased danger with such risk, if patient is admitted his every minute health condition is to be observed. Accordingly such system was made available next to the nursing staff itself as shown in Ex-B23 “nurses progress notes” in about 21 pages starting from 29.06.09 till 9.15 am on 09.07.09. The last entries there in show that at 6.30am itself with information to him, he was made to prepare of going to operation theatre. After the shift was changed at 8.0 a.m., the patient left for toilet and fell down near bathroom and immediately was shifted to second floor.  These are the system of service made available to patient. When the patient came near bathroom, he died due to sudden cardiac arrest and hence he was incubated and shifted to intensive therapy unit and was connected to monitor. The resuscitation procedures expired on 4.00 p.m due to sudden cardiac death and it is known to occur in such patients with severe left ventricle dysfunction and severe triple disease. In the instant case the negligence of the doctor or the hospital service cannot be attributed in the absence of any evidence. The negligence is the breach of duty exercised omission to do something with a reasonable manner guided by those consideration failed to attend to provide standard care and skill as the medical provisional as observed in (2010)3 SCC 480.

          15. The onus of proving the medical negligence lies on the Complainant and mere averment of the Complainant is not the evidence unless it is provided with Facta Probanda as well as Facta Probantia as observed in 2009 (7) SCC 130. Hence unless

the Complainant establishes the negligence of doctor, primary liability cannot be fastened on him as observed in (2009) 4 SCC 705. The Opposite parties by producing Ex-B1 to Ex-B30 medical records of every stage, established their standard of care in performing their duty towards the patient and no contra materials were placed by the Complainant.  The Complainant has not been able to prove the alleged negligence by any evidence of medical experts or medical literature and thereby failed to establish the rebuttal evidence, as observed in III(2003) CPJ 62 (NC). The burden of proof vested with the Complainant was not shifted and it is not for the doctors to show that they are not negligent.  The hospital records are sufficient to show that they have acted in accordance with practice accepted as proper by a responsible body of men skilled in that area as observed in the case of Bolam vs. Friern hospital management committee case.

          16. In the similar manner the allegations regarding the alleged absence of Dr.Praveen Kumar Shetty also becomes baseless and figment of imagination. Ex-B30 is the extract of O.T. main register of Opposite parties hospital and it shows that the presence of the staff and the doctors in various operation theatres. The allegation of the Complainant is that Dr.Praveen Kumar Shetty was not present on 7^th & 8^th of July 2009 in the hospital and he had been to seminar/conference.  The page no.50 of that register/Ex-B30 shows the name of Dr.Praveen Kumar Shetty in 2 operation cases on 07.07.09, 3 operation cases on 08.07.09, 2 operation cases on 09.07.09. There is no reason to disbelieve the contents of Ex-B30 register extract.  The

said entries show that from 07.07.09 till 09.07.09 Dr.Praveen Kumar Shetty was very much available in the hospital, that too in the operation theatres at different intervals of time from morning till evening. Hence the second contention also becomes falsified.

          17.  Admittedly the Opposite parties hospital is one of the biggest heart hospital in India which is having global level representation with in aim of expanding its bed strength to 5000, it has more than 30 operation theatres at present itself in Bengaluru hospital alone and has been conducting more than 30 operations per day. Absence of amenities and irregularity of staff pattern are not established by the Complainant. The health condition of the patient who was having all serious ailments had to be stabilized to the extent of bringing out of danger situation before operating on his body. Such attempts were done from 29.06.2009 itself with observations, investigations & medical tests shown in Ex-B5, B6, B11, B16, B18 & B24. As the patient had unusual 3 graft blockage, the high risk made them to see care fully to bringing him to the normal stage to avoid mortality. Such observations made them to go slow to fix the date as 09.07.09 and thereby on the previous day most of the medicines were stopped to necessitate him to take him to operation theatre. The investigations, observations made at every stage recorded in the sheets, naturally made known to patient’s family members. Such an attempt made by the hospital authorities cannot be considered as the proceedings to be taken to control within a day or two and such controlling treatments naturally has taken about a weeks time and thereby the time taken by the

hospital authorities to fix the operation date on 09.07.09 cannot be considered as medical negligence. In the result the Complainant has failed to establish the averments made in the complaint against the Opposite parties. Accordingly the Consumer Dispute No.1 is answered in the negative.

          18. Consumer Dispute No.2: Admittedly the Complainant never visited Opposite party No.2 institutions at any time relating to the alleged health problem of the patient and there was no cause of action against Opposite party No.2, but unnecessarily impleaded. The Complainant by mis interpreting high risk as an emergency case to be operated similar to vehicle accident case for a normal person has made untenable grounds without thinking about the obligation/responsibility of the doctors to control the adverse health effects of the patient which is not supported by practice of any medical field. Sudden cardiac arrest which was natural to expect in such a patient was not happened, when the patient was on bed or under medical system. Direct causation that is the death was caused by the breach of medical service is not established with cogent evidence. Medical experts evidence or literature become necessary to overrule the evidence of the Opposite parties. There is no reason to disbelieve the medical facilities provided to the Complainant in the absence of rebuttal evidence. In view of the findings of Consumer Dispute No.1 the Complainant deserves to get the following:

ORDER

          The Complaint of the Complainant is here by dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 25th day of January 2017).

Documents marked on behalf of Complainant:

Documents produced on behalf of Opposite parties No.1 & 2