BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.139 of 2015
Date of institution: 01.04.2015
Date of Decision: 11.02.2016
Mansha Kaur w/o Vijay Singh d/o Amarjit Kaur, resident of House No.WZ 1632, First Floor, Rani Bagh, Delhi -34.
Second Address: H.No.2823, Sector 61, Mohali.
……..Complainant
Versus
1. Dr. Santosh Kumar Agrawal, Shiwalik Hospital and Trauma Centre, Sector 69, SAS Nagar.
2. Dr. Sukhdev Saini, resident Medical Officer, ACE Heart and Vascular Institute, Sector 69, Mohali.
3. Dr. Puneet Kumar Verma, Sr. Consultant, Chief of Intervention Cardiology, ACE Heart and Vascular Institute, Sector 69, SAS Nagar.
4. United India Insurance company Ltd. Divisional Office, SCO 72, 2nd Floor, Phase-IX, Sector 63, Mohali through its Divisional Manager (Insurer of OP No.1).
5. United India Insurance Company Ltd., 42-C, 3rd Floor, Moolchand Commercial Complex, New Delhi through its Manager (Insurer of OP No.2 and 3).
6. The Shiwalik Hospital and Trauma Centre, Sector 69, SAS Nagar, Mohali through its Director Dr. Santosh Kumar Agrawal.
7. ACE Heart and Vascular Institute Sector 69, Mohali through Dr. Puneet Kumar Verma.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Ashok Verma, counsel for the complainant.
Shri Munish Gupta, counsel for OP No.1 and 6.
Shri Vaibhav Narang, counsel for Nos.2 & 3.
Shri Madan Choudhary, counsel for OP Nos.4 & 5.
OP No.7 exparte.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) refund the amount of Rs.3.00 lacs as cost of surgery.
(b) pay Rs.10.00 lacs towards negligence of the OPs which has caused the death of mother of the complainant.
(c) pay Rs.5,000/- as costs of legal notice.
(d) pay Rs.20,000/- as costs of present proceedings.
The case of the complainant is that her mother namely Amarjit Kaur was under treatment of the OP Nos.1 to 3 from last 1 ½ years due to her hip joint problem. The mother of the complainant was successfully operated by OP No.1 on 11.04.2014 by charging Rs.1,10,000/- and Rs.85,000/-. Mrs. Amarjit Kaur was discharged from the hospital on 15.04.2014 by OP No.1. The patient recovered well under the strong medicines administered by OP No.1 but developed severe acidiosis within the body which gave a feeling of vomit. Mrs. Amarjit Kaur was examined by OP No.1 post surgery on 10.05.2013. OP No.1 was satisfied with the progress and advised to come again on 23.05.2014 for final check up. Mrs. Amarjit Kaur on 11.05.2014 and 12.05.2014 complained weakness and breathlessness. On contacting OP No.1, he advised stopping of exercise for next two days and further advised to take Vitamin D missed with milk. OP No.1 was over confident with his treatment and he ruled over ECHO test which was conducted on 10.05.2014. The patient was subscribed paradox (blood thinning medicine) only for 5 days on being discharged from the hospital. However, the breathlessness problem was continuing and the patient was taken to OP No.1 who asked the complainant to go to OP No.7 where her ECG was taken by Dr. Rai who told the brother of the patient that there is slight aberration in the ECG but there was no heart attack or any serious matter. The mother of the complainant was shifted to ICU for further tests and no one was allowed to go to ICU. The process of putting the mother of the complainant into ventilator commenced only after cardiac arrest had taken place. Prior to that OP No.2 appeared to be casual enough in dealing with emergency leading to untimely death of mother of the complainant. The complainant tried to know from OP No.1 as to what was happening but he refused by saying that he would only come after OPD i.e. 3.00 PM. OP No.3 told the complainant and her brother that their mother had died because of clot formation of blood and the clots travelling in the heart and lungs. The clot formation only takes place if blood thinning medicine is not prescribed. However, he washed off his hands by saying that he was in ICU to assist Dr. Sukhdev Saini and cannot tell exact cause of death. Due to inadequate service of the doctors the complainant had lost her mother who was lifeline of the family. Thus the act and conduct of the doctors amounts to deficiency in service and unfair trade practice. The complainant sent a legal notice on 12.06.2014, however, OP No.1 to 3 in their reply denied any medical negligence and deficiency in service on their part. With these allegations the complainant has filed the present complaint.
2. OP No.1 and 6 in their joint written statement have pleaded that OP No.1 is a consultant and OP No.6 is hospital. OP No.1 is practicing orthopedics in Chandigarh and Mohali since 1996 and has worked with Forits Hospital, Mohali and other hospitals. The complaint is not maintainable against the OP No.1 and 6 as it is filed by Mansha Kaur who has no authority from the other legal heirs of deceased Amarjit Kaur. The complainant has not pleaded in the complaint that how and in which manner she comes within the ambit of Consumer Protection Act and how she can be treated as Consumer. No expert evidence has been produced in support of the allegation leveled in the complaint. Mrs. Amarjit Kaur was admitted in OP No.6 on 09.04.2011 at 4.30 PM with the diagnosis of inflammatory arthritis left hip with Hypertension. The patient consented for total hip replacement in the witness of her husband Avtar Singh. On 11.04.2014 total hip replacement was performed on her left hip using Zimmer implants after undertaking all necessary investigations. The operation was 100% successful and post operative period was uneventful with good recovery. The patient, her daughter and other relatives were satisfied with the operative procedure and post operative treatment. The patient was discharged from the hospital on 15.04.2011 in a very stable and satisfactory condition. Her post operative check was OK, wound was dry/healthy, dressing was done and physiotherapy was given. She was advised necessary medicines and other precautions as per discharge report and advised to come 10 days later for review. The patient was having physiotherapy at home. The patient did not come for further follow up rather the complainant came for advice on 26.04.2014 and informed that they have got sutures removed at home and the patient has been mobilizing at home and has no pain at operation side. The patient was examined on her follow up visit to the hospital on 09.05.2014 when she was found to be absolutely fit. The patient was subsequently brought to the OP No.6 for check up on 13.05.2014 and after seeding the condition, the complainant was asked to get the patient checked up at OP No.7. OP No.1 escorted the patient to the emergency of OP No.7. Later on OP No.1 was informed that inspite of best efforts of attending doctors in ICU of OP No.2 and 3, the patient expired. The cause of death by a clot in the lung is an assumption or hearsay as the death certificate issued by OP No.7 says that patient suffered cardiac arrest after she was put on ventilator. However, the exact cause of death could only had been ascertained by the autopsy which was not done for reasons best known to the complainant. Simply because the patient developed respiratory problem after one month of discharge from OP No.1 does not mean that OP No.1 can be held liable for medical negligence. Thus, denying any medical negligence on their part, OP Nos.1 and 6 have sought dismissal of the complaint against them.
3. OP No.2 in its separate written statement has pleaded that he has given assistance to on duty senior and experienced Resident Medical Officer in the ICU/CCU and does not have any role in the treatment given to the patient. The patient was brought in a very serious condition on 13.05.2014 at 12.44 PM and inspite of giving diligent treatment the patient lived only for one hour and twenty six minutes. The patient was not prior registered or under follow up in ACE Heart & Vascular Institute. The attendants of the patient informed that the patient had undergone Total Hip Replacement surgery one month ago in Shivalik Hospital. Thereafter the patient was shifted to ICU/CCU from emergency department owing to her unstable clinical status. The blood pressure of the patient found to be 60.40 mgHg with failing heart rate of 36 and blood oxygen saturation of 76%. Thereafter the patient was immediately put on non invasive ventilator support followed by intubation and mechanical ventilation. Inspite of all efforts the patient could not be revived and succumbed to her illness on 13.05.2014. Denying any medical negligence on his part, OP No.2 has sought dismissal of the complaint against him.
4. OP No.3 in written statement has pleaded that no cause of action arose against the present OPs. The complaint is false and fabricated. OP No.3 is a well qualified, reputed and respected doctor. The patient was brought in a very serious condition on 13.05.2014 at 12.44 PM and inspite of giving diligent treatment the patient lived only for one hour and twenty six minutes. The patient was not prior registered or under follow up in ACE Heart & Vascular Institute. The attendants of the patient informed that the patient had undergone Total Hip Replacement surgery one month ago in Shivalik Hospital. Thereafter the patient was shifted to ICU/CCU from emergency department owing to her unstable clinical status. The blood pressure of the patient found to be 60.40 mg Hg with failing heart rate of 36 and blood oxygen saturation of 76%. Thereafter the patient was immediately put on non invasive ventilator support followed by intubation and mechanical ventilation. Inspite of all efforts the patient could not be revived and succumbed to her illness on 13.05.2014. Denying any medical negligence on his part, OP No.3 has sought dismissal of the complaint against him.
5. OP No.4 and 5 in their separate written statement have pleaded that complicated question of facts are involved in the present complaint which have to be proved on the basis of evidence and summoning of the witnesses and cannot be tried only on the basis of affidavits alone. OP No.3, 6 and 7 were indemnified by them subject to certain terms and conditions, exceptions/exclusions etc. of the said policies.
6. Notice issued to OP No.7 was duly served but none appeared for it. Therefore, OP No.7 was proceeded against exparte vide order dated 11.05.2015.
7. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1, and tendered in evidence documents Ex.C-1 to C-17.
8. Evidence of OP No.1 and 6 consists of affidavit of Dr. Santosh Kumar Aggarwal Ex.OP-1/1 and copies of documents Ex.OP-1/2 to Ex.OP-1/8.
9. Evidence of OP No.2 and 3 consists of affidavit of Dr. Mitvinder Singh Sandhu, Ex.OP-3/1 and copies of documents Ex.OP-3/2 to Ex.OP-3/5.
10. Evidence of OP No.4 and 5 consists of affidavit of Hemali Batra, their Dy. Manager Ex.OP-4/1 and policies Ex.OP-4/2 to Ex.OP-4/4.
11. We have heard learned counsel for the parties and have also gone through the written arguments filed by them.
12. As per the complainant, her mother was patient of OP No.1 and was under treatment for hip bone infirmity and pain for the last 1-1/2 years. On 09.04.2014 the patient was got admitted in the hospital of OP No.1. During her stay in the hospital as indoor patient she was operated on 11.04.2014 for hip joint replacement. The mother of the complainant i.e. patient Amarjit Kaur was discharged on 15.04.2014 with the advise to re-visit the hospital after 10 days for removal of sutures. As per discharge report, the complainant was given post operative medication as per the medical protocol. However, the complainant alleged that the post operative medication given to the patient by the treating doctor i.e. OP No.1 was very strong and upon administration of the medicine, the patient developed severe acidosis within the body leading to constant feeling of vomiting. The patient re-visited OP No.1 post surgery on 10.05.2014 and the treating doctor i.e. OP No.1 was satisfied with the post operative progress. The patient was again advised to visit on 23.05.2014 for final checking. As per the complainant on 11.05.2014 and 12.05.2014 the patient was feeling weakness and breathlessness at home and was constantly in touch with OP No.1 on phone seeking medical advice. The patient was not recovering from immediate problem of breathlessness and weakness; therefore, on 13.05.2014 the patient visited OP No.1. OP No.1 upon examination referred the patient to OP No.7 who happens to have the medical facility in the same premises as that of OP No.1. The patient was admitted with OP No.7 and was immediately shifted to ICU and put on ventilator support but despite best efforts, the patient could not be revived and succumbed to her illness on 13.05.2014 at 2.10 PM. As per the complainant, the treating doctor i.e. OP No.1 has not prescribed the proper doses of blood thinning medicines, leading to breathlessness and heart problem which was the ultimate cause of death of the mother of the complainant namely Amarjit Kaur. Thus alleging deficiency in service and medical negligence on the part of treating doctor i.e. OP No.1, the complainant has instituted the present complaint. The allegation of the complainant against OP No.2, 3 and 7 i.e. the hospital and the treating doctors who treated the patient immediately before her death was that the treating doctor OP No.2 did not attend the patient as he was busy in OPD and further has not informed the relative of the patient exact cause of death and thus the acts of OP No.2, 3 and 7 as per the complainant are unfair trade practice.
13. It is admitted fact that the patient was under treatment with OP No.1 and has undergone hip bone transplant surgery. It is further admitted that before death of the patient on 13.05.2014 at 2.10 PM she was admitted with OP No.7 and was treated by OP No.2 and 3. In order to prove the allegation of medical negligence against OP No.1 the treating doctor who is working in the hospital of OP No.6 and unfair trade practice on the part of OP No.2 and 3 who are treating doctors working in OP No.7, the vital questions for determination would be (a) whether OP No.1 had under prescribed the doses of blood thinning medicines leading to breathlessness and severe acidosis causing death of the patient; (b) whether OP No.1 and 6 are liable for medical negligence leading to death of the patient; (c) whether there is an act of unfair trade practice on the part of OP No.2 and 3 the treating doctors working with OP No.7.
14. In order to answer the first question, it will be appropriate to go through the discharge report as Ex.C-4 issued by OP No.6. As per OP No.1 tablet Pradax 1 BD for 5 days has been recommended at the time of discharge of the patient on 15.04.2014. This is a blood thinning medicine required for hip transplant surgery as per medical protocol. The said medicine has been administered to the patient for 5 days during her stay in the hospital and due medication was given as per nursing notes Ex.OP-1/5. The patient was administered Preventive Anti Coagulant Therapy in the form of Injection Clexane during her hospitalization period of 5 days. Thereafter, she was further advised Pradaxa medicine for another 5 days as per medical norms and literature. Since the patient was not having any other associated high risk factor for developing clots in leg veins (DVT) and there was no indication of any such event in the post operative period as the patient had no pain/tenderness or swelling in the legs and as such the patient was already ambulatory and mobile, there was no indication or need felt for prolonging disc therapies beyond 10th post operative day. Besides, the patient was already advised post operative physiotherapy by mechanical method of clot prevention like ankle foot exercises at home. Therefore, as per the skill and wisdom of the treating doctor who is fully qualified to undertake the hip transplant surgery, 10 days medication was sufficient and is in no manner is treated to be under dose as alleged by the complainant. The counsel for OP No.1 and 6 has relied upon the judgment of the Hon’ble National Commission rendered in Satya Prakash Pant Vs. Dr. P.N. Joshi & Anr. II (2015) CPJ 608 wherein it has been held that the doctor is not a guarantor of a cure and error or judgment unless it is proven that an error of judgment is result of negligence, the doctor cannot be fastened with any liability of medical negligence. In the instant case, the complainant has not proved any nexus between the post operative therapy and the cause of death of the patient. Thus the decision of Hon’ble National Commission Satya Prakash Pant Vs. Dr. P.N. Joshi & Anr. (supra) squarely applies to the facts of the present complaint.
15. As per PGI opinion Ex.C-12 the DVT prophlaxis is recommended for a minimum period of 10-14 days after major hip surgery and against the said recommendation as per the wisdom of the treating doctor, he has prescribed 10 days medication keeping in view the overall conditions of the patient i.e. the patient was of 70 years age having other age related medical problems. Therefore, as per OP No.1 he has not violated any medical norms and has prescribed the medicines as per recommended medical norms. The counsel for the complainant on the other hand has relied upon the PGI expert report Ex.C-12 wherein the PGI authorities have given their observation that the patient was administered DVT Prophylaxis 5 days in the form of tablet Pradaxa (Dabigatran) and observed that the possibility of death allegedly due to deep venous thrombosis (DVT) Pulmonary Embolism cannot be ruled out in the absence of definite investigation or autopsy. Thus as per counsel for the complainant the doctor has prescribed under dose of medicines that may be the cause of death of the patient due to Deep Venous Thrombosis and the act of OP No.1, therefore, is a case of medical negligence ipso facto proved on the record. The treating doctor OP No.1 on his own behalf as well as on behalf of OP No.6 the hospital countered the arguments of counsel for the complainant stating that the PGI report is based on incomplete records as the complainant has not submitted the hospital clinical record which clearly reflect the administration of Pradaxa for 5 days to the patient during her stay in the hospital. Thus, the report of PGI is based on incomplete records and further the PGI report is not definitive, rather it is a guarded report as there is no definitive investigation or autopsy done after the death of the patient. Further as per PGI report, the drugs mentioned in the treatment record are unlikely have directly caused any clinical significant metabolic acidosis as alleged by the complainant. Therefore, as per OP No.1 there is no medical negligence on the part of OP No.1 and OP No.6. Further as per OP No.1 in the medical literature acidosis is associated with clot in the lungs (Pulmonary Embolism). Metabolic acidosis has been linked with the intake of some poison, drugs like aspirin besides other causes and the metabolic acidosis being the cause of death cannot be ascertained without post mortem which in this case the complainant has not got done. Therefore, in the absence of post mortem report, metabolic acidosis being the cause of death cannot be attributed to the prescription of under dose of medicine by OP No.1. Acidosis is the condition when too much acid is accumulated in the body which is distinctively abnormal condition resulting from the accumulation of acids or from the depletion of alkaline reserves. In acidosis the PH of blood is abnormally low. The opposite of acidosis is alkalosis in which there is too high of PH due to excess base or insufficient acid in the body. The PH factor in the blood having 7.0 values indicates neutrality whereas PH of less than 7 indicates acidity and PH of more than 7 indicate alkalinity. In the present case, as per the death summary when the patient was shifted to ICU her blood pressure was 60/40mm hg. heart rate 36 and blood oxygen saturation of 76%. The ABG test was conducted which revealed metabolic acidosis and hyper kalmias. The patient was immediately administered sodium bicarbonate and calcium gluconate. The condition of the patient at the time of death has no co-relation with the hip replacement surgery treatment and the post operative medication given by OP No.1. Thus, the complainant has not been able to prove the prescription of under dose of blood thinning medicines leading death of the patient. Thus, the first question has been answered in negative, against the complainant.
16. Since the complainant has not been able to establish the nexus between the prescribed medicine and cause of death, thus there is no medical negligence on the part of treating doctor i.e. OP No.1 and OP No.6 hospital.
17. So far allegation of unfair trade practice against OP No.2 and 3 the treating doctors working with OP No.7 hospital is concerned, the treatment record and death summary Ex.OP-3/2 shows that the patient remained in the hospital only for few hours as the patient was admitted in the hospital on 13.05.2014 at 12.45 PM and succumbed to her illness on 13.05.2014 at 2.10 PM. During this period, the patient remained in ICU and emergency and was incubated and was put on ventilator support. ABG test was conducted showing severe metabolic acidosis and she had cardiac arrest. Hospital has done CPR as per ACLS protocol and DC shock 200 joules were given and despite best efforts the patient could not be revived and succumbed. The allegation of the complainant that during this period OP No.2 did not attend to the patient, as he was occupied in the OPD. The mere allegation is belied as OP No.2 is a Resident Medical Officer whereas OP No.3 the Sr. Consultant and treating doctor who was available throughout the treatment as is evident from the clinical notes attached. Further the both the doctors have signed the death summary. To ascertain the real cause of death the autopsy and post mortem was required to be got conducted by the complainant as the death summary does not disclose the cause of death as per medical protocol. Thus, there is no unfair trade practice on the part of OP No.2, 3 and 7.
18. So far as OP No.4 and 5 is concerned, they being the indemnifier of OP No.1,2,3,6 and 7, since no medical negligence deficiency in service, and unfair trade practice is proved against OP No.1,2,3,6 and 7, therefore, OP No.4 and 5 have also no role to play in the present complaint and qua them the complaint is not maintainable.
19. In view of above discussion, the complaint is dismissed being devoid of merit. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
February 11, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
