ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaint filed by the Complainant under Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as OPs) alleging the deficiency in service in not conducting the operation by OP-2 himself and allowing OP-3 to perform CABG Operation thereby causing deficiency in service and negligence and for reimbursement of Rs.5,80,000/- towards the medical expenses and treatment and for Rs.14,00,000/- as compensation for deficiency in service and for causing mental agony, physical strain and Rs.15,000/- towards the cost of the proceedings and cost and other relief as the Commission deems fit.

2.     The brief facts of the complaint are that; OP-1 is a corporate hospital and OP-2 is a renowned heart specialist working with OP-1 and OP-3 is also a cardiologist surgeon working under OP-2.  Complainants mother Smt. Basavannewwa S Hiremath was under consultation with OP-2 as she was suffering from heart related problems. After going through the earlier / previous medical records, he was advised to undergo Coronary Artery Bypass Surgery (CABG) and the complainant’s mother was admitted to OP-1’s hospital on 21.03.2011 and the operation was to be done on 23.03.2011 by OP-2. OP-1 got the consent form signed by Smt Basavannewwa wherein she expressly stated in the consent form that the operation is to be conducted by OP-2 himself and his team of doctors. On 23.03.2011, CABG operation was performed by OP-3 instead of OP-2. Afterwards, the patient developed severe bed sore over her gluteal region from 25.03.2011 onwards. It is due to the grave negligence on the part of the staff of OP-1. There was no proper treatment post surgery by the nursing staff. 

3.     Even the surgical area did not heal and there was formation of puss around the said area. The patient was unable to sit after the surgery and developed breathlessness and unable to walk and the condition  deteriorated and same was brought to the notice OP-2 and 3 who gave frivolous reasons and informed the same would reduce gradually. On 30.03.2011, the complainant noticed blood coming out of the operated area and there was excess formation of puss and gap in the surgical area (sternal wound). Patient was suffering from immense pain due to excess discharge. The same was brought to the notice of OP-2 and 3 who directed the nursing staff remove the dressing and do a best dressing.  Without ascertaining the actual cause, they also discharged the patient on 31.03.2011 when she was suffering from breathlessness, chronic bed sore and sternal wound. At the time of discharge also, the blood in the surgical area had not subsided.  The health of the patient was deteriorating during her subsequent visit to the hospital, OP-2 did not show any interest to identify and rectify the issues even though the patient visited on 02.04.2021 and 12.04.2021 for regular checkups.  Left with no other alternative, the patient was taken to KLES Medical Research Center, Belgaum. During that time, she developed pressure sore at Sacral region i.e. Grade III - bed sore over at the gluteal regions and puss oozing out of the external wound due to the gap over the surgical area.  She was admitted to the hospital at Belgaum for treatment again. She suffered breathlessness due to acute edema, ischemic heart disease caused due to infection, due to negligence of the OPs. The pus was removed from the surgical area in Belgaum Hospital.  The issues faced by patient could not be cured and it aggravated. The patient conditions was extremely severe.  Before CABG operation, the functioning of the heart was 55 % as on 21.03.2011. After the operation, it got reduced to 37% on 12.07.2012 and the health of the patient deteriorated. 

4.     The reduction of LVEF Mitral Valve (MR) and left ventricle indicates that the operation conducted at OP-1 by OP-3 was not successful due to the grave negligence on the part of OPs and surgical and post-surgical treatment. Even in the KLES hospital, the health of the patient deteriorated due to severe bed sore developed after surgery in OP-1 hospital and she passed away on 08.03.2013 due to grade-III bed sore over the gluteal region and formation of puss at the external wound gap of the surgical area of CABG. OP-2 was absent during the operation and it amounts to dereliction of duty by OP-2 and in OP-3 conducting operation though specific request by the patient in the consent form that the same should be done by OP-2 only. The nursing staff did not treat her properly post CABG which resulted in bed sores. She suffered extreme pain, infection and sepsis, internal organ damage, loss of immunity and discomfort which led to her death.  The operation conducted by Op-3 was unsuccessful and did not perform the operation properly and that is why, various problems arose leading to her death.

5.     No adequate care was taken by the OPs. Legal notice was issued on 06.08.2014. It was served on OPs on 07.08.2014 and 16.08.2014. Inspite of it, neither they responded to the legal notice nor complied the demand. The cause of action of the complaint arose 21.03.2011 the day of admission on 23.03.2011 the date of operation on 25.03.2011 the date on which bed sore developed, on 30.03.2011 when blood coming out from the surgical area, on 31.03.2011 when she was discharged from the hospital, and from 24.04.2011 upto 08.03.2013 the date on which she passed away and also on 06.08.2014 when she issued legal notice which was served on them. Hence the complaint.

6.     Upon the service of notice, OP.1, 2 and 3 appeared before the commission, OP.1 and 2 filed version and same was adopted by OP-3 by filing a memo.

7.     In the version filed by the OPs, it is contended that the complainant filed is on false, frivolous, vexatious and untenable grounds and liable to be dismissed under Section 26 of the Consumer Protection Act. It is also contended that the same is filed after two years from the date of cause of action, as contended in para 17 of the complaint and hence the same is liable to be dismissed under Section 24 of the Consumer Protection Act.

8.     The complaint is filed after four years from the date of surgery on the allegation of negligence by OP. If at all there was any negligence on the part of OPs, he would have filed the complaint without waiting for four long year. The death of the patient on 08.03.2013 took place nearly after two years from the date of surgery, i.e. 23.03.2011.  It is unbelievable and to far-fetched to allege that the death is due to the surgery conducted by OP after two years.

9.     It is alleged  in the version that the complainant’s mother was a known case of diabetes mellitus and hypertension and she consulted Op.2 with the said complaints, exertional dyspnea, swelling on over limb since 2-3 months. On examination and evaluation placed and medical reports, she was advised by OP-2 to undergo CABG and she got admitted to hospital on 21.03.2011 and operation was performed on 23.03.2011. Herself and her relatives were explained the procedure involved and after, and the surgery was conducted by OP-2 with the assistance of his team.  OP-2 is a qualified MBBS, MS, DNB, MCH Forensic surgery and well experienced cardio vascular surgeon having experience of around 30 years in the field. OP-3 is also MBBS, MS, BNB, General Surgery Cardio Thoracic Surgery having experience of 10 years. The surgery was completed successfully and post operative care was taken properly. The patient developed complication like bed sore and infection due to diabetes, prolonged illness severe sickness, immovability age factor and obesity.  She was not able to move as she had undergone a major CABG operation where a mechanical device intra biotic balloon pump was attached. Hence with the already existing medical conditions of the patient, coupled with immobility the patient developed post operative complications like bed sore and infection which would occur to the patient in some percentage of patients.

10.   As per various medical literature such a complications and such a type of  bed sore and infections are common post CABG in small percentage of patients. The medical factors and diseases contributed with the complications.  The progress note shows that the patient conditions was changing periodically, and was treated regularly to reduce the bed sore and a sick was changed regularly. Since her condition was stable she was discharged on 31.03.2011 with an advise to follow-up with OP-02 and one Dr.Somashekar Reddy.  The patient was examined on 05.04.2011 by OP.2 and on that day, sutures were removed and wound was dry. Treatment of bed sore was advised as evidenced from the OP on the said date. Again on 07.04.2011 she was given a dressing for bed sore. On 12.04.2011 again the patient was examined in respect to wound on the right side, and bed sore. The bed sore was improving, adviced with medicines for diabetes, so that the wound and infections could be controlled. It seems that the patient did not follow up with the OP and got treatment somewhere else. 

11.   If she had continued the treatment with the OPs, the complications would have been controlled. She was advised follow-up with Dr. Somashekar Reddy to take care of diabetes. Her infection would be under control. Without heading to the advise, the patient took treatment elsewhere and it do not know what type of treatment was given and dressing for her bed sore in other hospital. In view of this, OP has no control of the patient management since she did not come up for further followup treatment. Without following advice, filed this complaint claiming medical expenses and compensation which is just to make unlawful gain. Denying all the allegation s made against it in the complaint in each every para of the complaint, prayed the forum to dismiss the complaint.

12.   It is further contended that the contention raised by the complainant in Para 12 regarding the fall of the working capacity of the heart, it is contended that the patients consumes more liquids and do it over loaded, the patient medications are not smartly handled or not taken at all, is the patient developes respiratory infections, and under stress the LAEF with the LVEF will fall down.

13.   It is further contended that the patient’s heart was already weak as she had already had an heart attack part of it was permanently irreversibly destroyed and scared. In such when patients the pumping power becomes less because of the above factors, the ejection fraction in the above was showing low. If the patient is maged, the ejection percent can be raised.  37% ejection indicates heart failure which is not surprising in the patient who is basically diabetic with LB dysfunction. It is also contended that the patient who had not undergone periodic health checkup after 40 years and allowed to suffer heart attack with contributes to drop in ejection of fraction, and OPs cannot be blamed as the patient was out of their management, when there was a drop in LVEF ejection fraction.

14.   The patient had already suffered heart attack before coming for surgery and had weaker left ventricle as evidenced by regional valve motion, abnormali LV erection fraction in the preoperative ECO Cardiography, This dysfunction and reducted  is caused by earlier heart attack, is permanent irreversible it needs to be managed by tight life style controls careful followup medications. If not done properly, then the left ventricle is likely to get weaker leading to dialation of left ventricle, reduction in LVEF, functional mitral regurgitation due to dialation and stretching  and distortion or mitral valve caused by dialation of left ventricle. 

15.   Even after one year of surgery  the patient did not bother to consult doctor. Hence Ops are not responsible and aware of the condition of the patient.  It is contended that the diabetes of the patient was not well controlled as per the summary sheet of the LE hospital. The HBA1C was 7.4 indicative of sugar not being under control. HBA1C known as Glycoxilated Hemoglobin. It shows the trend of diabetic control over the last three months. It should be below six. If it was 7.5 denotes that diabetes was not at all controlled.  When such being the case, one cannot expect the wounds heal satisfactorily or the infection come under control.  Under these circumstances, the allegation made by the complainant are false, untenable without any cause and there is no negligence, deficiency on the part of Ops and hence the complainant is not entitle for reimbursement or medical expenses, or compensation or cost of complaint, and hence prayed the Forum to dismiss complaint.

16.   In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complaint is barred by law of limitation?

3) Whether the complainant is entitled to the relief prayed for in the complaint?

17.   Our answers to the above points are:-

POINT NO.1:            In the Negative.

POINT NO.2:            In the Affirmative

POINT NO.3:            In the Negative.

                                For the following.

REASONS

POINT No.1:-

18.  Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the mother of  the complainant Smt. Basavannewwa S Herimath was admitted to OP-1 hospital for coronary artery bypass surgery CABG to be performed by OP-2 as per the consent for operation given by the patient.  It is mentioned therein that “I Mrs.Basavannewwa, W/o Siddaramaswamy Hiremutt willing to undergo the said operation of the CABG (On Pump or Off pump) Open heart surgery to be undertaken by Dr.Vivek Javali under suitable Anesthesia.  The risk and benefit of the procedure involved have been explained to me. Also the graft patency depends on the inherent biological factor. I understand and accept them.”  She has also given consent for epidural anesthesia. She has also given consent for oesophogel echo cardiography examination under anesthesia during operation. 

19.   On perusing the contents of the complaint and the affidavit evidence of the complainant the allegation is that on 23.03.2011 the operation to his mother was performed by Mr. Dr. Mohammed Rehan i.e OP-3 in this case instead of OP-2 which is contrary to the wishes of the mother of the complainant who is the patient who has signed the consent form and thereby there is negligence on the part of the Ops. It is also contended in the written arguments filed by the complainant at Para 4 that against to the said consent, the operation was done by Dr. Rehan and Dr.Prashanth whose reference has been made in the profusion notes at Page 83 and there is no mention of the name of Dr.Vivek Javali in the said notes and it is clear the operation was not conducted by Dr. Vivek Javali, though the consent for operation was given to Mr. Vivek Javali to perform the operation himself. He was not present, did conduct operation on that day.  The consent is clear that Vivek Javali and his team only to conduct the operation and not by any doctor. The operation conducted by Dr Rehan was not consented by the mother of the complainant. 

20.   On perusing the documents filed by the OPs and also the affidavit filed by OP-2 Dr Vivek Javali in this case, it becomes very clear that OP-2 has sworn to the affidavit stating that he himself has performed operation. Further he has also stated that he is a qualified surgeon and did his MBBS from MR medical college Gulbarga in 1974 and MS from JJM medical college, Davanagere in 1979 and MCH in CVT surgery from KEM hospital and Seth GS Medical College, Mumbai in 1984 and well experienced cardio vascular surgeon having experience of around 30 years in the field and he is also a designated Chairman, Department of Cardio Vascular Sciences, Fortis hospital, Karnataka and Goa, Chairman Medical Advisory Council, Fortis hospital Karnataka and also cardio vascular sciences of Goa region, member of academic council and medical council and member board of director, BLD University and Medical college, Bijapur and Member Governing Council, JSS institution and also earned various awards from Harvard University Lifetime Achievement award for medical excellence in India in 2006, Dr.B.C.Roy Award for medical excellence, Karnataka Rajyothsava Award and Kempegowda Award for outstanding citizen.

21.   It is also contended that he has performed 22,000 cardiothoracic and vascular surgeries and has performed open heart surgery to a 74 year old patient who had already underwent triple bypass and aortic valve surgery in 2002 and also the first surgeon in India to perform bypass surgery while heart is beating in 1992 and minimally invasive bypass surgery in September 1994 and Awake Cardiac Surgery (Surgery without GA or Ventilator under continuous high thoracic epidural) in June 1999 and Trans-abdominal Cardiac Surgery in May 2014. 

22.   It is his further contention in the affidavit evidence that himself and his team of experienced doctor performed CABG on 23.03.2011 on the mother of the complainant who got admitted to Fortis Hospital Cunningham Road on 21.03.2011. After the operation on 25.03.2011 she developed bed sore and blood started oozing out from the surgical area on 30.03.2011 and the same was treated and discharged on 31.03.2011.  Afterwards she had come to him for after operation examination and her last visit was on 12.04.2011.  Afterwards she did not come to him for taking further treatment. She took treatment with doctor KLE hospital, Belgaum and she died on 08.03.2013.

23.   It is further contended that the surgery was a complicated one and high risk was involved due to the mother of the complainant being diabetic and hypertension.  The consequences of the surgery, success of surgery, and after effect of surgery was explained to the patient as well as her relatives. Further the surgery CABG was completely successful and post operative due care were also taken by OP. Whereas the patient developed complications like bedsores and infection due to diabetes, prolonged illness, severe thickness, immobility, age factor and obesity.  CABG is a major operation. She could not able to move due to the said operation. Hence a mechanical device “Intra aortic balloon pump” was attached. Due to the said instrument, the blood supply to the heart would be left and patient cannot move and hence patient would be susceptible to bed sores. Due to already existing medical condition coupled with immobility and post-operative complication developed, it is possible that bed sore and wound infection occur in some percentage of patients.  She was given treatment for the bed sore and the same was reduced as per the progress notes and the dressing was frequently given and the position of the  patient was changed periodically and the back cleaned regularly to prevent and reduce the bed sore and to treat the infection, they prescribed the drug by named Magnex combination of Cefoperazone + Sulbactam to be injected to the patient intravenously which is broad spectrum and antibiotic which acts against most infection and better absorption. It his treatment has recorded in pages 30 to 35 of the record and the wound was dressed regularly and with an advice to take up the advise of himself and Dr.Somashekar Reddy and the mother of the complainant was  discharged from the hospital.

24.   It is further affirmed in the affidavit that on 05.04.2011 they examined the patient the wound was dry the sutures were removed, and dressing was given to the bed sore as per the OPD slip and further again on 07.04.2011 he examined the patient, and on 12.04.2011 again he examined the patient and he complained of wound on drain site and bed sore. He noticed that the infection of bed sore was improving and advised for further dressing and further prescribed medicines for diabetes, so that the wound and infection would be controlled. She was advised to take treatment on the advise of Dr. Somashekar Reddy for diabetes so that for infection and for bed sore due to diabetes and other complication could be under control.  Afterwards the patient did not followup him or any doctor of OP-1 hospital and she took treatment somewhere else and do not know whether the patient was provided with proper dressing and care for the bed sore during her stay at her home or in other hospital. They had no control over the patients management in that respect as they did not come for further treatment and followup treatment. 

25.   It is also stated in the affidavit in clear terms that the documents produced itself clearly go to show that himself and his team conducted the operation as per the consent given by the patient.  The allegation of OP-3 conducting the operation instead of him, is misleading and false but he himself has performed the surgery on the patient. Due to the complications for diabetes, obesity and immobility the patient developed bed sore which came under control after the treatment was given. It is also contended that, the patient was suffering from diabetes  13 years prior to CABG. The skin integrity depends on the patients’ blood pressure perfusion sugar level and also the health of the patient. If there is no blood pressure, lack of blood supply to the skin then to breath with the patient is having weak heart the heart the major organ like brain, kidney the skin will have least preference and the patient is overweight and lying maximum pressure builts and skin tends get worn which resisting will grow it will become red and can later on breach to ulcer and bed sore of warrant. They have control the bed sore well by providing medicines.  The progress reports at page 73 shows that the “patient was confortable sitting over the chair” at 3.10 pm on 30.03.2011 also noticed that there is no blood oozing and wound were clean sutures were also removed and wound was on 05.04.2011. They have taken utmost care in their hospital and there was no negligence on their part and all these facts and circumstances were taken into consideration read with documents, it becomes clear that the OP-2 and 3 working in OP-1 hospital have taken maximum care while performing the CABG on the mother of the complainant and afterwards they have treated the post-operative complication fairely effectively and with all care.

26.   It is to be noted here that, the matter was referred on the application made by the party to Karnataka Medical Council for enquiry and report upon the reference made to the Karnataka Medical Council , the medical council comprising of registrar Dr.B.P.S.Murthy and Dr.H.Veerabharappa  the President Karnataka Medical Council upon holding an enquiry and going through the documents produced before it and also the literature and research paper in respect of the said treatment and post-operative treatment given, have come to the conclusion that there is no negligence on the part of the Doctor who performed the operation and in managing the complainant’s mother during operation and after operation. It is stated that “After going through complaint, Expert opinion and review of the citations, it has opined that there is no medical negligence in the management of the complainant’s mother Smt.Basavannewwwa S.Hiremath during her treatment at Fortis hospital”. 

27.   OP-2 has also relied on literatures and journals in respect of the pressure ulcer disfactor in cardiac surgery, deep wound infection after cardiac surgery. When this is taken into consideration, the bed sore that has occurred to the patient who underwent CABG operation is quite common in few patients who have diabetes, hypertension, obesity and other complications mentioned in Para 5 sub para 1 to 7. We have gone through the said write upto.

28.   It is to be noted here that, the OT register produced wherein Dr. Javali and Dr.Rehan have attended the surgery on 23.03.2011. The OT register of Fortis hospital earlier, Wochard hospital has been produced.

29.   It is to be noted here that and also admitted by both the parties that on 21.03.2011 mother of the complainant was admitted to the hospital of OP-1 and on 23.03.2011 she was operated for CABG on 31.03.2011 she was discharged and OP-2 last saw the patient on 12.04.2011.  Afterwards though OP.2 and 3 and in particular OP.2 advised the complainant’s mother to have further examination have not done so and afterwards they have taken treatment at KLE hospital at Belgaum. The documents produced by complainant himself is clear in that respect. After the treatment given by KLE hospital, depending on the requirement of the patient i.e. mother of the complainant survived for nearly two year and died on 08.03.2013. When this is taken into consideration if at all as per the allegations made that the operation done by Op.2 and 3 in OP1 hospital was not proper, carelessly done and negligently treated after the complications, he would not have survived for such a long time. Hence it is to be inferred here that there is no negligence on the part of OP.2 and 3 in performing the surgery and treating the patient post-operative for the medical complication she developed. Hence we answer POINT NO.1 IN THE NEGATIVE.

POINT NO.2 AND 3:

30.   Also we observe here that as per the literatures produced by the OP-2 and 3 and according to it are the known complication in such a type of surgery that too patient are suffering from blood pleasure and diabetes and which fact has been made known to the mother of the complainant when she had given the consent for the surgery. 

31.   A crucial point has been taken by OP is that the point of limitation. According to OPs this complaint ought to have been filed within 2 years from the date of discharge from OP-1 hospital as the complainant has alleged negligence on the part of the OP in firstly OP-2 not performing or not conducting the surgery by himself and allowing OP-3 to perform or conduct the surgery on the mother of the complainant, and secondly not treatment the bed sore and other complication that arose post operatively and there is negligence on the part of OP. It is the contention and defence taken by Op that the complaint ought to have been filed before 12.04.2013 as the last day on which OP.2 and 3 have last seen the mother of the complainant who had come for post-operative treatment and afterwards, she did not come for taking advise suggestion or prescription. According to OPs, the cause of action commenced from the date of operation and from the date of the last visit of the complainant and according to Consumer Protection Act, Section 24-A within two years from that date, complainant ought to have been filed. Whereas, in this case the mother of the complainant survived for nearly 2 years after the operation and she died on 08.03.2013.

32.  The death of  mother of the complainant is not directly or indirectly related to the surgery and treatment given by OP-2 and 3.

33.   The complainant has stated that the cause of action for the complaint arose on 21.03.2011, 23,03.2011 and 31.03.2011 the date of discharge and according to complainant it extended upto 08.03.2013 the day on which his mother passed away and also subsequently the date of issue of the legal notice.  It is to be seen here that the complaint is filed before this Forum on 02.03.2015 he has calculated the period of limitation from 08.03.2013 considering the date on which his mother passed away.  Whereas actually the cause of action in respect of the negligent  act of OP-2 and 3 actually commenced from the day on which the operation was conducted and patient was discharged and also when the complainant’s mother has sought advise lastly from OPs.  Hence this complaint ought to have been on or before 12.04.2013.   On that ground also this complaint filed is beyond the time prescribed under Section 24-A of Consumer Protection Act 1986. In view of the same, we answer POINT NO.2 AFFIRMATIVE. In the result the complainant is not entitle for any of the relief claimed and we answer POINT NO.3 ALSO IN THE NEGATIVE and pass the following;

ORDER

1. Complaint is dismissed. Parties to bear their own cost.

2. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 30^th DAY OF JUNE 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the consent form.

Ex P2: Copy of Fortis medical reports.

Ex. P3: Copies of all the medical records of KLES.

Ex P4: Office copy of the legal notice dt:06.08.2014

           along with acknowledgment dues cards.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Dr. Jawali VS, Chief Cardiothoracic & vascular Surgeon of OP.No.1

RW-2: Smt Aparna Bogadi Anatha Subbaraya, Head medical services of OP.No.1

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the claim petition along with insurance details in respect of the deceased Basavannewwa.

Ex R2: Copy of the Death Certificate in respect of Basavannewwa.

Ex R3: Copy of the OT register maintained by OP.

 MEMBER                               PRESIDENT

*RAK