MRS. M. SHREESHA, MEMBER The present Complaint, under Section 12 read with Section 21 of the Consumer Protection Act, 1986 (for short “the Act”), has been filed by the Complainants alleging culpable medical negligence on the part of Opposite Parties, i.e. Fortis Hospital, a Unit of International Hospital Ltd. and Dr. A.K. Singh, Director and Head of the Department of Neurosciences of the Hospital on the ground that the Opposite Party No. 2, Dr. A.K. Singh (for short, “the Treating Doctor”) was not present in the Operation Theatre during the Carotid Angioplasty procedure performed upon the Complainant No.1 despite the assurance given by him and as a result of this the Complainant has suffered a major stroke. Briefly put, facts relevant for the disposal of the Consumer Complaint are that Complainant No.1 (for short, “the Patient”), aged 73 years old, Second Complainant’s wife and mother of Complainant Nos. 3 to 5, was suffering from some neurological problems. She was admitted at Indraprastha Apollo Hospital for treatment and was diagnosed with Bilateral Carotid Artery Thrombosis, which was causing more than 90% stenosis due to plaque in RBC and RIC.After discharge from the said Hospital, on 28.06.2006, Complainant No.3, Patient’s son, sought an appointment with Opposite Party No.2, Dr. A.K. Singh, (for short, the “Treating Doctor”) an expert in the field of Neurosciences working Opposite Party No.1, Fortis Hospital (for short, the “Hospital) in the capacity of Director and Head of Department of Neurosciences, for further opinion and treatment of the Patient.The Treating Doctor advised that the best course of action for the Patient would be to undergo a surgical procedure, i.e., Right Carotid Artery Stenting. He also informed the Complainant Nos. 2 & 3 that the procedure was as simple as Angiography and since the Patient had already undergone Angiography twice, therefore, there was nothing to worry. He further assured them that he was one of the few experts in India in this field of surgery and would manage the risk of emergency during the surgical procedure.However, the Complainants have alleged that the risks involved in the surgery and its management procedure were not explained to them. It is averred in the Complaint that having considered the reputation, experience, position, designation of treating doctor and believing that the Patient’s life would be in safe and expert hands of the Treating Doctor, the Complainants agreed for the surgery procedure. The Patient was admitted in the Hospital on 06.07.2006 and the Complainant Nos. 2 & 3 (husband and son of the Patient) gave their consent for the procedure. However, it is alleged that the Opposite Parties did not obtain the written Consent from the Patient though she was in a position to give her Consent. Though the surgery was scheduled for 10.07.2006 but the same was suddenly preponed and was performed on 08.07.2006 without any reason being explained to the Complainants.According to the Complainant Nos.2 & 3, the surgery took substantially more time than the time which was informed to them and during this time they were waiting outside the Operation Theatre. It is stated that after passing of substantial time and much pressure from Complainant Nos. 2 & 3, Dr. S. Dua and Dr. V. Gupta emerged from the Operation Theatre and they informed them that because of development of sudden complications during the Surgery, excess time was taken to complete the procedure. However, no satisfactory explanation was given to them about the sudden complication. Upon the Complainants insisting to meet the Treating Doctor, they were informed that he was not present in the Operation Theatre at the time of operation as he had left for some urgent work. It is averred that even the Complainants did not see him coming out of the Operation Theatre. It is alleged by the Complainants in the Complaint that non-performance of surgery upon the Patient by the Treating Doctor is complete contravention of the representations and assurances made out by him at the time of admission. It is averred that the Treating Doctor had left the Patient in the hands of other lesser experienced Doctors and that the complications during the surgery had resulted due to reckless and culpable act of Treating Doctor not handling the complicated surgery. It is further stated that it was only on 10.07.2006 that the Treating Doctor met Complainant Nos. 2 & 3 for a short while in the ICU and informed that the Patient would be shifted to normal room very shortly. But, on the very next day, in a meeting with the Complainants, it was admitted by the Treating Doctor that serious complications had developed in the Operation Theatre resulting in paralysis of the left side of the body of the Patient. He also gave assurance that things would become quite normal very soon but the left leg and left arm of the Patient may take some little longer time to show improvement. However, despite all the best efforts of the family members to improve the condition, the Patient remained bedridden and dependent upon them for all her routine activities for more than one and half years which caused a great trauma, hardship and mental pressure upon the Complainants. It is alleged by the Complainants that they came to know from the Discharge Report of the Patient that nearly after 10 minutes of stent deployment, right ICA was noticed to be going in a spasm and a thrombus was noticed which caused severe complications resulting in left side paralysis. It is stated that an experienced Surgeon of the eminence of the Treating Doctor could have well controlled the complications developed during the course of surgical procedure but the Treating Doctor remained absent in the Operation Theatre during the critical phase of the complicated surgical procedure on an elderly Patient. The Complainants have alleged that such conduct of the Treating Doctor tentamounts to gross and culpable negligence as being an Expert Surgeon and Head of Neurology Department, he was fully aware of consequences of his absent from the Operation Theatre. There was total violation and breach of trust that Complainants had reposed upon him.Due to medical negligence on the part of the Treating Doctor, the Patient had been forced to remain in the Hospital for a period of around seven weeks before her final discharge without any improvement and to live a life of virtual vegetable causing extreme emotional and financial hardship to the other Complainants as well. It is also alleged that a substantial amount has been incurred on the recovery/treatment of the Patient and the Complainants were bound to change their life style. Treating Doctor was an employee of the Opposite Party No.1 Hospital and as such both the Opposite Parties are to be held jointly and severally liable for reckless negligence. It is stated in the Complaint that a legal notice dated 27.10.2007 was sent to both the Opposite Parties claiming compensation of Rs.1.05 crores on account of sufferings, trauma and mental torture suffered by the Patient.However, the Opposite Parties did not respond to the said notice. In the said background, alleging medical negligence and deficiency in service on the part of the Opposite Parties on account of (i) not attending the Patient by the Treating Doctor himself at the time of critical procedure in the Operation Theatre; (ii) not taking ‘informed consent’ for the procedure from the Patient; (iii) not following the Code of Ethics Regulations, 2002 issued by the Medical Council of India; (iv) not providing the medical record of the Patient, the Complainants have filed the present Complaint seeking a direction to the Opposite Parties to pay to them, jointly and severally a total compensation of Rs.1.05 Crores under the following heads:-
(i) Expenses on account of medicines ₹9,000/- (ii) Expenses on account of Physiotherapy ₹1,57,000/- (iii) Expenses on account of Acupuncture at Apollo Hospital ₹43,000/- (iv) Expenses on account of various tests ₹55,000/ (v) Expenses on account of Adult Diapers ₹75,000/- (vi) Expenses on account of Acupuncture at Home ₹20,000/- (vii) Expenses on account of Rehabilitation Centre ₹54,000/- (viii) Expenses on account of Medical Care ₹1,57,000/- (ix) Expenses on account of Maid ₹1,80,000/- (x) Expenses on Miscellaneous Items ₹20,000/- (xi) Expenses on account of Driver & Taxis ₹10,000/- (xii) Expenses on account of Rent ₹1,80,000/- (xiii) Anticipated Expenses on the machine recommended By Doctors ₹90,000/- (xiv) Damage on account of Mental Harassment & Agony ₹45,00,000/- (xv) Damages claimed by Complainant No.1 ₹40,00,000/- (xvi) Damages as claimed for future expenses ₹9,50,000/- Upon notice, both the Opposite Parties contested the Complaint. In their Joint Written Version, they raised preliminary objections on the grounds that; the Complaint is based on false and frivolous allegations; the Patient was admitted under Neurosurgery Unit and not exclusively under the Treating Doctor; a team of well qualified doctors was attending to the Patient during Carotid Angioplasty procedure and all possible efforts were made to improve the condition of the Patient and to minimize the ill-effect of the stroke suffered by her; no cause of action has occurred in favour ofComplainant Nos. 2 to 5 and hence, they are not “Consumers”; Complainants are guilty of suppression of material facts regarding the pre-medical history of the Patient and having her suffered with various episode of mini strokes in the past; prior to approaching to the Opposite Parties, the Patient had obtained treatment from Parkash Hospital, Noida, Indraprastha Apollo Hospital, New Delhi and Kailash Hospital, Noida and that no false assurance or representation was given to the Complainants by the Treating Doctor. On merits, it is pleaded by the Opposite Parties that the Opposite Party No.1 Hospital is known for excellence in Neurosciences and for providing world class facilities to its Patient; the Treating Doctor is highly qualified and has got specializations in many fields of medicine, he is an examiner of many Universities and on the panel of various Departments/Commissions, he has been recognised for his excellence in the field of Neurosciences and has received many awards; that Treating Doctor was present in the Cath Lab and the procedure, i.e. Carotid Angioplasty was done upon the Patient by a team of Surgeons led by the Treating Doctor himself; Treating Doctor along with his team was taking care of the Patient throughout the procedure and afterwards, however, as per the practice prevalent in the Hospital two members from the team, i.e. Dr. S. Dua and Dr. V. Gupta had briefed the family about the procedure and outcome of the same; as per the relevant medical literature, if the Patient had already suffered various episodes of mini strokes, the risk of the Patient having a major stroke was as high as 42% if no procedure was done upon her and 5 to 12% during the performance of surgery and hence, the risk of major stroke was reduced to 65% by performing the surgery; at the time of admission of the Patient in the Hospital, it was recorded by the Doctor on duty that she was having abnormal feeling on the left half of the face, in the left leg and left hand; she was also suffering from poor memory for the last 4/5 months; high blood pressure, heart disease, sleep apnoea andhead injuries; the Patient was operated for left thumb twice, Uterine Surgery and Umbilical Hernia; as the Patient was a known case of high risk, all the requisite pre-surgery tests were conducted on her;the procedure and the risk involved with the surgery to be performed were explained to the Patient as well as her relatives and an ‘informed consent’ was obtained from them even for anaesthesia also; after Carotid Angioplasty and deployment of stent, as there was possibility of acute thrombotic episode due to diminishing of flow in right Internal Carotid Artery, the Patient was administered cerebral protective agents such as Nimodepine, Phentoin, Papaverine, Citicholine and Heparin; upon noticing of hemodynamic instability, the Patient was intubated and put under Anesthesia and a temporary cardiac pacing was also established; since there was no flow beyond Internal Artery bifurcation, a micro-catheter was positioned at the site intra-arterial and rt-PA were administered at ICA; repeated attempts were also made to perforate the clot but only feeble flow could be established into the MCA; Patient was shifted to ICU at about 2.00 P.M. on Ventilator in sedated condition; the family of the Patient was informed about Patient having suffered major stroke as well as the rescue efforts; as per the textbook entitled Controversies in Neurological Surgery: Neurovascular Diseases (Editors Micheal T. Lawton, Daryl R. Grass, Randall T. Higashida, stroke or death commonly occurs during, immediately after and sometimes can be delayed upto many days after the procedure; on 09.07.2006, there was some improvement in the condition of the Patient and she was moving all four limbsthough there was some pain on left side; injection Pentaperzole was given to the Patient to prevent erosion of gastric mucosa, she was electively put on ventilation for maximum brain protection and was closely monitored to check the effect of heparin on ability of blood to clot; repeated Prothrombin, APTT and CT head scan were done; on 10.07.2006, her tube was removed and the Patient was put on low molecular weight heparin and ryle’s tube feeding; on bleeding from the rectum in the evening, the Patient was given fresh frozen plasma and Protamine Sulfate to reverse effect of Heparin; blood transfusion was also started; she was conscious, however, her haemoglobin had fallen down to a low level;the Patient underwent intensive physiotherapy and fed by mouth on 13.07.2006; from 17.07.2006 to till her discharge, the Patient was treated in the room and was in rehabilitation process; she was regularly attended to by Neurosurgeons, Cardiologists, Gastroenterologists and General Surgeons; she was mobilized and developed some motor power upto 2/5 in upper limb; the Patient was never in a vegetative stage as alleged; the right side of body of the Patient was completely functional and she was conscious and alert to the surroundings at the time of last examination; only because of expertise and experience of team, the Intra Arterial Thrombolysis, i.e. attempt to dissolve the clot, was done, however, the thrombus/clot could not be busted; the long duration of stay of the Patient in the Hospital was on account of Patient’s desire to continue physiotherapy and rehabilitation programmes in the hospital for which the expenses were borne by the Government under Ex-Servicemen Contributory Health Scheme; there was no violations of Rules and Regulations of Medical Council of India; all relevant medical treatment records pertaining to the Patient has already been provided to the Complainants; no medical negligence was attributable on the part of the Treating Doctor who exercised all due care, skill and experience in conducting the procedure and stabilizing the condition of the Patient after occurrence of adverse incident post completion procedure. The Complainants have filed their Rejoinder denying all the rival contentions raised by the Opposite Parties in their Written Version and reiterating the averments made in the Complaint. We have heard the Learned Counsel for the parties at some length and also have gone through the material available on record, evidence adduced before us and the Written Submissions filed by the parties. The main contention of the Complainant, who appears in person, is that a high risk operation was performed on the patient without explaining the risk prior to the Operation; that had the Complainants been informed of the exact risks in the procedure they would have exercised their choice of whether to go-ahead with the surgery or not based on the risks explained to them; that the consent form signed by them was blank without the risk having been written and, therefore, does not construe in an ‘informed consent’. It is the case of the Opposite Parties that an ‘informed consent’ was taken; that the risks were explained prior to the surgery; that the patient was a high risk patient having undergone several procedures prior to admission at Kailash Hospital and Army Hospital, and that the medical records of Kailash Hospital and Army Hospital were never furnished by the Complainants and had suppressed the previous medical history.Learned Counsel for the Hospital and the Treating Doctor vehemently contended that the Patient had suffered several mini strokes known as TIAs and that the treatment received for the same was deliberately concealed by them.Learned Counsel for the Hospital and Treating Doctor submitted that on 28.06.2006 when the Complainant No. 2 & 3 had come for OPD consultation, Treating Doctor examined the patient and recorded his diagnosis as “Bilateral Carotid Artery Atheroma”.It is submitted that as the risk of irreversible major stroke loomed large over the patient, other Carotid Stenting / Carotid Endarterectomy (CEA) was suggested as treatment.It is the case of the Treating Doctor that as the patient was suffering from repeated strokes on the left side of the upper body, since last six months, the risk of suffering a stroke was imminent.It is argued that as per the scientific data known, the patient’s risk having major stroke was almost 42% if the surgery was not done.Even the risk of suffering major stroke during the medical procedure was in the range of 5 to 12%.The risk associated with the patient was further increased on account of severity of the disease, her advanced age, associated with hypertension, heart disease, sleep apnoea syndrome and all risk factors independent to each other. As against the argument of the Complainants, it is the contention of the Treating Doctor and the Hospital that they were fully made aware of the risk involved if the surgery was not carried out together with the risks involved in the procedure and that the Complainants had exercised their choice in going ahead with the surgery.The learned Counsel also submitted that the patient’s daughter was a Doctor and hence it cannot be said that they were not aware of the risks involved and that they were not informed about the risk prior to the surgery. A perusal of the consent form filed by the Opposite Parties is reproduced as hereunder:- “INFORMED CONSENT HIGH RISK CASE Fortis Hospital Patient’s Name :- Mrs. Surjeet Sodhi UHID: 66115 IPD: 12170 Age 73 years Sex: Fe DOA 06.07.06 Unit: Neurosurgery
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Authorization for Medical Treatment, Administration of Anaesthesia and the Performance of Surgical Operation and /or Diagnostic/Therapeutic Procesdure. 1. I hereby authorize Neurosurgery Unit and those whom he may designate as associates or assistance to perform upon Surjeet Sodhi the following medical treatment, surgical operation and/or diagnostic procedures (illegiable) has been explained to me that, during the course of operation /procedure unforeseen conditions may be revealed or encountered which necessitate surgical or other procedure in addition to or different from those contemplate. I, therefore, further request and authorize above name Physician, surgeon or his designated to perform such additional surgical or other procedures as he or they deem necessary or desirable. 2. I consent the administration of Anesthesia and to use of such anaesthetics as may be deemed necessary or desirable subject to the following exceptions. (Blank) (indicate exception or non) 3. I further consent to the administration of such drugs, infusions, plasma or blood transfusion or any other treatment or procedure deemed necessary in the judgement of the medical staff. 4. The nature and purpose of the operation and/or procedures, the risk involved and the possibility for complication in the treatment of my condition have been fully explained to me and I understand the same. 5. It has been explained to me that the risk of the operation in my case is high (Blank) because of the following factors. Age related technical diff. leading to procedure assessment. Stroke – Major/Minor/early /delayed leads to neurological defect c) Heart rhythm abnormalities infection small but definitive risk of death. d) Risk of stent collapse acute/delayed leading to (illegible). I am ready to take the high risk involved in the operation. No guarantees have been promised to me. I certify that I fully understand the above consent, no guarantees have been promised to me. That the explanations (illegible) to were made and that all blanks or statements requiring insertion or complication were filled in an inapplicable paragraph struck out before I signed. Name of Doctor: Dr. Meeta Kaushik Signature of Patient: S. Sodhi Signature: (illegible signatures) Date: 07.07.06 Time: 3.15 p.m. Signature of person authorized to consent for patient (When Patient is a minor or unable to affix signatures due to mental disability.
Name of Witness:- G. D. Singh Name:- (Blank) Signature:- (Blank) Signature:-(illegible signatures) Relationship:- (Blank) Date: 07.07.06 Time: 3.15 p.m. Date:- (Blank) Time:- (Blank)” It is also pertinent to note that anther ‘informed consent’ / high risk case was also filed which is relevant for the adjudication of this case and is hence, reproduced hereunder:- “INFORMED CONSENT HIGH RISK CASE Fortis Hospital Patient’s Name :- Mrs. Surjeet Sodhi UHID: 66115 IPD: 12170 Age 73 years Sex: Fe DOA 06.07.06 Unit: Neurosurgery
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Authorization for Medical Treatment, Administration of Anaesthesia and the Performance of Surgical Operation and /or Diagnostic/Therapeutic Procesdure. 1. I hereby authorize Neurosurgery Unit and those whom he may designate as associates or assistance to perform upon Surjeet Sodhi the following medical treatment, surgical operation and/or diagnostic procedures (illegiable) has been explained to me that, during the course of operation /procedure unforeseen conditions may be revealed or encountered which necessitate surgical or other procedure in addition to or different from those contemplate. I, therefore, further request and authorize above name Physician, surgeon or his designated to perform such additional surgical or other procedures as he or they deem necessary or desirable. 2. I consent the administration of Anesthesia and to use of such anaesthetics as may be deemed necessary or desirable subject to the following exceptions. (Blank) (indicate exception or non) 3. I further consent to the administration of such drugs, infusions, plasma or blood transfusion or any other treatment or procedure deemed necessary in the judgement of the medical staff. 4. The nature and purpose of the operation and/or procedures, the risk involved and the possibility for complication in the treatment of my condition have been fully explained to me and I understand the same. 5. It has been explained to me that the risk of the operation in my case is high (Blank) because of the following factors. - < > b) (Blank)Name of Witness:- G. D. Singh
Name:- (Blank) Signature:- (Blank) Signature:-(illegible signatures) Relationship:- (Blank) Date: 07.07.06 Time: 3.15 p.m. Date:- (Blank) Time:- (Blank)” It is significant to mention that there is also the general Consent in which the patient’s name, age is written.The Unit is mentioned as Neurosurgeon Unit.The name of the Doctor mentioned is Dr. Meeta Kaushik, who has witnessed the signature of Dr. S. Sodhi.It is pertinent to mention that all other portions with respect to explanation of risk, the nature of surgery has been left ‘blank’.In the second consent form which is also signed by Dr. S. Sodhi, the risk of the operation has been written.It is the contention of the Complainant, who is present in person, that he has signed a blank form and that those portion under Col. 5 (a)(b)(c) & (d) has been written at a later stage.It is also significant to mention that the name of the Doctors who had witnessed, i.e., Dr. Meeta Kaushik and Dr. G.D. Singh had signed on both the forms. After a perusal of both the consent forms, taking into consideration the submission of the Complainant, that he had signed a blank form together with the fact that the Opposite Parties themselves have filed the consent form in which Col. 5 (a)(b)(c) & (d) pertaining to explanation of the risk of the operation has been kept blank, we are of the considered view that there is force in the contention of the Patient that he had signed a blank form and Col. 5 (a)(b)(c) & (d) was never explained to him.On a pointed query from the Bench as to how the two consent forms are divergently different – one with blanks and the other one which appears to have been filled later, the Learned Counsel for the Opposite Parties submitted that the consent form in which Col. 5 (a)(b)(c) & (d) was filled is the correct one.We do not find any substantial reason to accept this submission keeping in view that both the consent forms filed before us have the same content and also that the blank one was filed with an Affidavit by way of evidence. It is also significant to mention that in the prescription dated 28.06.2006, i.e., on the first visit of the Complainant wherein he had gone for OPD consultation, it is written “this should be done at the earliest to maximise the benefits of the procedure.”Nowhere has the word risk been written. Be that as it may, it needs to be seen whether the ratio laid down by the Hon’ble Supreme Court in “Samira Kohli Vs. Dr. Prabha Manchanda (2008) 2 SCC 1.” with respect to the ‘‘informed consent’’ has not been adhered to. The Hon’ble Supreme Court in this judgment has summarised the Principles as follows:-
“32. We may now summarise principles relating to consent as follows: (i) A doctor has to seek and secure the consent of the patient before commencing a “treatment” (the term “treatment” includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to. (ii) The “adequate information” to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment. (iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorised additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorised, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorised procedure until patient regains consciousness and takes a decision. (iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery. (v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury [464 F 2d 772 : 150 US App DC 263 (1972)] but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment.” (Emphasis supplied) From the afore-noted judgment, it is clear that the nature and extent of information to be furnished by the Doctor to the Patient to secure the consent accepted as normal and proper by Standards of medical parlance, has not been done.The consent form filed with an affidavit is blank with respect to columns explaining the risks and hence we conclude that the Doctor did not disclose the nature and procedure of treatment, benefits and alternatives, if any, available and the risks involved.Hence, we are of the considered view that as far as the issue of ‘informed consent’, there is negligence on behalf of the Hospital for not taking the same as it is a team which needs to take consent. Now, we address ourselves to negligence, if any, committed by the Treating Doctor in the ‘standard of care’ which had to be administered to the Patient. A perusal of the material on record shows, that the treatment notes of Kailash Hospital and Army Hospital have not been filed by the Complainants.It is the Complainant’s case that the patient was never a high risk patient, that the Apollo Hospital Carotid Doppler and Coronary Angiography revealed a non-critical CAD and B/L Carotid Artery Stenosis.He submitted that the patient’s left side weakness improved, the motor system was normal, there was no sensory loss, Cerebellar signs were absent and that the discharge summary of the Apollo Hospital clearly mentions no prior history of stroke and that the patient was conscious, oriented with high mental functions and maximum muscular power.It is also his case that problem of Bilateral Carotid Angiography disease was diagnosed only at Apollo Hospital and that the treatment started there only.TIAs are explained by the Opposite Parties as a symptom of underline disease of the patient.He further submitted that most complications in this operation occur intra-procedural and, therefore, the competence of the surgeon is vital and only a competent surgeon can perform this operation safely.It was vehemently argued that the Treating Doctor was never available in the operation and he never performed the operation despite giving assurances that he himself would perform the operation and it was only based on this assurance that an experienced Doctor would be performing the operation, the Complainants had agreed for the Surgery.Reliance was placed on a research Article with respect to Timing of complications during Carotid Artery Stenting, wherein the Complainant had highlighted the following complications: The most severe neurological complications are generally due to embolism and occur intraprocedurally……. Theses strokes obviously, cannot be prevented by using cerebral protection devices and enhance the importance of an appropriate learning curve that includes proper material choice, patient selection, good technique and the skill of ‘know when to quit’. It is acknowledged that the efficacy of both CEA and CAS is highly operator dependent….. After an appropriate learning curve that involves proper material choice, patient selection, good technique and the capacity of ‘know when to quit’, CAS can be safely performed. Hence, it is the submission of the Complainant that only a highly qualified surgeon can perform the operation and in the absence of the same the patient was affected and during stenting died on the operation table. A perusal of the treatment record and the discharge summary of Apollo Hospital shows that the patient underwent Coronary Angiography, performed by Dr. R. Puri which revealed non-critical CAD and Bilateral Internal Carotid Artery Stenosis for better understanding of the same, the course in the Apollo Hospital reproduced as under:- “CT Head on admission revealed, no major infarct / bleed. Patient was started on I/V Heparin in fusion along oral antiplatelets, Statin and other supportive treatment. Her MRI brain showed multiple areas of ischaemia in bilaterial cerebral hemispheres and infarcts in right basal ganglia and right mid brain. Screening of cervical spine revealed Degenerative changes. Her routine blood tests, ECG and Chest x-ray were normal and lipid profile revealed Hyperlipidemia. Her Echo was normal with LVEF-65% and Carotid Doppler showed 95% block with sort plaque in RCB and RIC (1.5 cm long) and 50 – 55% block in LCB and LIC. Opinion of Dr. Raman Puri (Sr. Cardiologist) and Dr. Alok Kumar (Sr. Physician) were involved in the management. Her Antihypertensives were with held in order to keep blood pressure on higher side for better cerebral perfusion. Coronary angiography was performed by Dr. R. Puri which revealed non-critical CAD and Bilateral internal Carotid artery stenosis. Patient was later started on s/c anticoagulants. Her left sided weakness has improved and she is being discharged on following advice.” From the afore-noted Discharge Summary it is clear that the MRI of the brain showed multiple areas of ischaemia in bilateral cerebral hemispheres and infarcts in right basal ganglia and right mind brain. Keeping in view the patient’s history and the primary diagnosis which is ‘Bilateral Carotid Artery Thrombosis’ and the age of the patient which is 73 years, we find force in the contention of the Learned Counsel for the Treating Doctor that patient was a high risk patient.The treatment record shows that Blood test, ECG, Chest X-ray was taken, the Anaesthetist evaluation was also taken; and on 08.07.2006, Carotid Angioplasty was carried out and a stent was deployed.During the check Angiogram, carried out after the procedure it was found that the flow in the right internal Carotid Artery was diminishing, suspecting acute Thrombotic Episode, the Opposite Party administered Cerebral Protective Agents and Hemodynamic stability was achieved.It is an admitted fact that the procedure on the Complainant began at 9:00 AM and she was shifted to the ICU at 2:00 PM on a ventilator and kept on sedation and that stroke which the patient suffered is pausable complication associated with the procedure undertaken by the Opposite Parties. A brief perusal of the medical literature titled, “Controversies in Neurological Surgery : Neurovascular Diseases” edited by Michael T. Lawton, it is seen that stroke during surgery is a known complication.It cannot be construed to be a common complication unless it is a high risk operation.The material on record shows that the patient was closely monitored for any changes in her body parameters, the efficacy of Heparin on the ability of blood to clot; repeated pro thrombin time and APPT were done.It is also seen from the record that CT scan of the head was repeated to ascertain bleeding if any.The Patient was also given an injection Protamine Sulfate to reverse the effect of Heparin and fresh frozen plasma was given to her.It is also seen from the record that blood transfusion was started.The Complainant’s condition improved between 13.07.2006 and 17.07.2006.The treatment record shows that she was seen by Neurosurgeons and Cardiologists and a team of doctors comprising of general surgeons and physicians. The main issue whether there is any negligence or not has to be tested on the touch stone of catena judgements laid down by the Hon’ble Supreme Court in which ‘duty of care’ in deciding what treatment to give and ‘due care in the administration of treatment’ has been laid down by the Hon’ble Apex court. The Hon’ble Supreme court in Dr Laxman Balkrishna Joshi v Dr Trimbak Bapu Godbole, AIR 1969 SC 128 has observed as follows:
“11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient, owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties, gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17). In Jacob Mathew v State of Punjab, a three-judge Bench of this Court upheld the standard of the ordinary competent medical practitioner exercising an ordinary degree of professional skill, as enunciated in Bolam (supra). The Court held that the standard of care must be in accordance with “general and approved practice”. The House of Lords per Lord Edmund-Davies, Lord Fraser and Lord Russell in Whitehouse v. Jordon & Another (1981) 1 All ER 267:
"The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon (dictum of McNair Jo. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 at 121). In Halsbury’s Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-
“The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each cases, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.” A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure." The Learned Counsel for the Treating Doctor vehemently denied that the Doctor was not present during the operation.There is also no substantial evidence on record to establish that the Doctor was not available during Surgery.Be that as it may, it is a team of Doctors who were involved in the performance of the Surgery.He also submitted that no false assurance was given to the Complainants that Doctor shall himself perform the operation.Be that as it may, the entire treatment record, medical literature evidences that 73 year old Patient was a high risk patient being hypertensive with a history of prior surgeries and neurological issues.Therefore, we are of the considered opinion that there is no medical negligence on behalf of the Treating Doctor in administering the treatment to the patient per se.However, having observed that the patient was a high risk patient which is also the case of the Treating Doctor and the Hospital not obtaining ‘informed consent’ and the importance of not explaining the risks which is evidenced in the afore-notedconsent form, wherein most columns were left blank and also the first prescription, i.e., the OPD Consultation Form, wherein the risks were not explained, the importance of the same for such a surgery and the nature of the operation concerned, cannot be undermined. For the afore-noted reasons and the fact that the ratio laid down by the Hon’ble Supreme Court in “Samira Kohli Vs. Dr. Prabha Manchanda” (supra), was not adhered to and keeping in view the patient’s age and history, we are of the considered view that awarding a sum of Rs.10 lakh would meet the ends of justice. At this juncture, we find it a fit case to place reliance on judgement of the Hon’ble Suprmee Court in Arun Kumar Manglik Vs. Chirayu Health & Medical Pvt. Ltd. & Anr. III (2019) CPJ 1 (SC) in which the Hon’ble Apex Court has observed that while computing compensation payable on the death of a home-maker a Court must bear in mind the contribution made by the home-maker. The Apex Court has placed reliance on the Late Wadhwa Vs. State of Bihar, (2001) 8 SCC 197 and on Malay Kumar Ganguly Vs. Sukumar Mukherjee (2009) 3 SCC 663 and observed as follows:- “52. In Lata Wadhwa v. State of Bihar, (2001) SCC 197, a three-Judge Bench of this Court computed damages to be paid to dependants of deceased persons as well as burn victims in the aftermath of a fire at the factory premises. The Court took into consideration the multifarious services rendered to the home by a home-maker and held the estimate arrived at Rs. 12,000 per annum to be grossly low. It was enhanced to Rs. 36,000 per annum for the age group of 34 to 59 years. 53. In Malay Kumar Ganguly v. Sukumar Mukherjee, (I2009) 3 SCC 663. Justice S.B. Sinha held thus:- “172. Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the Court for a long time. For compensating a husband for loss of his wife, therefore, the Courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife’s contribution to the family in terms of money can always be worked out. Every housewife makes a contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husband’s income, etc. Thus, in computing compensation payable on the death of a home-maker spouse who is not employed, the Court must bear in mind that the contribution is significant and capable of being measured in monetary terms.” 34. Keeping in view the principles laid down in the afore-noted judgement of Arun Kumar Manglik(supra), we are of the considered view that though the patient herein is the mother, she is a home-maker and her contribution towards the family cannot be measured in monetary terms. 35. The amount being awarded as compensation is directed to be paid by the Hospital as held that taking Informed Consent from the Patient / attendant is the duty of the Hospital. Had the Patient’s attendants been informed of the risks, considering the Patient’s age, the choice of going ahead with the Surgery or not could have been thoughtfully exercised by them. The loss of motherly love cannot be undermined and the fact remains that the patient died subsequent to stenting which further enhances the importance of taking ‘Informed Consent’. The amount awarded also includes medical expenses incurred apart from the compensation for the mental agony & loss of motherly love.
36. In the result, this Consumer Complaint is partly allowed directing the Hospital to pay Rs.10,00,000/- towards compensation within four weeks from the date of passing of this order, failing which the amount shall attract interest @9% p.a. from the date of filing of the Complaint till the date of realisation. We also find it a fit case to award costs of Rs.25,000/-.
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