Appeared at the time of arguments:

For the Appellant           :   Mr. Somiran Sharma, Advocate

For the Respondent         :   Ms. Manisha Srivastava, Advocate

    with Respondent in person

Pronounced on:  06^th April, 2023 

ORDER

Dr. S. M. KANTIKAR, PRESIDING MEMBER

Patients' expectations are defined as a set of beliefs an individual holds in regard to the treatment and its outcomes with an anticipation that a given event is likely to happen as a consequence of an intervention. Those in health care continue to increase and need to be managed adequately in order to improve outcomes and decrease liability. The days of absolute trust and blind obedience to doctors are over.

1.       The Appellant-Sanjay Gandhi Post Graduate Institute of Medical Sciences (SGPGIMS), Lucknow through his Director Mr. Uttam Singh has filed the instant Appeal under section 19 of the Consumer Protection Act, 1986 (in short “the Act”), against the Judgment dated 30.12.2019 passed by the State Consumer Disputes Redressal Commission, U.P. (hereinafter referred to as the “State Commission”) in C.C. no. 07/2015, whereby the State Commission allowed the complaint.

 2.      The facts in brief are that  the Complainant G. K. Raghuvanshi (for short ‘the Patient’) since  June  2007  was suffering from multiple health  problems like diabetes, cardiac and  kidney. Till December 2012 end  on several occasions he was hospitalized and underwent few procedures like angioplasty, CABG ,hemodialysis. On 25.07.2011 he underwent renal transplant in SGPGIMS, the kidney was donated by his wife and he was put on immunosuppressive drugs. He alleged that there was  urinary  leakage for three months after renal transplant. On 31.10.2011 he got himself discharged from the OP hospital and got admitted in Fortis Hospital on 02.11.2011. As Fortis he underwent ‘Graft kidney with closure of celestial fistula and removal of PCN tube under GA’ and the urinary leak was stopped, he was discharged on 09.11.2011.  The patient  suffered ‘gangrene’ of toes in Rt. Foot   and on 26.12.2012 consulted Dr. Amit Gupta, Professor of Nephrology at SGPGIMS. He further referred the patient to Department of ‘Endocrine Surgery’ OPD for advice. Again he was referred back to the ‘Nephrology’ Department with advice to clean daily the gangrenous wounds of the Rt. foot and use  Betadine  ointment. It was alleged that, at the initial stage of gangrene both the departments did not take proper care  . On 20.02.2013 he approached department of ‘CVTS’ but the doctors there also took it  casually and prescribed medicines only. Also he took hyperbaric oxygen session at Fortis but gangrene was not healed due to alleged delay in treatment of SGPGI. Consequently, on 20.03.2013 amputation of toes was done and discharged on 30.03.2013. Thereafter, on 03.04.2013 he was admitted to OP hospital in the Endocrine Surgery department. His lumbar sympathectomy was done on 12.04.2013 for the relief from pain. It was alleged that Endocrine department   did not adopt ‘Balloon Dilation Therapy’ available in the institute. The patient was discharged on 17.04.2013.

3.       The allegation of the Complainant was that not providing Endovascular Intervention Therapy, his Right 3^rd and 4^th toe was amputated on 31.05.2013.  On 04.12.2013 the Complainant requested Chief Secretary who was Chairman of OP to make available ‘Balloon Dilation Therapy’.  Thereafter he was admitted on 16.12.2013  for ‘Endovascular Intervention Therapy’  but doctors were unable to save his left great toe. He  further alleged  that his wife donated kidney for him , became a patient of Chronic Kidney Disease (CKD) and type-2 DM. Due to  unbearable hardship, she  got her treatment at Shekhar Hospital, Lucknow.

4.       Being aggrieved due to alleged medical negligence and deficiency in service from the SGPGIMA  , the Complainant filed Consumer Complaint No. 07/2015 before State Consumer Dispute Redressal Commission, U.P. (for short, the ‘State Commission’) to claim compensation of Rs. 99,98,800/-.

5.       The Opposite Party did not file written statement, therefore proceeded against ex-parte.

6.       The State Commission decided the Complaint after obtaining an expert report from King George Medical University (KGMU), Lucknow. It  relied upon the decision of Hon’ble Supreme Court in the case of Savita Garg Vs. The Director, National Heart Institute^[1] and   partly allowed the complaint. The OP was directed to pay Rs. 24,50,000/- and  Rs. 10,000/- as cost of litigation to the Complainant. The relevant observation of State Commission is reproduced as below:

“Complainant has made several allegations to show deficiency in treatment given by Institute. But has failed to produced any expert opinion regarding deficiency in treatment given by the institute. On the other hand, the expert opinion received from King George medical University, Lucknow did not support version of Complainant”. Thus, it cannot be said that the complete renal failure suffered by Complainant on 24.11.2010 and cardiac problem faced by Complainant on 03.03.2011 are the result of alleged medical negligence of Institute of Opposite Party. Principle of res ipsa loquitur is not applicable on Issues No. 1 & 2. Therefore, issues no. 1 & 2 are decided in negative against Complainant.

2. Institute of Opposite Party has committed negligence and deficiency in providing treatment and medical services to Complainant during the period extending from 26.12.2012 to 20.02.2013 and thereafter. Had the institute of OP acted carefully and properly in providing treatment to Complainant at initial stage on 26.12.2012 amputation might have been avoided”

7.       Being aggrieved the SGPGIMS - Appellant-OP filed the instant Appeal.

8.       Heard the learned Counsel on both the sides. Perused the material on record and we gave our thoughtful consideration to the arguments.

9.       The State Commission, while deciding the Complaint, framed 5 issues. The issue no. 1 was about renal failure on 24.11.2010 and the issue no. 2 was about the cardiac problem occurred on 03.03.2011. The State Commission held those points against the Complainant, however the Complainant did not challenge the findings by filing any Appeal, therefore issues 1 and 2  attained finality.

10.     The Appellant (SGPGIMS) challenged the order passed by the State Commission on issue nos. 3 and 4. The issue no. 3 relates to the alleged deficiency in the treatment during 26.12.2012 to 20.02.2013 and issue no. 4   the amputation of toes due to negligence of OP.

11.     Let us discuss the Issue No. 3. The main grouse of the Complainant was that, he noticed eruptions on his both legs which  was suggestive of  early stage of gangrene. He attended the OPD of CVTS dept.  on 26.12.2012 but the doctors did not  provide the ‘balloon dilation therapy’. It would be beneficial to get adequate blood supply to both the feet and gangrene could be avoided. Instead of that, he was immediately referred to the Department of Endocrine for daily cleaning the gangrene wound and to maintain hygiene by use of Betadine ointment.  He was also advised Doppler test and a review after 15 days. The Complainant visited the OPD of CVTS at SGPGI only on 20.02.2013.

12.     The issue no. 4 relates to the allegation of complainant that the amputation of toes. He was admitted in the Endocrine Department of  SGPGI from 03.04.2013 till 17.04.2013 and again from 07.05.2013 to 31.05.2013. The doctors did not do ‘endo-vascular intervention’ or ‘balloon dilation therapy’ though the facility was available at SGPGI. The amputation could have avoided. However, only after his representation made to the Chief Secretary on 04.12.2013, ‘endo-vascular intervention’ was done for  him on 16.12.2013.  

13.     On careful perusal of record, admittedly the patient was known diabetic since 7 years and on Insulin therapy for 4 years. He was hypertensive also. The chronology of treatment, clearly shows that since June, 2007 to December, 2013, the Complainant had underwent several surgical procedures like coronary angiography, angioplasty, coronary artery bypass grafting (CABG) and haemodialysis. He underwent Renal transplant on 25.07.2011, from a kidney donated by his wife. The renal transplant was done after detailed family counselling for high risks. The written and video graphic informed consent was taken from the donor and recipient. He was discharged on 30.10.2011. At the time of discharge, his blood urea was 36.7 mg% and serum creatinine 1.05 mg% (normal). Subsequently the patient was managed by Department of Urology, however he developed diabetic nephropathy. It is known that about 50% of the diabetic patients would develop gangrene with associated peripheral vascular disease. 

14.     Now, adverting to the observation of the State Commission that

“Had the institute of OP acted carefully and properly in providing treatment to Complainant at initial stage on 26.12.2012 amputation might have been avoided”

15.     The State Commission sought an expert opinion from KGMU, Lucknow. It is pertinent to note that the board consists of doctors from various departments viz. CTVS, Cardiology, Endocrinology, Ophthalmology, Neurology, Nephrology and Urology. The expert medical board held that there was no negligence in the treatment of G.K.Raghuvanshi (Patient).

16.     We have carefully perused the details of treatment from 26.12.2012 onwards.  The patient came to the transplant Nephrology OPD for follow up on 26.12.2012 with history of pain and blackish discoloration of the 1st, 2nd, 3rd toes of the right foot for few days. Since it was gangrenous lesion (diabetic foot) the patient was promptly referred to the department of endocrine surgery which deals with such problems for management of his new problem. The diabetic patients are prone to develop diabetic foot  because of compromised blood supply to the periphery  and also infections because of immune compromised state. As the patient was on immunosuppressive agents for his new transplanted kidney. Therefore, the department of Nephrology has no role in the treatment of gangrene. Thus, any  specific treatment for the diabetic foot lesions was not advised by the department of Nephrology as it has  neither the knowledge nor the expertise to deal with such problem, thus he was referred to the concerned endocrine surgery department.  The patient was kept under follow up with Nephrology for transplanted kidney.  

17.  It is pertinent to note that  the patient was  admitted in Urology ward on 16.12.2013 for balloon dilatation of left lower limb vessels. He underwent the procedure on 21.12.2013 by the department of radiology. After the procedure his  Sr. Creatinin was normal-1.03mg% and he was discharged 26.12.2013. Therefore, we do not find any negligence of the department of Nephrology. The doctors have treated the patient with due diligence whenever he attended OPD or whenever he was admitted under any specialty at SGPGIMS.

18. The management of diabetic foot due to arterial blockage is usually because of multilevel diffuse peripheral vascular disease. If the disease is amenable to bypass / angioplasty, then it is done to prevent major amputation. Many patients with diabetic foot have long standing vascular problem which is not amenable to bypass or angioplasty as was the case in this patient.

19.     Admittedly the  patient was suffering from multi organ complications of long standing diabetes. He had already undergone CABG followed by coronary angioplasty; chronic renal failure on dialysis; failed AV fistula; and renal transplant. In Endocrine Surgery, he presented in December 2012 first time with gangrene of toes in Rt foot and then in CVTS in Feb 2013. It was noted that he has diffuse disease, not amenable to bypass / angioplasty as evident from Doppler report from Fortis. He was kept on conservative treatment. He presented again with left foot problem, and also given Hyperbaric Oxygen therapy and done lumber sympathectomy as a part of conservative management.

20. In our country in hospitals like SGPGIMS minor administrative lapses do occur during arranging to call for the doctors on duty in their respective wards, who might be attending other patients. In our view, the instant patient was taking consultation and treatment since 2007 for various health problems. Every time he was attended without any lapses. The DIbetic Foot was not due to any wrong treatment or any negligence from the doctors at SGPGIMS. He was attended by the residents on duty as qualified physician. The patient was suffering from multiple ailments. The gangrene developed in the toes was not due to any negligence or failure of duty of care from the SGPGI. It was due to the long standing diabetes and the atherosclerotic changes in the blood vessels. In our view the patient care was as multi-disciplinary approach at SGPGIMS as per the standard protocol. It was an accepted standard of practice.  It can’t be the deficiency in services.

21. No doubt, every patient expects complete cure, but in certain cases complete cure depends upon several inherent factors. Moreover, no cure is not negligence. The Hon’ble Supreme Court in catena of judgments held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.

22.  In the recent judgment in the case Chanda Rani Akhouri vs M.S.Methusethupathi Mithupathi[2], the Hon’ble bench of Supreme Court  said that it clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches to treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical professional. The bench said that the treating doctors, all were academically sound and experts in the field of nephrology, kidney transplantation and surgery.   In another  judgment in Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors.^[3], Hon’ble Supreme Court held that the allegations need to be proved with cogent evidence.

23.     We can’t brush aside that the SGPGIMS is one of the reputed post graduate institutes having best medical experts in their relevant field and giving their services. Thus, no doctor will gain any thing by doing something wrong. The doctors will not be able to serve the patients with their dedication if the halter is on their neck.

24.     In our considered view, the instant case was filed based on just surmises and presumptions with lack of medical acumen.  The State Commission erred in holding the OP was liable for the gangrene and amputation of toes due to medical negligence. The Order of State Commission is not sustainable, same is set aside.  The Complainant failed to prove negligence of the doctors working at SGPGIMS.   

25.     The instant Appeal is allowed. Consequently, the Consumer Complaint filed before the State Commission is dismissed. The parties are directed to bear their own costs.