| PER MR. JUSTICE R.K. BATTA This complaint has been filed by the wife of the deceased Sankar Rajan and Hindustan Thompson Associates Ltd. where Sankar Rajan was working. The deceased was 37 years old and was admitted in Indraprastha Apollo Hospital, Delhi- Opposite Party no.1 for treatment of birth defect called Chiari Malformation (Type II) with Hydrocephalous. Dr. Ravi Bhatia pposite Party no.2, Senior Consultant, Department of Neuro-Surgery had conducted the operation, in question. From June, 1998 the deceased had developed additional problems including episodic spells of giddiness and vertigo with pain at the nape of the neck, headaches, profuse sweating during these attacks , loss of balance and coordination, difficulty in swallowing, nausea with vomiting. MRI of the cervical spine and brain revealed that the deceased was suffering from Chiari Malformation Type-II which is a birth defect. The same could only be treated through neuro surgery. The deceased was admitted for surgery on 30.10.1998 and after four hours of surgery, he was shifted to private room. The grievance of the Complainant is that the deceased should have been kept in intensive care unit after major surgery where proper monitoring and observation could be done. The deceased was shifted to private room at about 4.15 p.m. and at about 4.30 p.m. Dr. Brahm Prakash and Dr. S. Tyagi visited the room and the deceased informed them about pain in the neck region which seemed to have transferred downward lower than the region where pain used to occur prior to operation. According to the Complainant no doctor from neuro surgery team other than doctor on duty checked the deceased thereafter. At about 6.30 p.m. deceased was given pain reliever intravenously but the pain increased alongwith severe sweat spells. The nurse located doctor on duty who came and saw the patient but did not give any further treatment. The deceased was thereafter given pain killer tablet imulid. The wife of the deceased, namely, Complainant no.1 requested the nurse on duty to call Dr. Tyagi and around 8.50 p.m. Dr. Tyagi called up on telephone and he was informed about symptoms and problem of sweating, pain and dizzy spells. According to Dr. Tyagi, symptoms were normal post operative reactions. Dr. Tyagi also talked to the patient on telephone. At about 9.15 p.m. deceased started suffering from severe unbearable pain. Complainant no.1 called Dr. Bhatia at his residential phone but he was not available and a message was left to call back urgently. The mobile of Dr. Ravi Bhatia was not responding. At about 9.30 p.m. another pain killer was intravenously given. At about 11.00 p.m. patient gasped and he became unconscious. At about 11.19 p.m. Complainant no.1 talked to Dr. Bhatia at his residence. The deceased had suffered heart attack around 11.00 p.m. He had not past history of any heart ailment. According to the Complainant, the deceased should have been shifted to ICU after major operation and there was grave negligence and lack of proper medical care after the patient was shifted into the room. The deceased was declared brain dead on 31.10.1998. He was kept on life support till his death on 5.11.1998. His vital organs were donated by the wife of the deceased for the benefits of those in need of the same. The deceased Sankar Rajan was stated to be Vice-President and Clients Services Director. He was one of the 12 Vice-Presidents in the Company across India. On account of loss of salary and other benefits, compensation of Rs.2,34,00,000/- has been claimed. The company Complainant no.2 also claimed pecuniary loss on account of death of Sankar Rajan and the loss was quantified at Rs.1 crore. The Opposite Party Hospital in its reply claimed that the hospital is a very well known hospital of good reputation and provides for the best and latest medical equipments for giving good and effective treatment to its patients and for diagnosis of the ailment. The details of pre-operative history of the patient have been given . The surgery was performed by Dr. Ravi Bhatia of national and international repute who was formerly Professor and Head of the Department, Neuro-Surgery at AIIMS. He was assisted by Dr. Brahm Prakash renowned senior neuro surgeon. After successful surgery, patient was moved to recovery room and thereafter to the private room on advice of the concerned doctors. It has been submitted that Dr. Bhatia is not an employee of the hospital and the hospital can have no vicarious liability for inaction or alleged negligence on his part. The patient had made excellent recovery and there was no post operative complications on account of which the patient was shifted from recovery room to private room. Accordingly, it was not necessary to keep him in the intensive care unit. While the patient was in his room he was examined by the doctors on duty, besides Dr. Brahm Prakash who had seen the patient at about 5 p.m. The treatment for pain was given under the advice given by Dr. S. Tyagi who spoke to the patient. The patient was attended at about 11.10 p.m. by Dr. Ravi Bhatia. All measures were taken which are necessary in case of cardiac arrest, but patient was declared brain dead on 1.11.1998 and was continued on life support for five days which was removed with the consent of Complainant no.1 According to the hospital, there has been no negligence on the part of the treating doctors and the complaint is liable to be dismissed. Dr. Ravi Bhatia Opposite Party no.2 in his reply has raised preliminary objection to the effect that Complainant no.2 Hindustan Thompson Associates Ltd. is neither consumer nor has any locus standi to file the complaint. It is submitted that the complaint is result of after thought since at the relevant time Complainant no.1 had no complaint whatsoever. Dr. Ravi Bhatia has given details of his academic carrier, training, fellowship received and research undertaken by him. According to him, he has been performing neurosurgery operations since 1999 and has performed several thousand such operations. He has given details of admission, pre-operative check ups and evaluation. According to him, deceased was operated between 9.15 a.m. to 1.30 p.m. by him with the able assistance of Dr. Brahm Prakash, former Professor of Neuro Surgery and Senior Consultant Neuro Surgeon Dr. Tyagi. When the deceased was taken to recovery room at 1.20p.m. he regained full conscious. He did not show any signs of post operative complications requiring him to be kept in intensive care unit. Therefore, it was decided to shift him to private room and at that stage deceased was neurological well and he had no symptoms of cardio vascular dysfunction. He has given the detail of visits by doctors as per hospital record. The deceased was seen by Dr. Brahm Prakash and no complaint was made by the deceased. The deceased also did not make any complaint when Dr. Tyagi saw the deceased in the private room and except for mild neck pain which is normal after operation of cervical (neck region). He did not make any other complaint. Accordingly, he left the hospital by about 5.30 p.m.. At 6.00 p.m. he was given injection for pain after he had complained of pain the neck region by doctor on duty at 7.15 p.m. The deceased was again seen by duty doctor and upon advice of Dr. S. Tyagi, the patient was advised to be given tablet Nimulid. At 9.00 p.m. the patient complained of pain and the sister on duty informed Dr. Tyagi who spoke to the patient and complainant no.1 on phone. The patient informed him that he was better. At about 11.00 p.m. the patient suddenly lost consciousness. Blood pressure was unrecordable. He was immediately resuscitated by duty doctor, Medical Registrar, Anaesthesia Registrar on duty and neuro surgery doctor on duty. Dr. Ravi Bhatia received a call at 11.15 p.m. and immediately came to the hospital and patient was shifted to ICU at 11.45 p.m. Thereafter all necessary steps were taken. The deceased was declared brain dead on 31.10.1998 and he was declared dead on 5.11.1998. According to Dr. Bhatia, the operation was successful and there were no post operative complications. The patient did not have any history of heart ailment and he did not require constant monitoring on account of which it was not necessary to keep him in the ICU. Dr. Bhatia has denied any kind of negligence on his part and has prayed for dismissal of the complaint. The complainant no.1 has filed evidence and rejoinder to the reply of Opposite Party no.1 and 2. Complainant no.1 has submitted that the case is covered by the principle of Res Ipsa Locutor. Affidavits of evidence have been filed by Complainants nos.1 and 2. Affidavits of evidence have been filed on behalf of Opposite Party No.1. Affidavit evidence has also been filed by Dr. Ravi Bhatia, Professor Gulshan Kumar Ahuja, Senior Consultant of Neurology Department of Opposite Party NO.1 hospital and Dr. S. Tyagi who was part of the operating team. Interrogatories were served by the Complainant on Dr. Ravi Bhatia, Dr. Tyagi and Dr. Gulshan Kumar Ahuja. Written arguments have been filed by the Complainants as well as Opposite Parties nos.1 &2. The Counsel appearing on their behalf were orally heard. The Opposite Parties have raised preliminary objection that Complainant no.2 has no locus standi and it is not a consumer. In our opinion, the objection raised by the Opposite Party is well founded since we find that Complainant no.2 is neither a consumer nor has locus standi to file the complaint. The Opposite Parties have also urged that since no medical evidence by an expert has been placed by Complainant No.1 on record, the complaint relating to medical negligence is liable to be dismissed in terms of judgement of the Apex Court in Martin F. Douza V/s. Mohd. Ishfaq (2009) 3 SCC 1. In this respect Counsel for the Complainant has filed the judgement of the Apex Court in the case of V. Krishna Rao V/s. Nikhil Super Specialilty Hospital 2010 (4) SCALE 662. In this judgement the Apex Court has held that general directions given in para 106 in the case of Martin Douza cannot be treated as binding precedent and those directions must be confined to the particular facts of the case. It is further pointed out that questions relating to medical negligence are to be judged on the facts of each case and there cannot be a mechanical or straight jacket approach that each and every case must be referred to experts for evidence. In view of this, the objection raised by the Opposite Parties that the complaint is liable to be rejected since no medical evidence of expert has been adduced by the Complainant is without any merit. The main grievance of the Complainant no.1 is that no proper post operative medical care was provided to the patient after he was shifted to the private room at about 4 p.m. till 11 p.m. when he suffered heart attack which amounts to medical negligence. Learned Counsel for the Complainant has laid special emphasis on the crucial hours between 4.00 p.m. to 11.45 p.m. on 30.10.1998. There is no allegation of medical negligence in so far as the operation in question is concerned. The grievance of the Complainant No.1 is that the patient was shifted from the recovery room to the private room instead of intensive care unit. The case put forward by Opposite Parties is that operation was successful and there was no post operative complications which would require keeping the patient in intensive care unit. After the operation the deceased had fully recovered and since there was no post operative complications, the decision was taken to shift the patient from recovery room to the private room. Admittedly, the patient had no history of any heart problem. In this view of the matter, the decision by the doctors including Dr. Ravi Bhatia to shift the patient form recovery room to private room cannot be faulted with and in the circumstances, it was not necessary to keep the patient in ICU. The grievance of Complainant No.1 is that the deceased was not attended to by any doctor from neurosurgery team who had operated the deceased after he was shifted into the private room till 11 p.m. when he suffered cardiac arrest. The record maintained by the hospital shows that the patient was examined by Dr. Brahm Prakash as well as by Dr. Ravi Bhatia and Dr. Tyagi, who was part of the operative team, after the patient was shifted to the private room. The patient had complained of pain in the neck region to Dr. Ravi Bhatia and he was told that it was on account of the operation. Complainant no.1 in her evidence has stated that the pain the neck region started increasing at 6.00 p.m. Injection for pain was given at 7.15 p.m. Dr. Tyagi was contacted by doctor on duty and he told him that tablet Nimulid be given after the patient eats. According to the complainant, the patient had severe sweating spells. It may be mentioned here that the Complainant has stated in paragraph of the complaint that her husband had developed additional problems from end of June, 1998 which included profuse sweating during attacks. The medical records which have been filed do not show that patient had ever complained of pain in any other part of his body except neck pain. The Complainant had stated in her evidence in para-15 that on her request, the nurse on duty called Dr. S. Tyagi at around 8.15 p.m.. Dr. Tyagi called on phone and the Complainant no.1 informed him about symptoms as well as problem of sweating pain and dizziness. Dr. Tyagi informed her that symptoms were normal post operative reactions. Complainant no.1 has stated that no doctor from operating neurosurgery team actually visited or checked her late husband. In this respect, Dr. Tyagi in his affidavit has stated that the patient had complained of only mild neck pain for which treatment was given. He has also stated that when he talked to the patient, the patient had informed him that he was better. At 9.30 p.m. pain killer was given. At 11.00 p.m. the patient loss consciousness and had cardiac arrest. Dr. Ravi Bhatia was informed. He immediately came to the hospital. Thereafter all measures were taken which can be seen from the hospital record. The allegation in the complaint is mainly relating to lack of medical care after the patient was shifted into the private room till 11.00 p.m. when he suffered cardiac arrest. In fact, the complainant has not been able to establish by any cogent evidence or material on record that heart attack suffered by the patient had any connection with the operation in question or it was due to lack of post operative care. The opposite party has filed affidavit of Prof. Gulshan Kumar Ahuja who was professor of neuro surgery in AIIMS and Senior Consultant in Neurology at Opposite Party no.1 Hospital who after going through the record and CT Scan dated 4.11.1998 which did not show any abnormality at the operated side opined that complications suffered by patient Sankar Rajan were totally unrelated to the surgery conducted by Dr. Ravi Bhatia. In answer to the interrogatories served on Dr. Gulshan Kumar Ahuja, he has stated that pain in t he neck accompanied by symptoms of profuse sweating and nausea cannot be a symptom of cardio respiratory arrest. This answer has been given in the contest of treatment of the deceased. Dr. Tyagi has also stated likewise in reply to interrogatory question no.21. In this case there is nothing in medical record to show that the deceased had nausea or pain other than in neck after he was shifted to the room at 4 p.m. till he became unconscious at 11 p.m. According to the Learned Counsel for the Complainant high standard of post operative care was expected from Opposite Party no.1-Hosptial who claimed that hospital provides high standard care to patients. In this connection, reliance is also placed on judgements. We have already pointed out that Dr. Brahm Prakash, Dr. Ravi Bhatia and Dr. Tyagi who were part of the operative team have examined the patient after he was shifted to the private room. The patient did not have any history of diabetes or hypertension as has been stated by Dr. Ravi Bhatia in his evidence. Admittedly, the patent did not have any history of heart problem. The pain in the neck which was complained was normal on account of operation of cervical (neck region). There is no material on record to show that the patient had pain in any other region of his body except neck. The duty doctor twice consulted Dr. Tyagi at home who did prescribe treatment for pain in the neck. According to the Complainant, the patient was sweating but the medical record does not support the contention of the Complainant except for sweating once at 9 p.m. which was informed by duty doctor to Dr. Tyagi who spoke on phone to deceased. Besides, all through out duty doctors/Registrar attended the patient. Learned Counsel for the Complainant has drawn our attention to the observation made in Martin F. Douza V/s. Mohd. Isfaq (supra) that no prescription should ordinarily be given without actual examination and the tendency to give prescription over the phone except in acute emergency should be avoided. These observations would not be strictly applicable to the case under consideration, since the patient had been operated on neck and he complained of neck pain for which Dr. Tyagi had asked duty doctor to give medicine imulidover the phone. In the facts and circumstances of the case, we find that no case of medical negligence has been proved nor it can be said that after care treatment of the deceased after he was shifted into the room till he suffered heart cardiac arrest was inadequate so as to hold opposite parties liable for medical negligence. The principle of Res Ipsa Locutor on which reliance has been placed by Complainant no.1 in rejoinder cannot be applied to the facts and circumstances of the case. For the aforesaid reasons, we are of the opinion that the complainants have failed to make out a case of medical negligence as against the Opposite Parties. In view of this, the complaint is dismissed with no order as to costs. | |
