BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION :HYDERABAD
F.A.No.1728/2007 against C.C.No.91/2006, Dist. Forum-II,Hyderabad.
Between:
1.Nizam Institute of Medical Sciences (NIMS)
Rep by its Hospital Superintendent,
Panjagutta, Hyderabad.
2. The Executive Registrar,
NIMS Hospital, Panjagutta, Hyderabad.
3. Dr.B.K.Dubey, Cardiologist of NIMS Hospital,
Panjagutta, Hyderabad. … Appellants/
Opp.parties 1 to 3
And
1.Smt. K.Gunnamma, W/o.late K.Basaiah,
Aged about 50 yrs. Occ:House hold,
2. K.Srinivas Goud, S/o.Late K.Basaiah,
Aged about 30 yrs., Occu: Business
3. K.Chandrasekhar Goud, S/o.Late Basaiah
Aged 20 yrs., Occ:Business
All are R/o.Gaddi Singaram (v) Pargi (m)
R.R. District. …Respondents/
Complainants
4.The New India Assurance Co.Ltd.,
4th floor, rep. by its Branch Manager,
Kautila Amrutha Estates , Somajiguda,
Hyderabad – 82 …Respondent/
Opp.party no.4
Counsel for the Appellants : M/s.S.S.Bhatt
Counsel for the Respondents : Mr.T.Paripurna Chary-R1 to R3
Ms.S.N.Padmni-R4
CORAM:HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
AND
SMT. M.SHREESHA, HON’BLE MEMBER
MONDAY, THE THIRTY FIRST DAY OF MAY,
TWO THOUSAND TEN.
Oral Order :(Per Smt. M.Shreesha, Hon’ble Member)
****
Aggrieved by the order in C.C.No.91/2006 on the file of Dist. Forum-II, Hyderabad , the opposite parties 1 to 3 preferred this appeal.
The brief facts as set out in the complaint are that the 1st complainant is the wife and 2nd and 3rd complainants are sons of the deceased K.Basaiah who used to do toddy business and the complainants are totally dependents upon him. The said K.Basaiah was suffering with reeling sensation, chest pain, vomitings and breathing problem on 14.3.2004 and he was admitted in a private hospital at Pargi and later he was shifted to NIMS , Hyderabad where he was admitted as inpatient on 19.3.2004 vide I.P.No.40304349 and various tests were conducted including X-ray, angiogram and the doctors advised him that he required the implantation of Medtronic (VVI ) pacemaker as a life saving measure, the approximate cost of which is Rs.71,000/-. The complainants paid the said sum and later the patient was discharged and advised to come after one week for conducting of said treatment. The said Basaiah was discharged on 29.3.2004 inspite of repeated requests and demands made by the complainants for better treatment without observing the health condition of patient due to which some complications arose and he was again admitted as in patient. Due to the willful negligence and delay in diagnosing the disease and not giving proper treatment for the disease the patient’s condition became worse and he died on 9.4.2004 in NIMS. The complainants made several requests for issue of case sheet and other medical records of the deceased but the opposite party intentionally dragged on the matter on one pretext or the other. Complainant no.1 got issued a legal notice to the opposite party by registered post on 20.6.2005 to provide case sheet and medical reports and the same was received by the opposite party and they replied on 2.7.2005 denying all the material facts. Hence the complaint seeking direction to the opposite parties to pay Rs.3 lakhs towards compensation and medical expenses and to pay costs of the complaint.
Opposite party no.1 filed counter affidavit stating that Sec.3(4) of the NIMS Act enacted under Act 13/989 provides for suing or to be sued by the Executive Registrar only and on this ground alone the complaint is liable to be dismissed in limini. Opposite party submits that the complaint is liable to be dismissed for non joinder of proper parties to the complaint and also liable to be dismissed for not impleading the doctors concerned to the complaint. The opposite party submits that the probable cause of death was serious ventricular arrhythmia which lead to sudden cardiac death. Opposite party submits that they have not deviated from any standard or approved medical practice in advising the patient in question and there is no deficiency in service or willful negligence at any point of time. Opposite party no.1 prays for dismissal of the complaint .
Opposite partyno.4 filed counter affidavit denying the allegation of the complainants that they are the legal heirs of late Basaiah and they are put to strict proof of the same. Opposite party submits that it is false to state that the opposite party no.1 hospital had discharged the deceased without rendering the necessary treatment. The opposite party no.1 hospital had admitted the deceased for treatment without making payment for pace maker on 1.4.2004 who finally expired on 9.4.2004 for heart failure due to complete heart block. It is false to state that the opposite party hospital denied issuance of case sheet and medical records to the complainants and in reply to the legal notice of the complainant dt.20.6.2005 Medical Records Dept of the opp.party no.1 institute informed the counsel for the complainant by letter dt.2.7.2005 that they can obtain the Xerox copies of the case sheet from their department by payment of the prescribed fee. The opposite party submits that there is no consumer relation between the opposite party hospital and the deceased as the complainants have not paid any amount towards the treatment cost. The complainants are not having any kind of locus standi against the 4th opposite party insurance company and the insurance company is no way connected with the alleged medical negligence said to be committed by opposite party no.1. Opposite party no.4 submits that there is Medical Establishments Professional Negligence Errors and Omissions Insurance Policy between them and opposite party no.1 and that does not give the right to the outsiders who are seeking compensation and damages to implead the insurance company as necessary party and the insurance company is liable only to reimburse the compensation/damages amount paid by NIMS in any proceedings subject to the compliance of other conditions of policy and if NIMS was ordered to pay the compensation in professional medical negligence case, NIMS has to comply the award on its own and seek reimbursement from the insurance company as per the terms and conditions of the policy. Opposite party no.4 submits that the State Commission also gave the same finding in C.D.No.91/2000 in its judgment dated 31.8.2004 . The opposite party no.4 prays for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.1 to A17 and pleadings put forward the District Forum allowed the complaint party directing the opposite parties 1 to 3 jointly and severally to pay compensation of Rs.75,000/- and costs of Rs.1000/- to the complainants. The complaint against opposite party no.4 is dismissed and opposite parties 1 to 3 are entitled to seek reimbursement of the compensation from opp.party no.4 as per the policy terms and conditions.
The learned counsel for the appellants/opp.parties contended that the complainant’s husband took treatment at different hospitals before approaching NIMs and none of them were impeladed as parties to the proceedings and that the deceased died due to sudden cardiac arrest. He further contended that the deceased was implanted with permanent pacemaker on 6.4.2004 and that the patient was well from 7th to 9th April 2004 and thereafter as he had complete heart blocks with good LV systolic functions and ECG showed ventricular tachycardia and later ventricular fibrillation and consequently he died. Opposite parties submit that it is a very rare complication of cardiac procedure and even timely efforts could not save him, hence there is no negligence on their behalf.
The brief point that falls for consideration is whether there is any negligence on behalf of the opposite parties 1 to 3?
We have perused the material on record. The first complainant is wife and the second and third complainants are sons of the deceased K.Basaiah. It is the complainant’s case that the said K.Basaiah was suffering with reeling sensation, chest pain, vomitings and breathing problem as on 14.3.2004 at about 6.30 a.m. and he was admitted in a private hospital and thereafter on advice of doctors shifted to NIMS i.e. opposite party no.1 hospital and admitted as inpatient on 19.3.2004 and various tests were conducted including X-ray, Angiogram and doctors advised him that he required implantation of Medtronic ((VVI) pacemaker which costs Rs.71,000/-. It is the complainants’ case that they paid to opposite party no.1 entire amount and they were asked to come after one week for the said treatment and the patient was discharged on 29.3.2004 and again admitted on the same day due to complications and thereafter died only because of the negligence and delay in diagnosing the disease and in not arranging immediately for the pace maker inspite taking money from the complainants. They got issued a legal notice on 20.6.2005 calling upon NIMS to provide the medical records for which opposite party no.1 gave an evasive reply. It is the opposite parties case that the deceased Basaiah was advised implantation of permanent pacemaker which costs about Rs.62,000/- and the complainant paid total amount of Rs.50,000/- in three instalments. The permanent pacemaker implantation was done on 6.4.2004 and he was well from 7th to 9th April until 3.30 p.m. and he died at 4.15 p.m. on 9.4.2004 . The inpatient medical record filed before this Commission shows the clinical summary. We observe from the record that this informed consent for permanent pace maker implantation has been attested by thumb impression whereas the informed consent for Cardiac Catheterization has been singed as ‘Basaiah’. We rely on the judgement of Apex Court in in Samira Kohli Vs. Dr. Prabha Manchanda & Another reported in (2008) 2 SCC 1 (Informed consent) wherein it is held 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 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 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 unauthorized 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 unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.
From the afore mentioned judgement it is clear that the doctor should clearly inform the prognosis and risk and each procedure specially when it is risky to the patient when the patient is coherent the patient himself should sign the consent form.
In the instant case there is a thumb impression on the informed consent for permanent pacemaker implantation and in other form of consent for Cardiac Catheterization there is a signature by name K.Basaiah and relationship to the patient is stated as son whereas
the cause title shows the name of the sons as K.Srinvas Goud and Chandrasekhar Goud. Therefore we are of the considered view that informed consent for permanent pacemaker implantation from the deceased is not taken as per the mandatory procedure. We also observe from the record that this informed consent for permanent pacemaker implantation has not been signed by the doctor and the date is also left blank. The progress record shows that the patient was posted for PPI on 6.4.04 and the progress notes thereafter shows that the patient was comfortable and at 3.45 p.m. on 9.4.2004 the patient suddenly collapsed and died at 4.15 p.m. Opposite parties did not choose to file any medical literature in support of their case that the patient died of rare complication of cardiac procedure except baldly stating so in the appeal grounds. When they themselves admit that the patient is poor and that a pace maker implantation is necessary, the appellants/opp.parties ought to have explained clearly the prognosis along with the complicated risks involved at the time of taking the informed consent . To reiterate, the signature of the doctor is absent on the consent nor is it dated. There is a thumb impression without any name and it is not known as to who has attested the informed consent for pacemaker implantation. The contention of the opposite parties the Executive Registrar is not made a party is unsustainable and in the light of a judgement of Apex Court in (2004) 8 SUPREME COURT CASES 56 in SAVITA GARG (SMT) v. DIRECTOR, NATIONAL HEART INSTITUTE wherein it is held as follows:
‘when a prima facie case is established, it is the duty of the opposite parties to prove their case, since it is only the opposite parties who are aware of the exact line of treatment that has been given to the patient. It was also held by the Apex Court that once a claim petition is filed and the complainant has successfully discharged the initial burden that the hospital/clinic/doctor was negligent and that as a result of such negligence, the patient died, then in that case, the burden lies on the hospital and the doctor concerned, who treated the patient, to show that there was no negligence involved in the treatment.
From the above said judgement it is clear that when the complainant has a prima-facie case, the burden of proof shifts on the hospital to establish that the line of treatment given by them is as per the standards of medical parlance and it is their duty to bring forward the doctors who have assisted in the treatment of patient and therefore non joinder of any party cannot be a reason for dismissal of a complaint with respect to medical negligence. In the instant case except stating that it is a rare complication in their grounds of appeal the appellants did not have filed any documentary evidence in support of their contention. The records also did not show whether the prognosis and these rare complications were explained to the patient prior to the procedure. Keeping in view the afore mentioned judgement and the material on record we are of the considered view that there is negligence on behalf of the appellants in not procuring the proper informed consent i.e. not explaining the prognosis to the patient properly and also in not filing any documentary evidence in support of their contention that the patient died due to rare complications arisen out of implantation of pacemaker. Fo r the reasons afore mentioned we see no reason to interfere with the well considered order of the District Forum .
In the result , this appeal fails and is accordingly dismissed. No costs.
PRESIDENT
MEMBER
Dt.31.5.2010
Pm*
