Haryana

Karnal

CC/136/2018

Surinder Kumar - Complainant(s)

Versus

Miglani Nursing Home - Opp.Party(s)

Mohinder Singh Mann

27 Jul 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

             

                                                Complaint no. 136 of 2018      

                                                 Date of Institution: 01.06.2018

                                                Date of Decision : 27.07.2021

 

1. Surinder Kumar, aged 43 years son of Ram Kumar, 
2. Vandana, aged 20 years (Now Major) Daughter of Sh. Surinder Kumar, 
3. Radhika minor daughter of Sh. Surinder Kumar (minors complainant No.3 through their father and natural guardian complainant no.1 who has got no adverse interest to that of minor, all resident of House No.81, Moti Nagar, Karnal.

 

                     ……Complainants.

 

                                Versus

 

1. Miglani Nursing Home, Kunjpura Road, Karnal. 
2. O.P. Miglani, Miglani Nursing Home, Kunjpura Road, Karnal through its Prop/ Director. 
3. The New India Assurance Co. Ltd. Branch Office, G.T. Road, Karnal (insurer of Policy Schedule for professionals indemnity insurance for doctor/ op no.2.)
4. Dr. Kamal Charyana, Shri Ram Chand Memorial Hospital Pvt., 12 Ashoka Colony, Near Police Lines, Karnal.
5. The Oriental Insurance Company Ltd. (Insurer of OP no.4 vide Policy of Professional Indemnity- Doctor Policy Schedule- vide policy No.272200/48/2018/1406 now declared by Op No.4 (Dr. Kamal Charaya). 
6. Pt. Ram Parkash Hospital, Kidney Centre & Blood Bank, Civil Hospital Road, Karnal.
7. Pathologist, Pt. Ram Parkash Hospital, Kidney Centre & Blood Bank, Civil Hospital road, Karnal. 

                                                                        ...…Opposite parties.

 

Complaint Under section 12 of the Consumer Protection Act, 1986 as amended Under Section 35 of Consumer Protection Act, 2019.

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

 

 Argued by: Sh. Mahinder Singh, Advocate for complainant.

    Sh. G.P. Singh Adv. for opposite parties no.1, 2 & 4.

    Sh. Parveen Daryal, Adv. for opposite party no.3.

    Sh. Kiran Singh Adv.for Opposite party no.5.

    Sh. Rajesh Mani, Adv. for opposite parties no.6 & 7. 

 

                    (Jaswant Singh President)

ORDER:   

                The complainant no.1 who is husband, complainant no.2 daughter (who was minor at the time of filing of present complaint) and complainant no.3 who is minor daughter of deceased Smt. Sunita have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment under Section 35 of the Consumer Protection Act, 2019) against the opposite parties (hereinafter referred to as OPs) seeking compensation for the death of Smt. Sunita allegedly due to medical negligence of the OPs no.2 and 4. According to complainant no.1 present complaint has been instituted by him on his behalf as well as on behalf of his minor daughters being father and natural guardian against whom he has no adverse interest (though as per birth certificate of complainant Vandana, her date of birth is 13.1.2001 and therefore, as per their own application she has become major during the pendency of the present complaint).  

2.             The facts giving rise to the present complaint are as under:-

                That in the end of June, 2017, wife of complainant no.1 and mother of complainants no.2 and 3 namely Smt. Sunita suffered minor pain in her abdomen. She was immediately taken to the hospital of OPs no.1 and 2 for treatment. The OP no.2 told complainant no.1 that his wife was suffering from fibroid in uterus. After two visits, the OP no.2 advised him and his wife for ultrasound examination and directed them to go to Bharat X-ray and Ultrasound Clinic, Karnal. The complainant no.1 got ultrasound of his wife from above said clinic. After getting report of ultrasound on 02.07.2017, on the same day complainant no.1 alongwith his wife visited OPs no.1 and 2 in the hospital and showed ultrasound report to op no.2. After examination of the report, OP no.2 directed them to come on the next day in order to remove the fibroids by way of operation. 

3.             It is further averred that as per direction of OP no.2, complainant no.1 and his wife alongwith his mother reached the hospital on 03.07.2017 in the morning at about 10.00 a.m. and OP no.2 asked them to come again next day. On 04.07.2017, they again reached the hospital of OP no.2 and OP no.2 completed the paper formalities of admission of patient in his hospital and after taking Rs.10,000/- from him as advance towards operation fees, patient Sunita was admitted in the hospital. At about 12.00 noon, one of the nurse of OP no.2 came in the room and took the blood sample of patient in the laboratory for analysis. The doctor and nurse available in the laboratory filled a form and handed over the same to complainant no.1 and directed complainant to purchase one blood unit of A positive from Pt. Ram Parkash Hospital, Kidney Centre and Blood Bank Civil Hospital Road Karnal. The complainant no.1 purchased a blood unit from the above said hospital against payment vide receipt no.1226 dated 04.07.2017 and handed over the same to the nurse available in hospital. At about 6.00 p.m, a nurse came in the room of Sunita and directed her to come in the operation room for operation. However, despite asking, the doctor or staff of the Hospital of OP no.1 or even OP no.2 did not inform the complainant or his family members the reasons regarding necessity of conducting sudden operation. No valid consent was taken from the patient or her family members prior to conducting operation. The hospital had taken signature of complainant no.1 on some blank papers/ form, but despite promise, no copy of the same was given to him. 

4.             It is further averred that patient Sunita was taken to the operation theatre for operation and they were directed to stay outside the operation theatre. After some time, a nurse came out of the operation theatre and called complainant no.1 and his mother inside where OP no.2 was also present and patient Sunita was lying on the operation table in unconscious condition. The OP no.2 informed them that there was only one fibroid in uterus which he removed successfully. That after sometime, the patient was shifted to another room where the blood was transfused to her, however, within five minutes, a nurse came to him and informed that condition of patient all of sudden has become serious and directed them to reach ICU Room. The patient informed complainant no.1 that she was feeling more intolerable pain in her abdomen. The patient started having recurring vomiting with blood immediate after operation. The patient was shifted to ICU Room situated at ground floor of the hospital near which construction work was going on and there was no cleanliness. OP no.2 came there and without going through the critical condition of the patient after the operation and without conducting proper examination of the patient, he informed them that operation is successful, whereas patient was continuously complaining for severe pain in her abdomen to OP no.2 and OP no.2 did not take any step to cure the pain after operation. That thereafter, OP no.2 and his staff members came out of the ICU room and fled away without informing them about the health of patient. Only one attendant namely Sahil who was also an untrained person was present in the ICU Room. The patient many times complained about pain but the attendant refused to call the doctor and he gave injections and medicines/ water to her. Thereafter, till 7.30 a.m., no doctor or nurse came to inquire about the condition of patient and on the request of complainant no.1, said Sahil came in the ICU room only for two/three times. In the morning, on 05.07.2017, OP no.2 came in the ICU Room and after examining the patient, informed complainant no.1 that her condition was beyond their control and all of sudden asked to shift the patient in some other hospital. The complainant no.1 got shocked and asked the doctor to examine her carefully and complained that nobody came to look after patient for whole night. However, OP no.2 without the consent of the patient and her husband called Dr. Kamal Charya OP no.4. After 10/15 minutes, OP no.4 alongwith two attendants came in the ICU room and forcibly without their consent and without informing the status of the health of patient, took away on stature in the ambulance and shifted to Shri Ram Chand Memorial Hospital, Karnal and patient was not discharged from hospital properly. No discharge summary/ papers were handed over to them. In compelling circumstances, the patient was admitted in above said hospital of OP no.4 at about 8.00 a.m. on 05.07.2017. OP no.4 did not inform actual health condition of patient to them and put them in dark. OP no.4 forced the complainant no.1 to pay money in advance towards hospital and treatment expenses of the patient and he paid money in advance in hope to save life of his wife. That till 8.00 p.m., OP no.4 continued to put complainant no.1 and other family members under impression that condition of the patient was improving and that she would be saved definitely. The doctor OP no.4 put the patient on dialysis. However, at about 10.00 P.M., the OP no.4 all of sudden informed complainant no.1 that his wife could not be saved and has expired. On asking reason of sudden death, OP no.4 stated that patient was not given proper treatment by OP no.2 and that she was brought to his hospital in critical and deteriorated condition and that he treated the patient well as per his ability but was helpless to save her life. The OP no.4 charged an amount of Rs.65,000/- from complainant no.1 as hospitalization and treatment charges and dead body was handed over to them on the next day. 

5.             It is further averred that patient Sunita died due to negligence of OPs no.1 and 2 as OP no.2 did not get conducted all the necessary tests prior to the operation. The patient was suffering from minor pain in her abdomen, but she was not properly examined by OPs no.1 and 2 and directly unwanted surgery was done by them. OP no.2 had conducted careless operation without adopting medical norms. There was internal injury during the operation and doctor tried to hide the complications from them and at his own shifted the patient to another hospital of OP no.4 where she died in the absence of proper treatment. Thus, OP no.4 was also negligent in treating the patient. 

6.             It is further averred that Smt. Sunita except suffering from minor pain in the abdomen, was having healthy and sturdy body and she had no other medical problem and was having good health and used to do all household chores herself. As per the report of ultrasound dated 01.07.2017, both the kidneys of the patient were absolute in size shape and position, echo-texture. The operation for removal of fibroid in the uterus is an operation which cannot cause any complication whatsoever. However, because of negligence on the part of OPs no.1 and 2, the operation was performed in a very casual manner and internal injuries were inflicted during the process of operation leading to the death of patient in the hospital of OP no.4 and OP no.4 also did not proper treatment.       

7.             It is further averred that Smt. Sunita was 38 years old at the time of her death and was educated up to 10+2 and was NSS student. She was an expert tailor and embroider and used to do the work of stitching of clothes and embroidery of ladies garments and used to earn Rs.20,000/- per month and the service being rendered by her to the family were not less than the value of Rs.10,000/- per month and the complainants were fully dependent upon the deceased. Because of her untimely death, the complainants have suffered loss of love, affection and consortium. They have also suffered loss of earning and services being rendered by the deceased to the entire family. The complainants have spent Rs.1,00,000/- on the treatment and transportation of patient including operation charges and have also spent Rs.50,000/- on the funeral and last rites of deceased. The complainants are entitled to compensation of Rs.15,50,000/- for death of Smt. Sunita and Rs.1,50,000/- on account of treatment charges and other expenses due to negligence on the part of OPs no.1,2 and 4 and they have caused deficiency in service. Hence, this complaint. 

8.             Notice of the complaint was given to the OPs, OPs no.1 and 2 appeared and filed written version raising preliminary objections regarding no deficiency in service, involvement of complicated questions of law and facts, concealment of true facts etc and that although there was no negligence on the part of answering OPs in giving treatment to the patient, however, if any compensation is found payable to the complainants, the liability to pay the same is that of OP no.3 with which answering ops are insured vide a policy of professional identity No.272200/48?2018/1407. On merits, it is submitted that patient Sunita had earlier obtained the treatment from Kalpana Chawla Medical College and Hospital, Karnal and had been investigated. She came to the Outdoor Patient Department (OPD) of the answering OPs on 18.05.2017 and was diagnosed with Fibroid Uterus with dis-functional Uterine Bleeding (DUB) and she was advised operation. The patient was fully explained regarding the problem and the treatment and was counseled in detail alongwith her husband regarding the type and nature of the operation. The patient came to the hospital of OPs no.1 and 2 on 03.07.2017 alongwith investigation record of Kalpana Chawla Medical College and Hospital. The patient was admitted for operation 04.07.2017 and at that time she was accompanied with her mother-in-law. The patient had no complaint of pain, but was suffering from Per vaginal (PV) Bleeding. It is further submitted that patient was examined on 03.07.2017 and her operation was planned for 04.07.2017. The husband of patient i.e. complainant no.1 was asked to arrange for one unit of blood as the same was required to be transfused to the patient. It is further submitted that it is incorrect that answering OPs directed the complainant to purchase the blood unit from Pt. Ram Parkash Hospital Kidney Centre and Blood Bank, Karnal. Instead of arranging some donor, the complainant preferred to purchase the blood unit from above said blood bank of his own. It is also incorrect that operation was performed suddenly or that valid consent from the patient or her attendant was not taken. It was a planned operation performed after due counseling of the patient and her husband and it was not performed in any emergency. The operation was performed successfully. The operation was started at 5.10 P.M., and finished on 6.25 P.M. Before starting the operation, the patient was examined by anesthetist Dr. Satish Khattar who found her stable and fit for operation. The operation was conducted successfully and after the operation, the patient was kept in the recovery room and was later on shifted to High Density Unit (HDU). While denying other allegations of the complainants after operation, it is submitted that op no.2 as well as doctor Uday Miglani examined the patient regularly and attended upon her. At around 6-7 a.m., on 05.07.2017, patient suddenly starting having problem i.e. abdominal pain and reduced urine output and low blood pressure. Dr. Kamal Charaya was consulted and was of the opinion that it was suspected that patient had suffered bacterial infection following transfusion of the blood unit which had been purchased by the complainant no.1 from a blood bank. It is further submitted that apparently the blood unit was contaminated with bacteria and the said blood unit had not been subjected to tests as required. The patient required immediate attention of a Physician & ICU, therefore, the husband of patient was consulted who requested that the patient be discharged from the hospital so that he may take her to a Physician Dr. Kamal Charaya for proper treatment and consequently, the patient was discharged and she was taken to the hospital of Dr. Kamal Charaya. Because of bacterial infection due to contaminated blood, the patient suffered multiple organ failure and died in Shri Ram Chander Memorial Hospital. Dr. Kamal Charaya made all efforts to contain the infection, however, patient could not be saved. Remaining all other contents of the complaint are also denied and prayer for dismissal of complaint made.

9.             OP no.3 filed written version raising certain preliminary objections. It is submitted that policy in question was issued to the doctor as per condition 7 and 8 mentioned overleaf of terms and conditions of Professional indemnity policy for doctors and medical practitioners. The insured has failed to comply with terms and conditions of the policy and he has not informed the insurance company regarding the alleged mishap and receipt of summon etc., which was a condition precedent to indemnify, hence the insurance company is not liable to compensate the insured. 

10.           OP no.4 filed separate written version raising certain preliminary objections that answering OP had treated the patient as per standard protocol and there was no negligence on the part of answering OP in the treatment given to the patient and as such, complaint is not maintainable. That several complicated questions of law and facts are involved in the present complaint and same cannot be decided in a summary manner and the matter can best be decided by the civil court after affording the opportunity to the parties to lead their relevant evidence; that the answering OP was insured with Oriental Insurance Company ltd. vide policy No.272200/48/2018/1406 valid from 20.4.2017 to 19.4.2018 and the liability if any to pay any compensation is that of said insurance company. On merits, it is submitted that patient was brought to the hospital of OP no.4 by the attendants of the patient in the morning of 5.7.2017. On investigation and examination, the patient was found to be suffering from Acute Kidney Injury with Metabolic Acidosis resulting from Reduced Urine Output. In order to ease the pressure on Kidney, the patient was put on dialysis and she passed urine. Her Hematology report showed very high count of TLC and reduced RBC, PCV and MCV and MCH count. Her blood Urea and Serum Creatinine were also raised necessitating the dialysis. The Hematology tests were repeated in the evening of 05.07.2017 and TLC count was found to be alarmingly high and Neutrophils were also found to be raised. The liver function test revealed raised Bilirubin, SGPT and SGOT count was also alarmingly high. Procalcitonin test was also performed to judge the extent of infection and the same was alarmingly high being 11.4 NG/ML, which normally ought to be around 05 NG/ML. The patient was found to be suffering from septic shock due to severe bacterial infection which could have resulted due to contaminated blood transfusion. The condition of the patient kept on deteriorating gradually. The patient was put under regular monitoring and was given necessary medicines and infection was tried to be controlled. X-ray was conducted and report was suggestive of Pulmonary odema. The patient was put on ventilator support. The attendants of the patient were being constantly informed regarding the poor condition of the patient. However, because of severe septic shock, the patient suffered multiple organ failure and expired at 12.00 a.m. in the night of 5.7.2017. It is further submitted that no internal injury was detected on the patient. Rather she was found to be suffering from reduced Urine Output (Acute Renal Injury) and was also found to be suffering from severe bacterial infection which could have been result of transfusion of contaminated blood. The patient was found to be suffering from acute renal injury because of pressure exerted on kidney. The said kidney injury was not result of any surgical intervention, rather the same was due to reduced urine output and pressure on the kidney was tried to be eased by conducting dialysis on the patient. It is further submitted that death of the patient occurred because of bacterial infection and not because of any negligence on the part of treating doctor and as such, the complainant is not entitled to any compensation. Remaining contents of the complaint are also denied and prayer for dismissal of the complaint made.

11.           It is pertinent to mention here that OP no.4 also moved an application for impleading the Oriental Insurance Company Limited as party being insurer of OP no.4 and on notice to OP no.5, it appeared and in the written version pointed out that vide policy number 272200/48/2018/1407 as submitted by OP no.4, Dr. Nupur Charaya wife of op no.4 was insured and OP no.4 was not insured vide said policy. Thereafter, OP no.4 moved an application that due to inadvertence, wrong policy number was given by him and he also submitted policy no.272200/48/2018/1406 vide which he was insured with said insurance company.  

12.           Besides raising objection regarding wrong policy number supplied by OP no.4, the main plea of OP no.5 in the written version is that even if the contents of the complaint are read, it does not disclose any act, error or omission or negligence committed directly by the services rendered by OP no.4 to the deceased who was admitted to the Miglani Nursing Home by the complainant no.1 as per his own version legally and there is no direct or indirect evidence regarding the cause of death of the deceased and as such the present complaint deserves dismissal on this ground alone. It is further submitted that as per the policy terms and conditions also of OP no.5, it is mandatory for the insured to inform the company about the act of negligence immediately without any time loss. But the contents of the alleged negligence have come to the notice of OP no.5 at a later stage. Further no written notice by the insured or the complainant has been served to the OP no.5 before filing of present complaint and immediately after the alleged incident of death of patient due to unknown reasons and as such the company owes no liability whatsoever as neither at the time of admission of the patient nor at the time of discharge nor at the time of death and thereafter either the insured or complainant has given information in writing to OP no.5 about any alleged professional negligence by any of the doctor/ medical practitioner and as such complaint deserves dismissal on this ground alone. 

13.           On being impleaded as OPs no.6 & 7 on the application of complainants, notice was given to OPs no.6 & 7. OPs no.6 and 7 appeared and filed written version raising certain preliminary objections regarding maintainability of complaint in its present form as there is no specific allegation against OPs no.6 & 7, suppression of material facts and that complaint does not disclose any cause of action against answering OPs and that no information about the alleged incident or its manner was ever given to the answering OPs by the complainant and that complaint is bad on account of mis joinder and non joinder of necessary parties. On merits, while denying all the contents of complaint for want of knowledge, the contents of para no.5 of the complaint are admitted to the extent that one blood unit was purchased by the complainant from the answering ops vide receipt No.1226 dated 4.7.2017. Prayer for dismissal of complaint has also been made.

14.           The complainants filed replication to the written version of OPs no.1 & 2 submitting therein that OPs no.1 and 2 are negligent in performing operation and even after operation failed to take care of the patient Sunita as per norms, which resulted in spreading of infection in her whole body resulting septic shock and death. It is further submitted that Dr. Miglani failed to respond to the request of complainant no.1 to visit the patient in night when the condition of Sunita, since deceased began to deteriorate. Rather doctor came in the morning to attend the patient by which time the condition of the patient became critical due to spreading of infection in the body. As such, Dr. Miglani made no efforts to check the infection, rather shifted the patient to Dr. Kamal Charaya OP no.4. The alleged assessment of Dr. Kamal Charaya that the infection could be due to transfusion of contemplated blood seems to be an effort to absolve Dr. Miglani of his medical negligence. Remaining contents of the written version of OPs no.1 and 2 are also denied to be wrong and contents of complaint are reiterated. 

15.           The complainants tendered into evidence affidavit of Surinder Kumar complainant no.1 as Ex.CW1/A, birth certificate of Vandna Ex.C1, birth certificate of Radhika Ex.C2, copy of ration card Ex.C3, copy of Aadhar card of deceased Sunita Ex.C4, copy of Aadhar card of Surinder Kumar Ex.C5, copy of Aadhar card of Vandna Ex.C6, copy of Aadhar card of Radhika Ex.C7, report dated 28.06.2017 of Sunita blood test Ex.C8, Test recommended by Dr. dated 24.06.2017 Ex.C8/A, blood test report of Sunita dated 28.06.2017 Ex.C9, test prescribed by Doctor dated 24.06.2017 Ex.C9/A, blood test report of Sunita Ex.C10, prescription of test by Doctor dated 24.06.2017 Ex.C10/A, x-ray report Ex.C11, prescription for x-ray dated 24.06.2017 Ex.C11/A, test report dated 28.06.2017 Ex.C12, prescription by Dr. for test dated 24.06.2017 Ex.C12/A, ECG report Ex.C13, ultrasound report dated 11.03.2017 Ex.C14, film of computerized ultrasound Ex.C14/A, x-ray film dated 24.06.2017 of Sunita Ex.C15, ultrasound report of Sunita dated 02.07.2017 Ex.C16, receipt dated 02.07.2017 of Bharat x-ray Ex.C16/A, receipt of Rs.10,000/- dated 04.07.2017 of Miglani Nursing Home Ex.C17, receipt of blood (A+tive) dated 04.07.2017 of Pt. Ram Parkash hospital Ex.C17/A, investigation breakup bill of Dr. Kamal Charaya of Rs.16,500/- Ex.C18, Hospital bill receipt of Rs.3500/- Ex.C19, hospital bill of Rs.25000/- of Shri R.C. Memorial Hospital Ex.C20, medicine bills Ex.C21 to Ex.C25, copy of death certificate of Sunita Ex.C26, receipt of Rs.2000/- of Shivpuri Arjun Gate Karnal Ex.C27, receipt of Rs.10/- Shivpuri Ex.C28, copy of Sr. Secondary School Certificate of Sunita Ex.C29, copy of matriculation certificate of Sunita Ex.C30, copy of middle examination certificate of Sunita Ex.C31,  copy of N.S.S. certificate of Sunita Ex.C32, copy of Serology test report Ex.C33, copy of Haematology report Ex.C34, copy of Bio chemistry test report Ex.C35, test report dated 05.07.2017 Ex.C36, investigation report dated 05.07.2021 Ex.C37, tests report dated 05.07.2017 Ex.C38 to Ex.C40, summary report of Shri Ram Chand Memorial Hospital Ex.C41, summary report of Daily progress report Ex.C42, lab investigation requisition slip dated 18.07.2017 Ex.C43 and histopathology report dated 27.07.2017 of Sunita Ex.C44 and closed the evidence on 19.02.2021 by suffering separate statement.

16.           On the other hand, OPs no.1, 2 and 4 tendered into evidence affidavit of Dr. O.P. Miglani as Ex.OP1/A, affidavit of Dr. Kamal Charaya Ex.OP4/A, admission card dated 04.07.2017 Ex.OP1, Blood Bamk receipt dated 02.08.2017 Ex.OP2, Dr. Shikha’s Path Lab. receipt Dated OP3, Pre-Anaesthetic Assessment Ex.OP4, Prescription slip of Meglani Nursing Home dated 18.03.2017 Ex.OP5, Bharat x-ray ultra sound report dated 02.07.2017 Ex.OP6, Lab report dated 04.07.2017 Ex.OP6, lab report dated 04.07.2017 Ex.OP7, ECG Report Ex.OP8, Lab. Report dated 05.07.2017 Ex.OP9, Haematology report dated 28.06.2017 Ex.OP10, Blood Chemistry Ex.OP11, Insurance policy Ex.OP12, admission card dated 05.07.2017 Ex.OP13, TPR Chart Ex.OP14, Lab Report Ex.OP15 and insurance policy of Dr. Kamal Charaya Ex.OP16 and closed the evidence on 30.03.2021 by suffering separate statement.

17.           OP no.3  tendered into evidence affidavit of Sh. Anil Kumar Bhola, Divisional Manager as Ex.OP/1, insurance policy Ex.OP2 and terms and conditions of the policy Ex.OP3 and closed the evidence on 15.04.2021 by suffering separate statement.

18.           OP No.5 tendered into evidence affidavit of Sh. Sanjiv Kumar Madan, Senior Divisional Manager as Ex.OP5/A, insurance policy Ex.OP17, terms and conditions of the policy Ex.OP18 and closed the evidence on 30.03.2021 by suffering separate statement.

19.           OPs no.6 & 7 tendered into evidence affidavit of Dr. G.D. Sharma, Director, Pt. Ram Parkash Hospital, Kidney Centre, Karnal as Ex.OP6 &7/A. blood requisition form dated 04.07.2017 Ex.OP19, copy of blood issue register Ex.20, copy of blood issue register Ex.OP21, certificate of Analysis Ex.OP22 and Ex.OP23, report of KCGMC, Karnal dated 21.04.2017 Ex.OP24, reports of KCGMC, Karnal dated 03.06.2017, 28.06.2017, 14.07.2017, 19.08.2017, 15.09.2017, 13.10.2017 Ex.OP25 to Ex.OP30, reports of clinical diagnostic lab  dated 08.12.2017 and 11.01.2018 Ex.OP31 and Ex.OP32 and closed the evidence on 07.04.2021 by suffering separate statement.

20.           We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

21.           Learned counsel for the complainant while reiterating the contents of complaint in para no.3 to 12, has vehemently argued that there was gross negligence during the operation of the patient and at the time of myomectomy operation by op no.2, the kidney of the patient got damaged. The OP no.2 concealed the said damage and also did not provide proper care after the operation as a result of which the condition of the patient became more critical and deteriorated and then she was referred to the hospital of op no.4. He further argued that complainant repeatedly requested OP No.2 to provide the treatment record of the deceased Sunita but OP No.2 did not supply the same and this fact has been evident from the para No.8 of written version of the complaint. He further argued that as per treatment record Ex.OP1 at page No.8, it is evident that Dr.Kamal Charaya, visited the hospital of OP No.2 on 05.07.2017 at about 06:30 AM and on seeing the critical condition of the patient, he advised to inject an injection immediately in order to control the critical condition of the patient but the said injection was injected at about 08:30 AM by the OP No.2 and this fact is clearly proves from the treatment record Ex.OP3 at page No.9, which proved the negligence and carelessness of the OP No.2. He further argued that if the aforesaid injection was timely injected to the patient then her life can be saved. He has further argued that Smt. Sunita (since deceased) was not suffering from any critical illness and due to her wrong operation of removal of Fibroid in uterus by OP no.2 and negligence in care after operation by OP no.2 and also due to negligence in treatment by OP no.4, an untimely death of patient Sunita has been caused. So, complainants are entitled to the compensation as prayed for and complaint deserves acceptance. He has also relied upon decisions of the Hon’ble Supreme Court of India in cases titled as Ashish Kumar Maxumdar vs. Aishi Ram Batra Charitable Hospital Trust & Ors. 2-014 (2) ACJ 319 (SC), Arun Kumar Manglik vs. Chirayu Health & Medicare Private Ltd. & Anr. 2019 (3) ACJ 230 (S.C) and Maharaja Agrasen Hospital & Ors. vs. Master Rishabh Sharma & Ors. 2020 (2) ACJ 578 (SC). 

22.           On the other hand, learned counsel for OPs no.1 and 2 has contended that patient and her family members were fully explained about the surgery to remove fibroids from uterus and its post complications and the husband of patient Sunita gave his proper consent for surgery and consent papers were duly signed by him. The patient was already having investigation reports from Kalpana Chawla Medical College and Hospital, Karnal, but as precautionary measures, the OP no.2 also suggested for obtaining second ultrasound report and the second report also verified that patient was having fibroids in her uterus. The family members of the patient were also explained about post complication of the surgery. The operation conducted by OP no.2 was successful and there was no complication or negligence in conducting operation and proper post care was also given to the patient. He has further argued that blood unit was arranged by complainant no.1 himself from Pt. Ram Parkash Hospital Kidney Centre and Blood Bank, Karnal, instead of arranging some donor. The patient remained in satisfactory condition of health during night time and when her condition started becoming critical, the OP no.2 doctor immediately reached in the hospital at 6.00/7.00 a.m. on 5.7.2017 and Dr. Kamal Charaya was consulted about the condition of the patient, who was also of the opinion that patient had suffered bacterial infection following transfusion of the blood unit. The patient required immediate attention of a Physician & ICU, therefore, husband of the patient requested that she be shifted from the hospital, so that he may take her to a Physician for proper treatment and on his request, the patient was discharged. The allegations leveled by the complainants against OPs no.1 and 2 regarding negligence are false, vague and baseless as everything which was done by OP no.2 was done with due care, diligently and as per standard medical protocol. There is no expert evidence on record that OP no.2 was in any way negligent while conducting surgery of the patient or giving treatment to her, rather, OP No.4 who is an experienced doctor has clearly stated that death of the patient occurred because of bacterial infection and not because of any negligence on the part of treating doctor. He further argued that there is no expert opinion Board of Doctors as well as post mortem report on the file from which negligence of the doctor can be attributed. He has further argued that the complainants have concocted a false story just to grab amount from the ops. 

23.           Learned counsel for the OP no.4 has argued that as per written version every effort was made to save the patient but she was found to be suffering from acute renal injury due to reduced urine output and was also found to be suffering from severe bacterial infection due to transfusion of contaminated blood. The said kidney injury was not result of any surgical intervention and death of the patient occurred because of bacterial infection and not because of any negligence on the part of treating doctor. Moreover, there is no expert evidence on record that op no.4 was in any way negligent in giving treatment to the patient and prayed for dismissal of complaint. 

24.           Learned counsel for OP no.3 on behalf of New India Assurance Company i.e. insurer of OPs no.1 and 2 as well as learned counsel for OP no.5 on behalf of Oriental Insurance Company Ltd. i.e. insurer of OP no.4 have contended that OPs no.1,2 and 4 have violated the terms and conditions of the policies and even if the OPs no.1,2 and 4 are found responsible for any medical negligence, the insurance companies are not liable to indemnify them. Even then, if it is found that insurance companies are liable to indemnify the insured, their liability cannot exceed the amount as mentioned in the policies. 

25.           Learned counsel for OPs no.6 & 7 has contended that plea of the OPs no.1,2 and 4 that blood purchased by complainant no.1 from OPs no.6 & 7 was contemplated is an afterthought and is without any basis and any authentic report in this regard and this plea has been taken only to save their skin and to absolve from their liability. The OPs no.6 & 7 by leading cogent and convincing evidence i.e. by placing various reports have proved on record that blood was not contaminated. 

26.           After perusal of entire record and our thoughtful consideration to the rival contentions of the parties, the main issue which swirls around is, “whether there was deficiency or negligence of OPs doctors resulting into untimely death of patient Smt. Sunita?”. 

27.           Admittedly, Smt. Sunita (now deceased) wife of complainant no.1 and mother of complainants no.2 and 3 was having fibroid in her uterus and as such in the month of June, 2017 she was having abdominal pain. She alongwith her husband i.e. complainant no.1 visited to the Dr. O.P. Miglani, OP no.2 and OP no.2 suggested for conducting ultrasound and on such suggestion of OP no.2, ultrasound of patient Sunita was got conducted from Bharat X-ray and Ultrasound Clinic, Karnal, the report of which dated 02.07.2017 Ex.C16 relating to both Kidneys as well as Uterus is reproduced as under:-

KIDNEY RT: RT KIDNEY IS NORMAL IN SIZE, SHAPE & ECHO-             TEXTURE. NO EVIDENCE OF CALCULUS, S.O.L. OR    HYDRONEPHROSIS     SEEN

 

KIDNEY LT: LT KIDNEY IS NORMAL IN SIZE, SHAPE & ECHO-TEXTURE.        NO EVIDENCE OF CALCULUS, S.O.L OR HYDRONEPHROSIS SEEN 

 

UTERUS/ ADNEXAE: UTERUS IS ANTEVERTED, GROSSLY ENLARGED.   IT MEASURES = 15.9 X 8.5 X 10.5 CM. THERE APPEAR MULTIPLE         HYPOECHOIC AREAS IN RELATION WITH UTERINE WALL. THE         LARGEST MEASURES = 4.8 X 4.0 CMS AND SMALLEST MEASURES 2.0 X         1.8 CMS.  

                                                >>>>>>> FIBROIDS UTERUS 

28.             From the perusal of above said ultrasound report of patient Ex.C16, it is evident that both the kidneys of the patient Sunita as well as liver were found normal but fibroids in uterus were found. Prior to her check-up in the hospital of OPs no.1 & 2, patient Sunita was also having her ultrasound report from Kalpana Chawla Govt. Medical College Hospital, Karnal as Ex.C14, according to which, she was having three fibroids, the biggest was 43 mm x 23 mm in post-wall. On 04.07.2017, OP no.2 conducted surgery to remove fibroids from the uterus of the patient Sunita but thereafter the condition of the patient deteriorated. OP no.2 charged an amount of Rs.10,000/- towards hospital and treatment charges from complainant no.1 as is evident from copy of receipt dated 04.07.2017 Ex.C17 and according to complainant no.1, he has spent total amount of Rs.1,00,000/- on treatment and medicines etc. and has placed on record various bills and receipts in this regard as Ex.C18 to Ex.C25. According to the complainants, after the operation the patient remained in unconscious condition for some time and when the blood was transfused to the patient, immediately thereafter all of sudden her condition became serious and when she was being taken to ICU, she informed complainant no.1 that she was feeling more intolerable pain in her abdomen. She started recurring vomiting with blood after the operation but despite that OP no.2 while coming from ICU told to the family members of the patient that operation is successful, whereas according to the complainant, Sunita was continuously complaining for severe pain in her abdomen to OP no.2, but OP no.2 did not take any steps to remove the pain. According to the complainants, then OP no.2 and his staff members fled away from there without informing them about the health of the patient and only one attendant namely Sahil who was also an untrained person remained there but he also refused to call the doctor despite painful situation of the patient and he himself was injecting injections and medicines etc. to the patient. Till 7.30 a.m. on 5.7.2017 no doctor or nurse came to enquire about the condition of the patient. In the morning on 5.7.2017, OP no.2 came in the ICU room and after checking the patient, he informed complainant no.1 that condition of the patient was beyond their control and all of sudden asked to shift the patient in some other hospital. The complainant no.1 in order to prove his complaint has placed on file his affidavit Ex.CW1/A in which he has reiterated all the contents of the complaint. The ops no.1 and 2 have denied these allegations of complainants and have submitted that before starting the operation, the patient was examined by anesthetist Dr. Satish Khattar who found her stable and fit for operation. The operation was conducted successfully and after the operation, she was kept in the recovery room and was later on shifted to High Density Unit. The OPs no.1 and 2 have also denied that patient started recurring vomiting with blood immediately after the operation and have also denied that patient was complaining of severe pain in her abdomen after the operation. The remaining allegations of the complainants regarding fleeing away of OP no.2 and his staff members from the hospital, presence of an untrained staff member and injecting of injections etc. by that untrained staff member have also been denied by the ops no.1 & 2. According to OPs no.1 and 2, Dr. Uday Miglani examined the patient regularly and attended upon her, but at around 6.00/ 7.00 a.m. in the morning of 5.7.2017, patient suddenly started having problem such as abdomen pain and reduced urine output and low blood pressure. The OP no.2 doctor has also tendered his affidavit Ex.OP1/A in support of his contentions. But we found no substance in the defence plea of the opposite parties no.1 & 2 that in the morning of 5.7.2017 patient suddenly developed these problems of pain, reduced urine output and low blood pressure rather we found substance in the allegations of the complainants that the condition of the patient started deteriorating after the operation as she was continuously complaining pain in her abdomen just after the operation but the doctor OP no.2 or any of his trained staff did not provide post care to her. It cannot be said that her condition was alright during the night of 4.7.2017 and all of sudden became serious when the op no.2 doctor reached in the hospital. Rather it clearly proves that condition of the patient remained unwell during the whole night of 4.7.2017 after operation and she was continuously complaining pain and as such the OP no.2 doctor reached the hospital in the early morning i.e. at 6.00/ 7.00 a.m. on 5.7.2017. Further, we agree with the arguments of learned counsel of the complainant that if the injection which was instructed by OP no.4 Dr. Kamal Charaya had been timely injected to Smt. Sunita, then the life of patient (Sunita) may be saved and the position could have been different. So it is proved on record that OP no.2 doctor remained gross medical negligent in caring the patient after the operation as he did not care to be present in the hospital in the night time and waited for the morning despite critical condition of the patient. If the OP no.2 doctor would have visited the hospital in the night time and seen her critical condition and have referred immediately to a higher institution in the night, the precious life of patient Smt. Sunita would have been saved. The OP no.2 doctor has not proved by leading cogent evidence that he attended the patient in the night time and the writing on the progress chart of the night time is in his hand writing. The OP no.2 doctor has not tried to get conducted medical tests of the patient during her severe critical condition and directly referred her to hospital of OP no.4 who got conducted various tests of the patient, whereas it was the duty of OP no.2 to get conducted her tests during night in order to know the reason of any infection keeping in view her critical condition.     

29.           Further, the medical negligence of OP No.2 doctor is also proved from the version of OP no.4 doctor Kamal Charaya, which reveals that on investigation and examination, the patient was found to be suffering from acute kidney injury with metabolic acidosis resulting from reduced urine output and in order to ease the pressure on kidney, the patient was put on dialysis and she passed urine. Her Hematology report showed very high count of TLC and reduced RBC, PCV and MCV and MCH count. Her blood Urea and Serum Creatinine were also raised necessitating the Dialysis. The Hematology tests were repeated in the evening of 5.7.2017 and TLC count was found to be alarmingly high and Neutrophils were also found to be raised. The liver function test revealed raised bilirubin, SGPT and SGOT count was also alarmingly high. Procalcitonin test was also performed to judge the extent of infection and same was alarmingly high being 11.4 NG/ML, which normally ought to be around 0.5 NG/ML. Further, according to op no.4 doctor, patient was found to be suffering from septic shock due to severe bacterial infection which could have been resulted due to contaminated blood transfusion. The condition of the patient kept on deteriorating gradually. The patient was put under regular monitoring and was given necessary medicines and infection was tried to be controlled. X-ray was conducted and report was suggestive of pulmonary odema. The patient was put on ventilator support and the attendants of the patient were being constantly informed regarding poor condition of the patient. However, because of severe septic shock, the patient suffered multiple organ failure and expired at 12.00 a.m. in the intervening night of 5.7.2017/6.7.2017. This all medical condition of the patient as pleaded by op no.4 proves medical negligence of OP no.2 doctor because during whole night the patient remained under intolerable pain but the OP no.2 doctor did not give preference to attend the patient during the night time and did not get conducted any of the medical tests of the patient as got conducted by OP no.4 and only visited the hospital in the early morning of 5.7.2017 when the condition of the patient became more critical and then all of sudden he referred the patient to another hospital. The possibility of condition of the patient becoming worst after the operation due to non-discharging of urine cannot be ruled out. The op no.2 doctor should have got inserted catheter in the urinal area to pass on the urine of the patient in order to avoid pressure on the kidney, but he has failed to do so. In the medical notes Ex.OP13 prepared by op no.4 doctor, in the coloum of diagnosis, it is categorically mentioned “Acute Kidney Injury with Metabolic Acidosis” whereas in the previous reports of patient Sunita which were got conducted prior to the operation conducted by op no.2, both the kidneys of the patient were normal. In the ultrasound report dated 2.7.2017 Ex.C16 which was got conducted by OP no.2 doctor, the liver was also found to be normal whereas in the test reports (Ex.OP15) got conducted by op no.4, the liver function test revealed raised Bilirubin, SGPT and SGOT count was also alarmingly high. Further, procalcitonin test was also performed to judge the extent of infection and same was alarmingly high being 11.5 NG/ML whereas normal rage of the same ought to be around 0.5 NG/ML. All the above said tests of the patient prior to the operation were normal and it can easily be said that due to complication in the operation conducted by OP no.2, her all tests of organs became abnormal and alarming. According to OP no.4 doctor, patient was found to be suffering from acute renal injury because of pressure exerted on kidney and same was due to reduced urine output. The OP No.2 did not even try to reduce the pressure on kidney which can be eased by conducting dialysis on the patient. This all also shows that op no.2 doctor was negligent in operating the patient because in earlier clinical tests of the patient, the kidney, liver and other tests were found normal but after the operation, as per report dated 5.7.2017 Ex.C35, her creatinine level reached to maximum range of 3.0 mg/dl than the normal range of 1.5. The possibility of condition of the patient becoming worst after the operation due to non-discharging of urine cannot be ruled out. As mentioned above, the OP no.2 doctor should have got inserted catheter in the urinal area to pass on the urine of the patient in order to avoid pressure on the kidney, but he has failed to do so and therefore, the condition of the patient became so critical that she was to put on dialysis and thereafter she passed urine, whereas as discussed above, her vital organs i.e. kidney and liver were normal. But however, after the operation conducted by OP no.2 doctor, her multiple organ failed and she also suffered severe septic shock, which clearly speaks about the gross medical negligence of the OP no.2 doctor while performing operation and not giving of post care treatment. The stand of OPs doctors that patient was found to be suffering from severe bacterial infection which could have been result of transfusion of contaminated blood is based on conjectures and surmises and is only presumption of the ops doctors as they did not get conducted tests of the patient to prove that actually the condition of the patient deteriorated due to transfusion of contaminated blood. The OPs no.1 and 2 have also not given their own opinion regarding death of the patient and have only relied upon oral version of the op no.4 doctor and there is no cogent and convincing evidence on behalf of OPs no.1 & 2 that blood which was transfused to the patient was actually contaminated. Whereas the ops no.6 & 7 have placed on file affidavit of Dr. G.D. Sharma, Director, Pt. Ram Parkash Hospital, Kidney Centre, Civil Hospital Road, Karnal as Ex.OP6 & 7/A in which he has categorically stated that patient sample was tested for blood group which was A+ve. It was cross matched major and minor properly with tube & slide method, Donor blood which was to be issued, already tested in the lab for various diseases HIV, HCV, HBSAG and Malaria, VDRL and so on. Then cross matched blood after being compatible and clearly visible was issued to the relative of patient Sunita. He has further stated that an instruction of transfusion and also an agreement with centre and blood bank was signed by him that hospital, blood bank and its staff will not be held responsible for any consequence on account of blood transfusion for his patient Sunita who is admitted in Miglani Hospital. He has also stated that still if there is any reaction, please inform the blood bank within half an hour alongwith the sample of the patient blood and blood bag which was being transfused. Ops no.6 and 7 have also placed on record report of Quality Control Department and other reports as Ex.OP22 to Ex.OP32 showing that the batch No.17030329 of the blood which was given to complainant no.1 complies as per ISO/ In-House specifications and there was no bacterial growth in it. The OP no.2 doctor also should have taken sample of the blood before transfusion to the patient so that in case of any necessity same has got tested but he has not done so and therefore, in absence of any credible report, it cannot lie in the mouth of ops doctors that blood purchased from ops no.6 & 7 was contaminated.   

30.           The contention of learned counsel for OPs no.1 and 2 that there is no expert evidence on record that patient died due to medical negligence of OP no.2 is immaterial in this case because medical negligence of op no.2 is apparently clear. In this regard, we found support from the judgment of the Hon’ble Supreme Court of India in case titled as Maharaja Agrasen Hospital & Ors. vs. Master Rishabh Sharma & Ors. 2020 (2) Apex Court Judgments 578 relied upon by learned counsel for complainant, wherein it has been held that :-

“Medical negligence- Expert opinion- Court is not bound by the evidence of an expert, which is advisory in nature- Court must derive its own conclusions after carefully sifting through the medical records, and whether the standard protocol was followed in the treatment of the patient- Duty of an expert witness is to furnish Court with the necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the Court to form an independent opinion by the application of this criteria to the facts proved by the evidence of the case. 

  

31.           In so far as allegations of complainant regarding medical negligence of OP no.4 doctor is concerned, there is nothing on record to prove that he did not adopt standard protocol of medical norms in treating the patient, rather he got conducted various tests of the patient and also put her on dialysis to ease the pressure on the kidney, so that life of patient could be saved and he tried his best to save the patient but unfortunately her life could not be saved. The OP no.4 doctor is not found to be negligent in any manner.

32.           The complainants have duly proved on record that Smt. Sunita died due to medical negligence of OP no.2 doctor and also due to carelessness of opposite parties no.1 & 2 and the complainants are legally entitled to compensation for her untimely death from ops no.1 and 2 and the insurance company i.e. op no.3 which is insurer of op no.1 hospital for the period 27.4.2017 to 26.4.2018 (patient died on 5.7.2017) as per policy Ex.OP12, is liable to indemnify the ops no.1 and 2.  

33.           The next point is with regard to the quantum of compensation to be awarded to the complainants. The complainants have alleged that they have spent an amount of Rs.1,50,000/- on the treatment of Smt. Sunita, since deceased and other expenses of transportation etc. including funeral and last rites of deceased and have also placed on file various bills of ops no.1 and 2 hospital and op no.4 hospital in this regard. The complainants have also placed on record various receipts of the clinical test of the patient. So, it is clearly proved on record that complainant no.1 has spent the above said amount of Rs.1,50,000/- on the treatment of his wife including transportation and funeral etc. The complainants have also claimed an amount of Rs.15,50,000/- as compensation for the untimely death of Smt. Sunita. No doubt, the complainants have lost love and affection of Smt. Sunita being wife of complainant no.1 and mother of girl children and they have also suffered mental and physical inconvenience and permanent shock. Though, she was not employed, but contribution made by a non-working spouse to welfare of family has an economic equivalent. In this regard we also found support from the judgment of the Hon’ble Supreme Court of India in case titled as Arun Kumar Manglik Vs. Chirayu Health & Medicare Private Ltd. & Anr. 2019 (3) Apex Court Judgments 230 (S.C) relied upon by learned counsel for complainant, wherein it has been held as under:-

(ii) Consumer Protection Act, 1986, S.12- Medical negligence- Death of non-working spouse- Compensation- In computing compensation payable on death of a home maker spouse who is not employed, Court must bear in mind that contribution is significant and capable of being measured in monetary terms. 

 

34.           In Arun Kumar’ case (supra) the Hon’ble Supreme Court of India enhanced the compensation to Rs.15 lakhs with 9% interest. So, we are of the opinion that end of justice would be met, if the complainants are awarded lumpsum amount of Rs.12,00,000/- (twelve lakhs only) alongwith interest as compensation including expenses incurred by them on account of untimely death of Smt. Sunita due to medical negligence of OPs no.1 and 2. The OPs no.1 and 2 are found responsible to pay the said amount to the complainants. However, no liability of OP no.4 to 7 to pay any compensation amount is made out and as such they are absolved from the liability and the complaint against OPs no. 4 to 7 stands dismissed.        

35.           In view of our above discussion, we allow the present complaint against OPs no.1 & 2 to pay the amount of Rs.12,00,000/-(twelve lakhs only) as compensation to the complainants and Rs.11,000/- towards the litigation expenses.  Initially, the OPs no.1 and 2 will pay the said amount to the complainants and OP no.3 will indemnify the OPs no.1 and 2 as per terms and conditions of the insurance policy and liability of OP no.3 to pay the amount will not exceed the insured amount as mentioned in the policy. The above said amounts will be paid to all the complainants in equal shares. The amount of the share of complainant no.3 who is minor alongwith interest will be deposited in some nationalized bank in the shape of FDR till she attains the age of majority. This order shall be complied with within a period of 45 days from the date of receipt of copy of this order. It is made clear if the abovesaid amount is not paid by the OPs no.1 and 2 within stipulated period then this amount will carry interest @ 9% per annum from the date of announcement of order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:23.07.2021

                                                                President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

(Vineet Kaushik)       

                   Member