Appeared at the time of arguments

(in both matters)

For the Petitioner :        Mr. Kaushik Dey, Advocate

For the Respondents       :        Mr. Jai Kumar Sinha, Advocate for R-1 to 3

Pronounced on: 17^th May  2023

ORDER

1.  The Order shall decide both the Revision Petitions arising out from the impugned judgment / Order dated 04.10.2019, passed by the State Consumer Deputes Redressal Commission, Lucknow, U.P. (hereinafter referred to as the “State Commission”) in First Appeal No. 2143/2014, wherein the State Commission upheld the Order of the District Forum.

2.  For the convenience, the parties are being referred to as mentioned in the Original Complaint before the District Forum.

3.  Brief facts that on 17.04.2006, the patient Ram Naresh Singh- the husband of Munni Devi (Complainant No. 1) had a small bud-like growth in his mouth and consulted from Dr. Vivek Garg (OP-1) at Lucknow Cancer Institute (OP-2 / for short, ‘Cancer Institute’). A biopsy was reported as a cancer and OP-1 operated the patient on 03.05.2006. Subsequently, on 04.05.2006, the patient developed vomiting and diarrhoea and finally he expired on 09.05.2006.  Being aggrieved by the death of the patient, the Complainants have filed the Consumer Complaint No. CC/224/2007 before the District Forum and prayed for compensation of Rs.12,00,000/- along with litigation cost.

4.  The OPs, in their written versions, denied any medical negligence. The patient was clinically and histo-pathologically diagnosed as "Carcinoma Left Buccal Mucosa" (Stage-III). He was further treated with standard medical protocols.

5.   The District Forum, vide its Order dated 03.09.2014, partly allowed the Consumer Complaint and directed the OP-1 to pay Rs. 1,80,000/- and OP-2 to pay Rs. 1 lakh and Rs. 5,000/- towards cost of litigation.

6.    Being aggrieved, the OP-1 filed First Appeal No. 2143 of 2014 and the OP-2 / Cancer Institute filed First Appeal No. 1089 of 2014 before the State Commission.

7.     The State Commission upheld the Order of the District Forum, but reduced the compensation with modification of the Order. Accordingly, the liability of OP-1 Dr. Vivek Garg was reduced from Rs.1,80,000/- to Rs.1,00,000/-.

8.     Being aggrieved by the impugned Order, the OPs-1 and 2 filed these two separate Revision Petitions.

9.    Heard the learned Counsel for both the sides and perused the material on record. There was more than 230 days delay in filing both the Revision Petitions. For the reasons stated, the delay is condoned. It is evident from the record that on 03.05.2006, the cancer surgery performed by OP-1 was uneventful. The patient suffered episodes of loose motions in the night of 06.05.2006 and 3 to 4 times on 07.05.2006 and on 08.05.2006. The patient was transfused blood, I/V fluids, antibiotics and pain killers. His blood sugar was monitored continuously and dose of inj. human insulin was properly given. The patient was also given RT feeding about 2.5 to 3 ltrs per 24 hours for the easy passage of urine. Folley’s catheterisation was done.  On 08.05.2006, the patient condition was stable, but he had complaints of diarrhea with watery motions. The IV fluids, RL isolite, DNS were given. The blood urea was 143mg% and creatinine was 5.72 mg%, which were on higher side, therefore, the need for dialysis was discussed with the relative of the patient and advised to shift the patient to Awadh Nursing Home. While at 11pm, shifting the patient in the ambulance, he had respiratory disturbances and it was suspected to be severe MI. Immediately, CPR and Cardiac massage was given. After   consulting Cardiologist at Awadh, Inj. Noradrenaline drip in DNS was started. However, because of severe MI, again at 12.15pm, the patient was managed with external cardiac massage. Intracardiac adrenaline, inj. efcorlin, inj. decadron were given. However the patient expired due to cardiorespiratory arrest at 12.40am. 

10.    It is pertinent to note that the grouse of the Complainant that during post-operative period, there was no proper care. However, on careful perusal of the entire medical record, I find that the patient was diagnosed correctly and operated as per reasonable standard of practice. During hospitalisation, as the patient was highly diabetic, the periodic blood sugar monitoring and inj. human insulin were administered in the standard doses. The patient was administered IV fluids, blood transfusion and proper medications. It is evident that the patient developed uraemia (renal complications) and suffered MI. The team of doctors took necessary steps of CPR, but the patient expired despite all efforts. In my view, the death was not attributable as a medical negligence in the instant case. Both the fora have erroneously held the OPs liable.  The Complainants failed to put cogent material on record or any medical evidence to substantiate their case. This view dovetails from the judgment of Hon’ble Supreme Court in Dr. Harish Kumar Khurana vs. Joginder Singh[1], wherein it was observed as below:

“it is clear 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.   To   indicate   negligence   there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could   be   made   applicable   and   not   based   on perception. In the instant case, apart from the allegations made   by   the   claimants   before   the   NCDRC   both   in   the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors who, on their own   behalf   had   explained   their   position   relating   to   the medical process in their affidavit to explain there was no negligence.

11.  The Hon’ble Supreme Court in the case of Bombay Hospital and Research Medical Centre vs. Asha Jaiswal & Ors.[2] observed that:

if the patient was in a critical condition and he could not survive even after surgery, keeping that in mind the blame cannot be passed on to the Hospital and the Doctor who had provided all possible treatment within their means and capacity to diagnose the patient of this illness. The family may not have coped with the loss of their loved one, but the Hospital and the Doctor cannot be blamed as they had provided the requisite care at all given times. 

Thus, every death of a patient cannot, on the face of it, be considered as death due to medical negligence, unless there is material on record to suggest to that effect.

12.     In view of the aforesaid reason, both the fora below have erred in holding the OPs liable. The Impugned Orders of fora below suffers from material illegality.

13.     Based on the discussion above, I find that the findings recorded by both foras, holding Doctor and Hospitals guilty of medical negligence, are not sustainable in law. The whole approach of the fora is erroneous. Consequently, both the Revision Petitions are allowed. The order passed by the State Commission is set aside. Consequently, the Complaint before the District Forum is dismissed.

14.     If any amount is deposited by the Petitioners before this Commission or the State Commission, the same shall be released with accrued interest, if any, to the respective Petitioners after six weeks from today.