PER DR. S.M. KANTIKAR, MEMBER

1.           The present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 01.07.2008 in Appeal No. 797/2005 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’). The State Commission partly allowed the Appeal filed against the order in Complaint No Consumer Complaint 615 of 2003 dated 28.06.2005 passed by the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’).

1.           The main issue of medical  negligence was alleged by the complainant Mr. Ramesh Chand Sharma who suffered triple vessel disease (TVD) of heart; against the OP Dr. Ashok Seth (Interventional Cardiologist) who took a decision to perform angioplasty instead of CABG. It was an intentional, wrong decision in order to extract money. Thus the District Forum, Delhi has directed the OPs to refund the Complainant, an amount of Rs.2,82,265/-, paid as entire cost of operation, along with Rs.1,00,000/- for mental agony and Rs.3,000/- as costs of litigation.
2.        Against the order of District Forum, the OPs filed a first appeal before State Commission, which was partly allowed by awarding lump sum compensation of Rs.2,50,000/-.

1.       Thus, aggrieved by the order of State Commission the OPs filed this revision.

              We  have  heard  the  learned  Counsel  for  the  parties  and  perused  the  medical  records, also  the  medical  literature  on  Re-Stenosis. The  counsel  for  complainant  submitted  that, the  complainant/patient  was  a  known  case of hypertension and dyslipidemia, suffered Myocardial Infarction  (MI)  in  1983  and  1992, diagnosed  by  Angiography as 100% block in Right Coronary artery (RCA) and 90% block in left Circumflex Artery(LCX). He  underwent  CABG  on  27.01.1992.  In  1995, he again  suffered  inferior  wall  MI, angiography  was  done on 20.10.1995  which revealed  same  double  vessel  disease  and  multiple  lesions  in  LCX,  hence he underwent Angioplasty of LCX on 1.11.1995. Thereafter, on 05.10.2002 the Complainant was admitted to OP Hospital for coronary angiography. Dr. Saxena  performed  angiography, who  diagnosed  the patient  as Triple Vessel Disease and mild LV dysfunction, and he recommended CABG. But, on 16.10.2002 OP-2 performed for PTCA (angioplasty with stents), the Complainant paid Rs.2,82,268/- for this treatment. However, despite the PTCA the Complainant continued to suffer from heart pain till 25.11.2002.Therefore again Angiography was performed on 16.12.2002 at free of cost. It revealed

              All SV grafts blocked

              OM 280% stenosis beyond OM stent

              LIMA 90% in stent at distal anastomosis site

Thus, he  was  advised  for  CABG. The Complainant requested the OPs  to  do the CABG from the cost of the PTCA already paid by him, but his request was turned down by OPs. Hence, Complainant met Dr. Naresh Trehan, who, after seeing the CD of re-do angiography, told him that small stents were provided in the bigger blockade and the same failed to clear the passage of blood in the blood vessels. Therefore, the complainant underwent CABG at Apollo Hospital on 24.12.2002. Therefore, the counsel for complainant submitted that the OP No.-2 Dr. Ashok Seth, committed negligence in conducting the procedure of PTCA on 16.10.2002, instead of CABG.

1.        According  to  the  counsel  for Petitioner/OP, the  patient  was  a  known case of dyslipidemia, and had a predisposition for repeated stenosis (narrowing and blockage of arteries), which was evident from his past medical history. Thus,  the  risk  of  stenosis  was  inherent  after  angioplasty,  despite due care and caution in the procedure. The counsel further submitted that, patient had already undergone bypass surgery in 1992; therefore, repeat bypass surgery (CABG) is less effective and is of greater mortality. Also, in such  cases  the  endeavor  was always,  to  first avoid a second CABG surgery and  to  avail  of  the  safer  option  of angioplasty. In view of this, the OP-2 took a decision of   angioplasty in this patient.              

1.       We have perused the medical text,(Annexure H), which states that if restenosis  occurs  for  the  second  time, consideration should be given to repeat angioplasty. The relevant extracts from the said medical text is re-produced hereunder:

“If restenosis occurs within stent, it is usually treated by repeating an angioplasty (as was done in Mr. Chenny’s case). However, once restenosis occurred, the chance of a second restenosis nearly doubles. Thus, for instance, the Vice President’s chance of having a second restenosis during the next six months is around 40 $. And what happens if in-stent restenosis does occur a second time? In this case, consideration should be given to repeat angioplasty followed by brachytherapy (intracoronary radiation)”.

1.       A medical text was annexed along with the affidavit by way of evidence filed on behalf of the Petitioners. The said medical text bore the heading ‘Restenosis after angioplasty and stenting. If it can happen to Dich Chenny, it  can happen to anyone’. In  the  said  text,  it  was  stated  that  the  risk of restenosis is there, even if a person gets the best medical care in the world and that risk of restenosis during the first six months after a stent was as high as 20-30%. The relevant portion of the text is reproduced as under:

“But- as has been graphically illustrated in Vice President Dick Chenny’s case-restenosis remains a significant problem, even with the stents, even if you are famous, and even if you are getting some of the best medical care in the world. The risk of restenosis during the first 6 months after a stent remains as high as 20-30%”.

1.          After going through the medical literature, evidence on record, the patient’s  past  history  and  medical  documents  from  the  OP  hospital,  we are  of  considered  view that, the patient  was prone to tendency of re-stenosis, who suffered frequent cardiac aliments like chest pain and MI. The decision of OP-2 to perform PTCG instead of CABG was correct and it was in the  interest  of  patient. The  medical  literature clearly mentioned about greater risk of mortality in performing second time CABG. We highly appreciate, that Dr. Trehan advised and performed CABG with his expertise and vast experience. The mode of treatment differs from each doctor. The courts  have  to  look  into, whether, there was any deviation of stand of practice adopted by OP-2 in this instant case. We don’t find any such deviation. Dr. Ashok Seth (OP-2) is also a Senior Cardiologist, it was his reasonable approach to deal with such cases, which is not a medical negligence. Thus, the patient cannot claim his right for free of cost CABG on the basis of allegations of medical negligence.  It is a known fact that with the best skills  in  the  world, things  sometime  go  wrong  in  medical  treatment or surgical operation.

1.      A  doctor need not be held negligent simply because something went wrong. The Hon’ble Apex Court, as well as this Commission in a catena of decisions has held that, the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals. We put reliance upon, the case of Dr. Laxman Balkrishna vs. Dr. Trimbak, AIR 1969 SC 128, Hon’ble Supreme Court has held the above view. In the case of Indian Medical Association vs. V. P. Shantha (1995) 6 SCC 651,  the Hon’ble Supreme Court has decided that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the Complainant to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient.
2. Therefore, on the basis of foregoing discussion, we set aside the orders passed by both the fora below and allow this revision petition and dismiss the complaint.