Chandigarh

StateCommission

A/749/2008

Fortis Health Care Limited - Complainant(s)

Versus

Sh. Subhash Chander Kakkar - Opp.Party(s)

Manish Kapila, Adv.

15 Jul 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	749 of 2008
Date of Institution	09.05.2008
Date of Decision	15.07.2019

 

 

1. Fortis Health Care Limited, through its Managing Director, B-9, Maharani Bagh, New Delhi-110065.
2. Fortis Hospital Mohali, through its Manager/Administrative Head, Sector-62, Phase-VIII, Mohali-160062.
3. Dr.R.K.Jaswal, Senior Consultant (Interventional Cardiology) Fortis Hospital, Mohali, Sector-62, Phase-VIII, Mohali-160 062.
4. Fortis Hospital (City Centre) through its center Manager, SCO No.56-57, Sector 9-D, Madhya Marg, Chandigarh, U.T. 16 0017. 

 

                            ….Appellants/Opposite Parties.

                           Versus

Sh. Subhash Chander Kakkar, resident of House NO.394, Sector-44-A, Chandigarh. U.T.

                            ….. Respondent/Complainant.

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

              SMT.PADMA PANDEY, MEMBER                  

              SH.RAJESH K. ARYA, MEMBER

 

Argued by:

 

Sh. Munish Kapila, Advocate for the appellants.

Sh. Neeraj Pal Sharma, Advocate for the respondent/complainant.

 

PER PADMA PANDEY, MEMBER

            This appeal is directed against the order dated 08.04.2008, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (in short ‘the Forum’ only), vide which, it allowed Consumer Complaint bearing No.379 of 2006 and directed the Opposite Parties to pay Rs.4,77,500/- as compensation within a period of 30 days from the receipt of the order, failing which, they were to pay it alongwith penal interest @12% p.a. from the date of institution of the complaint i.e. 06.06.2006 till payment.

2.             Aggrieved against the aforesaid order, the instant appeal was filed by the appellants on 09.05.2008 with this Commission, which was allowed vide order dated 17.09.2008 and set aside the order passed by the Forum.

3.             Against the aforesaid order passed by this Commission, the complainant filed Revision Petition No.4346 of 2008 before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, which was allowed vide order dated 03.12.2015 and set aside the order passed by this Commission and the matter was remanded back to this Commission to decide appeal afresh after considering affidavit of Dr.Baljeet alongwith other evidence filed by the respondent in rebuttal to this affidavit and after giving an opportunity of being heard to the parties. The parties were directed to appear before this Commission on 11.01.2016.

4.             On the said date i.e. 11.01.2016, this appeal was taken up for hearing, in terms of the order dated 03.12.2015 passed by the  Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.4346 of 2008.

5.             During the pendency of this appeal, Miscellaneous Application bearing No.48 of 2016 was filed by the appellants – Fortis Health Care Ltd. for placing on record document (Annexure A-3) i.e. Emergency Room History Sheet (ER History Sheet), which was dismissed by this Commission vide order dated 02.09.2016.

6.             Aggrieved against the aforesaid order passed by this Commission on 02.09.2016 in miscellaneous application, the appellants filed Revision Petition No.3306 of 2016, which was allowed vide order dated 18.05.2018 passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi and set aside the impugned order, with a direction that the said document(s) shall form part of the record, subject to the petitioners paying to the complainant a sum of Rs.5,000/- as costs, which shall be paid to the complainant before this Commission and parties/their Counsel were directed to appear before this Commission on 25.07.2018 for further proceedings in accordance with law.

7.             On 25.07.2018, Counsel for both the parties were present and in terms of the aforesaid order passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, the appellants paid an amount of Rs.5,000/- as costs, in cash, to the respondent/complainant and also produced the said record with this Commission for proper adjudication of the case.

8.             This Commission noted down the following facts narrated by the respondent/complainant at the time of passing order dated 17.09.2008 in the instant appeal :-

“2..    Briefly stated the facts are that   Sh.Subhash Chander Kakkar, respondent  (complainant) felt acute chest pain on 13.8.2005. He was rushed to emergency department of PGIMER, Chandigarh where he was thrombolysed.

3.         It was next averred that thereafter he went to Fortis hospital, Mohali on the same day i.e. 13.8.2005 and appellant No.3- Dr.R.K.Jaswal  without explaining the procedure and its risks conducted selective coronary angiography upon him including deployment of a stent in the RCA (Right Coronary Artery). He made payment of Rs.2,77,439/- to OP No.2 (respondent NO.2) vide receipts annexures C-3 & C-4 and was discharged on 16.8.2005. 

4.         It was further averred that respondent visited appellant NO.3- Dr.R.K.Jaswal, Sr. consultant several times for follow up/consultation and the said doctor had assured him that there was absolutely no problem with the heart as the problem in the artery concerned had been encountered via PTCA (Percutaneous Transluminal Coronary  Angioplasty)  done  successfully.

5.         It was next averred that in December,2005, respondent felt some discomfort and visited some other doctor at Chandigarh and on his advice he got done ECG, Lipid Profile and Tread Mill Test (TMT) which were conducted on 21/22.12.2005 vide annexures C-9 and C-10) and found that the TMT test was positive. Thereafter he approached appellant NO.3 Dr.R.K.Jaswal who advised Check Angiography to which he refused.

6.         It was further averred that respondent consulted another cardiologist at Chandigarh on 20.1.2006 with the said coronary angiography report dated 13.8.2005  supplied on 23.12.2005 to him and the doctor informed him that out of three main arteries which had blockage to the extent of 90%, 90% and 95% respectively , the procedure had been accomplished only on one artery by stenting and the remaining two arteries had been left chocked which disease is called as Triple Vessel disease.

7.         It was next averred that report clearly demonstrated that the said doctor   Dr.R.K.Jaswal on conducting angiography on the respondent on 13.8.2005 had found Triple Vessel Disease  of the above said magnitude and without informing him or  taking consent  had conducted PTCA procedure on him thereby relieving  him of stenosis (narrowing/obstruction) of one artery only and leaving him at risk for a myocardial infraction (MCI) subsequently. Thus, Dr.R.K.Jaswal had chosen to perform PTCA of only one artery negligently thereby ignoring byepass of remaining two arteries which were chocked  despite having an option available at that time which was later on required the procedure of CABG (Coronary Artery Byepass Grafting).  

8.         Alleging deficiency in service on the part of Dr.R.K.Jaswal and breach of professional ethics , the complaint was filed.”  

9.             This Commission noted down the following facts narrated by the appellants/Opposite Parties to the complaint filed by the complainant, while passing order dated 17.09.2008 :-

“9.        Appellants (Opposite parties) contested the complaint and filed reply. They stated that Thrombolysis performed by PGI, Chandigarh upon respondent was a failed one as the ST level of ECF elevation persisted for 90 minutes.  The only option was a rescue angioplasty. They further stated that respondent and his accompanying relatives were explained the surgical procedure  and written consent was taken vide annexure R-1 & R-2.  So, they denied that the patient was not informed about the need of CAG  since, the patient himself signed the consent for CAG, so, there was no question that he was not informed.  It is further stated that after  angiogram , since, respondent was on table,  his complete angiography report was explained and discussed  with his wife and after operation, respondent was advised to visit for follow up treatment  and was also put on medication.  They admitted  that on 20.8.2005  respondent visited the hospital  and his tests for blood  urea, electrolytes, ECFG, complete blood count etc. were conducted. They further stated that Check angiography was advised on two grounds i.e. firstly that the check angiography was due as  PTCA Procedure had been performed on the respondent as a rescue angioplasty and secondly on the two reports the patient had brought with  him the credibility of same could not be commented upon as the reports were not from hospital.  They also stated that the procedure adopted by them and performed upon respondent and medical treatment given to him was acceptable method of treatment and was substantiated by the literature.  They denied other allegations and stated that the method was adapted to salvage as much heart muscle as possible without any loss of time and at a later date CABG was to be done, if needed to correct other arteries and the same was done in the case of respondent.” 

10.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

11.           Before coming to this, let us ponder what is medical negligence ? Law of negligence has to be applied according to the facts of the case :-

“48. According to Halsbury's Laws of England Ed.4Vol.26 pages 17-18, the definition of Negligence is as under:-"22. Negligence : Duties owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case: a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient (c)."

49. In a celebrated and oftenly cited judgment in Bolam v. Friern Hospital Management Committee (1957) I WLR 582 : (1957) 2 All ER 118 (Queen's Bench Division - Lord Justice McNair observed.

"(i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a 24

practitioner to follow one in preference to the other accords also with American law; See 70 Corpus Juris Secundum (1951) 952, 953, para 44. Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence ibid. 971, para 48).

Lord Justice McNair also observed : Before I turn that, I must explain what in law we mean by "negligence". In the ordinary case which does not involve any special skill, negligence in law means this : some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action.

59. In Bolam v. Friern Hospital Management Committee (supra), Lord McNair said :"..........I myself would prefer to put it this way : A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men in that particular art.

68. A three-Judge Bench of this court in Bhalchandra alias Bapu& Another v. State of Maharashtra AIR 1968 SC 1319 has held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in 33

72. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):-

36

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

82. The Privy Council in John Oni Akerele v. The King AIR 1943 PC 72 dealt with a case where a doctor was accused of manslaughter, reckless and negligent act and he was convicted. His conviction was set aside by the House of Lords and it was held thus:-

41

(i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.;

(ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation.... There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime.

(iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion....The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck."

The Hon’ble Apex Court in the judgment titled as “Kusum Sharma & ors. Vs. Batra Hospital, Civil Appeal No.1385 of 2011, decided on 10.02.2010 had discussed the above facts regarding medical negligence.

12.           After going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be allowed, for the reasons to be recorded, hereinafter.

13.           The core point to be determined before us is as to whether there was any medical negligence on the part of the treating doctor(s). The answer to this question is in the negative.  To begin with, this Commission taking the Emergency History Sheet submitted by Fortis Hospital into cognizance, takes note of the diagnosis rendered by Dr.R.K.Jaswal for the patient i.e. Sh.Subhash Chander Kakkar. The patient/complainant was admitted on 13.08.2005 with acute stenosis with three arteries, acute onset of right sided chest pain and also a known history of hypertension. He first admitted himself in PGIMER, Chandigarh, where he was thrombolysed but the said procedure did not relieve him from the pain. Dr.R.K.Jaswal of the Fortis Hospital, after going through his part health history, conducted selective coronary angiography upon the patient including deployment of a stent in the RCA (Right Coronary Artery). The patient made the payment of Rs.2,77,439/- to Fortis Hospital, Mohali. The respondent/complainant visited Dr.R.K.Jaswal of Fortis Hospital, Sr. Consultant many times for follow up/consultation. He was assured that there was absolutely no problem with the heart, as the problem had been encountered via PTCA (Percutaneous Transluminal Coronary Angioplasty). In December, 2005, the complainant felt some discomfort and visited some other doctor at Chandigarh and on his advice, he got ECG, Lipid Profile and Tread Mill Test (TMT), which was conducted on 21/22/12/2005 and found that TMT test was positive. He, thereafter, consulted Dr.R.K.Jaswal of Fortis Hospital, who advised him to check angiography but he refused.  The complainant found out from another doctor at Chandigarh that out of the three main arteries which had blockage to the extent of 90%, 90% and 95% respectively, the procedure had been accomplished only on one artery by stenting and the remaining two arteries had been left choked, which disease is called as Tripple Vessel Disease. The main grievance of the respondent /complainant is that the treating doctor Dr.R.K.Jaswal of the Fortis Hospital did not consult him and neither took any consent for conducting stenting procedure in one of the arteries and not including the other two. His averment is that the doctor had ignored conducting byepass of remaining two arteries, which were choked, though the said option was available to him. The patient/complainant further averred that his case was not that of an emergency and the doctor could have taken a decision in a normal course time whether to do stenting or to do a byepass surgery. He further averred that the said decision taken by Dr.R.K.Jaswal was one of unfair trade practice, just for charging a heavy fee on doing a stenting on single blocked artery, though there were three blocked arteries in total.

14.           In the instant case, the doctor of the appellant hospital had performed stenting procedure to the best of his skills and medical acumen. The patient/complainant came to the hospital with signs of acute chest pain. The doctor had categorically stated that emergency angioplasty is performed of the involved vessels, if the complainant had ongoing angina (chest pain), hypotension, LVF/arrhythmia. The said chest pain was radiating to right arm of the respondent/complainant. The treating doctor was well aware of the fact that the patient was suffering from tripple vessels disease. According to the said doctor, angioplasty and stenting of right coronary artery and left anterior descending artery or CABG, both are possible mode of treatment. The decision to go for angioplasty and stenting or CABG depends on individual after he has been explained both options in detail. In this case, a written consent was taken from the patient himself and his wife, which are annexed as Annexures R-1 & R-2. The doctor can use his discretion and come to a judgment as what is the best course of treatment for the patient. In this case, the first duty of the doctor was to salvage the heart muscle of getting rid of accrusion and, therefore, culprit vessel needed immediate clearance to increase the blood flow supply to the heart. Therefore, we find no fault in the procedure adopted by the doctor of Fortis Hospital, Mohali in performing PTCA, which was big step to save the life of the respondent/complainant. Therefore, the contention of the respondent/complainant that the doctor has failed in his duty and has performed stent only in one vessel does not hold good. Moreover, it is a fact that the respondent/complainant is hale and hearty even as on date after getting the stenting done way back in August, 2005 i.e. 14 years ago. Further, there are no records to prove that any stenting/procedure was performed in the other two arteries.  

15.              In the consent form procured from the respondent/complainant by the appellants/Hospital, there is a mention of one Dr.Baljeet, who was alleged to have been known to the respondent/complainant by the appellants, to which, the respondent has filed an affidavit of Dr.Baljeet saying that he is in no way acted with the respondent/complainant. Since the appeal is liable to be allowed in favour of the appellants, so the said affidavit of Dr.Baljeet does not hold good.

16.              Further, it is observed from the array of the parties that there is a mention of Fortis Hospital (City Centre) through its center manager, SCO No.56-57, Sector 9-D, Madhya Marg, UT, Chandigarh, has been impleaded alongwith Fortis Hospital, Mohali. We find from the records that no cause of action has arisen at Fortis Hospital, City Centre, Chandigarh, whereas, the entire cause of action arose with Fortis Hospital, Mohali, which means that the appellants had enough reasons to state that there is a reason to allow the appeal on lack of territorial jurisdiction. Since the appeal is allowed, on merits, the abovementioned point is also taken note of.

17.           In view of above, this appeal stands allowed and the impugned order is set aside.

18.           Certified Copies of this order be sent to the parties, free of charge.

19.           The file be consigned to Record Room, after completion.

Pronounced.

15.07.2019.                                                                                        

                                     

[JUSTICE JASBIR SINGH [RETD.]

                                                                                 PRESIDENT

 

                                                                                               

[PADMA PANDEY]

MEMBER

 

 

[RAJESH K. ARYA]

MEMBER

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