RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Complaint No. 58 of 2001

Ram Bali s/o Shri Raja Ram Kushwaha, adult,

R/o Dedupur, Post, Sambhalpur Block and

Thana, Cahubepur, Tehsil, Bilhaur, District

Kanpur Nagar.                                             ..Complainant.

Versus

1- Dr. Smt. Savita Luthra w/o Dr. S.K. Luthra,

    Adult, R/o Suraj Nursing Home Pvt. Ltd.,

    Makan no.117/N/65, Kakadev, Kanpur-208005

2- Dr. S.K. Luthra s/o Not known, Adult,

    R/o Suraj Nursing Home Pvt. Ltd., Makan

    no.117/N/65, Kakadev, Kanpur-208005

                                                                 …..Opp. Parties.

Present:-                                                   

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Raj Kamal Gupta, Member.

Shri A.K. Misra, for the complainant.

Shri  V.K. Misra, for the OPs.

Date  11.12.2017

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This complaint has been filed by the complainant against the OPs for payment of compensation of Rs.20,00,000.00 with interest. 

The case, in brief, of the complainant is that the complainant's wife Smt. Kamla alia Kamlesh Kushwaha was taken to the Suraj Nursing home of Dr. Smt. Savita Luthra, as she had felt pain in her abdomen on 29.4.2000. After depositing Rs.500.00 on the counter, his wife was admitted in the Nursing Home on the assurance of the OPs for completely curing her. Dr. Savita Luthra and her husband Dr. S.K. Luthra without making any investigation

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or X-ray, told the complainant that his wife's intestines were severely damaged and hence, an operation was necessary else she might die in a day or two. Thereafter, the complainant asked the doctors to save his wife and deposited Rs.750.00 and thereafter, X-ray was done in the Nursing Home itself but the report of the X-ray was neither divulged nor given to him. On 30.4.2000, the OPs again got Rs.3,500.00 deposited and got his signatures on certain papers and thereafter, started operating the abdomen of his wife. On 1.5.2000, on the assurance of curing his wife  soon, got Rs.2,629.00 deposited, but no receipts were issued. Till 4.5.2000, a sum of Rs.6,879.00, in all was got deposited by the complainant. From the evening of 3.5.2000, the condition of his wife started worsening and when in the night of 3.5.2000 and 4.5.2000 his wife was struggling for life, doctors were not available in the Nursing Hone, despite the complainant asking the nurse to call the doctors. On 4.5.2000, at about 1.30 in the night, considering the serious condition of the patient, the nurse put her on oxygen but the doctors did not visit the patient despite the complainant requesting for calling the doctors. Consequently, in the night of 4.5.2000 at about 3 o'clock the complainant's wife died. Thus, because of the negligence of the doctors and their absence, the complainant's wife could not be properly treated. Besides, no certificate of X-ray report and other receipts etc. were provided by the doctors. The OP doctors did not divulge as to what was the disease with which the deceased was suffering from and they never suggested for opinion of

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another experienced and competent doctor. Because of the negligence of the doctors that the complainant's wife died leaving the entire family in lurch. Hence, this complaint for awarding the compensation to the tune of Rs.20,00,000.00 with interest.

The OPs filed their WS submitting therein that the complainant's wife was admitted in the hospital in a very serious condition as a case of acute abdomen pain with distention with low general condition and this fact was communicated to the complainant and he was asked to be ready for operation and that no assurance of her complete recovery was even given. Besides, only Rs.50.00 was paid by the complainant as against normal payment of Rs.2,000.00 which was allowed purely on humanitarian grounds. The patient's examination and X-ray was done, charges of which were taken and report showed signs of perforation. The seriousness of the condition of the patient was explained to the complainant and after taking his requisite consent that the operation was conducted. It was after the operation that it was revealed that the uterus of the patient and large intestine were perforated, hence, a separate way of passing the stool was made. Since in such matters, infection is likely to spread to the abdomen and mortality in such case is very high, therefore, the seriousness of the matter was reported to the complainant as is the normal practice. The signature of the complainant was also obtained on the consent, from the complainant as is the normal practice before conducting any operation. No payment of Rs.2,629.00 was made and the complainant

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might have spent the amount in purchase of the medicines. No assurance of patient's survival was ever given due to seriousness of the case, though the OPs did their best to provide the requisite professional service and post operative care. The complainant was never asked to buy the medicines from the medical stores which was inside the campus of the Nursing Home. The OPs visited the patient daily for 3 to 4 times and proper medical care was taken which could be confirmed from the daily report duly signed by the Nurse Incharge and the OPs. Despite Oxygen given and proper care taken, the patient could not survive. Some times patient die despite the best efforts of the doctors but it does not mean it is due to the negligence or cheating as alleged by the complainant. Besides, the claim is highly exaggerated only to attract the pecuniary jurisdiction of the Hon'ble Commission. The OPs had properly performed the operation and had cleaned the faecal contamination and abdominal drains were put. Transverse colostomy i.e. artificial opening in the abdominal wall for passage of stool was made so that the repaired Sigmoid Perforation (Large Bowel) may have a better chance to heal. In spite of best efforts, the death rate in such cases is very high as per the medical  literature. It is wrong to say that receipts were not given. No supporting evidence in the form of medical expert has been filed for proving the medical negligence. The complaint has been filed for extracting illegal money therefore, is liable to be set aside.

          The complainant has filed his affidavit as also the

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receipts of the amount deposited by him in the Nursing Home and for purchasing the medicines and the amount spent on the pathological tests etc.

          The OPs have filed the affidavit of Dr. Savita Luthra and the medical prescriptions etc. alongwith copies of literature with regard to intestinal perforation etc. have been filed.

Heard counsel for the parties and perused the entire evidence on record.

In this case, it is not disputed that the complainant's wife Kamla alias Kamlesh Kushwaha was admitted into the Nursing Home of the OPs and that she was operated upon in the Nursing Home by the OPs and that she died during her treatment in the Nursing Home. The disputed point according to the complainant is that the OPs committed deficiency in service in treating the patient negligently in consequence of which his wife died whereas according to the OPs they treated the patient properly and carefully but as the condition of the patient was serious one, therefore, she died despite best efforts in treating the patient and therefore, they did not commit any deficiency in service. 

So, it is to be seen as to whether the OPs committed deficiency in service in treating the complainant's wife negligently. If so, it consequences. 

The complainant had got his wife admitted into the  Nursing Home of the OPs for treatment as she was suffering from stomach pain on 29.4.2000. The complainant had deposited Rs.100.00 on the counter whereafter the patient was admitted in the Nursing Home

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and that the complainant had paid Rs.750.00 thereafter and on 30.4.2000 deposited Rs.3,500.00 for the operation and that the operation was conducted on 30.4.2000. According to the complainant he had deposited Rs.2,629.00 on 1.5.2000 and had by 4.5.2000 deposited total Rs.6,879.00 in the Nursing Home for the treatment of his wife. It is the allegation of the complainant that from the evening of 3.5.2000, the condition of the complainant's wife started worsening and when in the night of 3.5.2000 and 4.5.2000 the complainant's wife was struggling for life then doctors were not present in the Nursing Home and despite the complainant asking the nurse to call the doctors they did not turn up. In the night of 4.5.2000 at about 1.30 o'clock considering the seriousness of the condition of the patient the nurse put on oxygen but the doctors did not turn up despite many requests of the complainant to call the doctors and that the complainant's wife died at about 3 o'clock in the night of 4.5.2000 itself. So the allegation of the complainant is that the complainant's wife was not properly attended by the doctors when she was struggling for survival and it is the case of the negligence on their part that the complainant's wife died. On the contrary, it is the case of the OPs that they had properly treated the patient and as the condition of the patient was very serious hence, an operation was conducted after taking consent of the complainant for the operation and despite best treatment provided to the patient, she did not survive, hence, they did not commit any deficiency in service. The OPs are harping mainly on the point that the condition of

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the complainant's wife was very serious one and in such cases of " acute abdomen and distension with low general condition", the mortality rate is very high as per the medical literature even though the OPs had repaired the ruptured uterus and also perforation of the large intestine and had cleaned faecal contamination (peritoneal Toilet), abdominal drains were put. Transverse colostomy i.e. artificial opening in the abdominal wall for passage of stool was made so that the repaired Sigmoid Perforation (Large Bowel) may have a better chance to heal. The abdomen was closed in layers with abdominal drains so that any remnant, infected fluid may pass out and not get accumulated in the abdomen. It is contended by the OPs  that in medical literature the death rate in such cases is very high, hence despite providing best treatment as mentioned above, the patient could not survive.

          It is vehemently argued by the ld. counsel for the complainant that firstly the doctor who performed the operation was not an expert one to do such a serious operation and secondly, the doctors did not attend the patient properly as they were not present when the patient was struggling to survive in the hospital and thirdly, without proper ultrasound etc. and the diagnosis of the real disease, the operation was conducted and therefore, there is obvious deficiency in service on the part of the OPs in treating the patient whereby she lost her life. The ld. counsel for the OPs has on the other hand vehemently argued that the doctors were skilled enough to do the operation and that they performed various tests before

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conducting the operation and that there was no let up in the post operative care of the patient and therefore, no negligence could be attributed to the OPs. In this regard, we find that the OPs have categorized the disease of "acute abdomen with distention with low general condition" as a serious one and Dr. Savita Luthra who performed the major operation was having the degree of MBBS & DGO. The OPs have not been able to provide a medical degree which could substantiate that Dr. S.K. Luthra was having a required medical degree/skill to perform a serious surgery for the disease as mentioned above. It is also noticeable that it is argued from the side of the OPs that the disease in question was having a serious morality rate and therefore, despite best effort of treatment given by them, the patient could not survive as in the case of such disease the mortality rate is very high. In this regard, the OPs have also filed literature in support of the aforesaid arguments of the INTERNET SCIENTIFIC PUBLICATIONS pertaining to Severe Intraabdominal Trauma in illegal Abortion, a case reported by G. Gole by U Santpur, R. Kaul wherein the case of illegal abortion and consequence thereof in the form of intestinal perforation which is a rare complication of induced abortion but it is not rare in our country, is dealt with and in that literature, it is mentioned that the causes of maternal mortality rate is 13% and it is found that infection is seen upto 51% of illegal abortion. Taking refuge under the aforesaid study, it is argued by the ld. counsel for the OPs that as the mortality rate in such cases is very high, therefore, the patient could not

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survive despite best treatment. But, we fail to understand as to how the aforesaid study has been made applicable in the case at hand as nowhere  it is mentioned that the disease of "Acute Abdomen with Distention with Low General Condition" was in consequences of illegal abortion of the deceased patient. There is also no specific literature to prove that the disease at hand "Acute Abdomen with Distention with Low General Condition", is the only consequence of an illegal abortion for which the study was made. In fact, no such diagnosis was ever made by the OPs while admitting the patient that it was a case of intestinal perforation as a case of induced abortion. Therefore, on the basis of the aforesaid study, it can not be deduced that in the case at hand of the disease mentioned above, the patient was at the risk of very high mortality rate. However, if for the argument's sake, it is agreed that it was a case with a very high risk of mortality rate then the question arises as to whether the OPs including Dr. Savita Luthra was competent enough to conduct the surgery of such magnitude. She was MBBS & DGO who could attend the Gynaecological problem but she was not expert in general surgery. She herself admitted that it was a case of acute abdomen and distension with low general condition when after X-rays, she came to know that report shows signs of perforation and the patient was critical she should have requisitioned the services of expert surgeon. But, when the laprotomy was performed on 30.4.2000 and if was found that this was a clear case of ruptures uterus and perforation of large intestine, she should have

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immediately requisitioned the services of expert surgeon available at that time because a gynaecologist is not trained to do the surgery of perforated intestine. No credible documentary evidence has been filed to prove that Dr. Savita Luthra was having the required expertise of skill to deal with such a serious case. Therefore, it appears to be a case where the OPs have gone beyond their expertise to deal with this disease and therefore, it appears to be the first point of deficiency on their part. Secondly, we find that in a very first document of medical prescription of 29.4.2000, the column of diagnosis is remaining unfilled which shows that without any proper diagnosis the doctors went ahead and did operation on the basis of the complaints made by the patient. Besides, we find that there has also been impropriety in providing the medical papers to the complainant and thereafter, when demanded by the Commission then too they were provided after a lapse of too much time and that too when the case was remanded back by the orders of the Hon'ble NCDRC passed in FA no.1160 of 2014 on 27.5.2015.

          While scrutinizing the treatment papers/continuation sheet of the patient, we find that the papers obviously appear to have been prepared subsequently as there is obvious difference in the continuation sheet of 29.4.2000 to 4.5.2000. On 29.4.2000, the patient sheet does not appear to have been signed by the doctor concerned and there is mention of "seen the Pt. by Dr. S.K. Luthra". Now we fail to understand as to why this endorsement has been made when the doctor could have very well signed the

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document, as is the case sheet dated 4.5.2000 where the doctor herself has signed. It is again noticeable that the continuation sheet dated 4.5.2000 makes mention of the proceedings done from 1 a.m. till death at 3 a.m., as is evident from page 14 of the continuation sheet filed with the affidavit of Dr. Savita Luthra but interestingly, another sheet dated 4.5.2000 is prepared and filed which shows the timings as to from 1.30 a.m. to 3 a.m. which appears to have been written by the doctor herself. Now there are two papers sheets of 4.5.2000, one appears to have been written by the staff or medical attendant and the other by the doctor herself. Obviously, there is a big question mark as to why these two documents of the same date and time were prepared and only reason that appears to stem out of the aforesaid anomaly is that the doctor was trying to prove her presence on that date i.e. 4.5.2000 and the time shown in the case sheet, as it was specifically contended by the complainant that the doctors were not present on 4.5.2000 when his wife was struggling for life and the oxygen was put on by the nurse and that the doctors did not turn up despite the complainant fervently appealing for the doctors to be called to see his wife,  therefore, the aforesaid two documents appear to have been prepared with the intention of showing that Dr. Savita Luthra was present at the spot whereas the proceedings were already recorded on the date and time wherefrom it does not appear that the doctor was present. It is also noticeable that right from 11.30 p.m. on 3.5.2000, B.P. of the patient was going down, as is evident that the deceased's B.P. was

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80/40 and thereafter, on 4.5.2000 at 1 p.m. it was 80/00 but the doctors neither appeared to treat the patient as has been stated by the complainant in his affidavit and there are reasons to believe the contention of the complainant in this regard. Therefore, there is another deficiency in service on the part of the OPs.

It is also noticeable that the original BHT and papers were not provided which also puts a question mark on the authenticity of the copy of the documents. Besides, it also appears that had the original documents were produced, then they would have gone against the OPs.   

          It is argued by the ld. counsel for the OPs that there is no expert opinion to show the negligence of the doctors and therefore, it can not be conclusively held that the OPs committed any deficiency in service. We find that it is a case where the doctors have not been able to justify that they were competent enough and have had the expertise to conduct the surgery of such magnitude and therefore, it is because of inept handling by the doctor who was not expert and skilled enough to conduct such an operation therefore, this case is of perse negligence on the part of the doctors. Besides, the manner in which without proper ultra-sonography etc., the surgery was conducted shows also the negligence on the part of the doctors.

          Thirdly, there is no evidence to show that the Nursing Home was equipped enough with life saving devices such as ICU, Ventilator etc. to deal with such a complicated surgery and post operative case therefore, in such a case the expert opinion was not at all required.

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          Ld. counsel for the OPs has cited III(2015) CPJ 163 (NC), C. Pratap Reddy & anr. vs. C. Jaypal Reddy & Ors., II(2002) CPJ 106 (NC), Prafulla Kumar Das vs. Apollo Hospitals & Ors., I(2013) CPJ 271 (NC), Mahernosh Kersi Khambatta vs. Venkatrama Nursing Home & Ors. and III(2012) CPJ 557 (NC), Swati Prakash Patil vs. Dr. Kiran Rajaram Vanasare & Anr., in support of his arguments that the OPs were not negligent but the facts of the  aforesaid cases are entirely different and have got no bearing to the facts of the instant case and therefore, the aforesaid case laws are not applicable to the facts of this case.

          In the instant case, a young lady of 32 years gets admitted in the Nursing Home of the OPs for pain in stomach and thereafter, she is operated upon by the doctors by merely x-ray and not doing ultra-sonography which was very essential for conducting such an operation and thereafter, because of not proper post operative care that she dies. The doctor who conducted the surgery was not specialized for the purpose and the justification for mortality was a very lame one given by the OPs that the risk in such a serious case was very high but they have not able to prove as to whether they provided best treatment as they were conspicuous by their absence in the night of 3/4.5.2000 when the patient was struggling therefore, it is a clear cut of deficiency in service on the part of the OPs and therefore, the Dr. Savita Luthra who conducted the operation and Dr. S.K. Luthra who is the owner of the hospital were liable for deficiency in service for the reasons recorded above.      

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          Now, it is to be seen as to how much compensation is to be awarded in the instant case. We find that the loss of life can not be compensated in terms of money. However, it can certainly mitigate the misery of the complainant to a certain extent. It transpires that the deceased had left behind her husband and two children. Considering the age of the deceased and the family of the complainant, we find it proper to award a compensation to the tune of Rs.5,00,000.00 and refund of Rs.6,879.00 the expenses incurred in the treatment as also cost of litigation to the tune of Rs.10,000.00.  

ORDER

The complaint is allowed. The OPs are directed to refund Rs.6,879.00 and pay Rs.5,00,000.00 as compensation for mental and physical trauma and also cost of litigation of Rs.10,000.00 to the complainant within 30 days from the date of this order, otherwise the OPs shall have to pay interest @ 9% p.a. on the total awarded amount.

Certified copy of the judgment be provided to the parties in accordance with rules.

                 (Vijai Varma)                 (Raj Kamal Gupta)

               Presiding Member                     Member

Jafri PA II

Court No.2