Per Justice Mr.S.B.Mhase, Hon’ble President  

1.       Both these appeals are heard finally at the stage of admission with consent of both the parties.

2.       Original complaint no.113/2004 was filed by respondent nos.1 to 4 in both the appeals against appellant in Appeal no.263/2009 and A/266/2009.  In the said complaints respondent in both the appeals are the complainants and for the sake of brevity they are referred to in this order as “complainants”.  The original opponent no.1- Sadhu Vaswani Medical Complex, Inlaks & Budhrani Hospital & Research Centre has preferred First Appeal no.266/2009 and the original opponent no.2- Dr.Sanjeev Sunilkumar Gupta has preferred First Appeal no.263/2009.  In Appeal no.263/2009 the original opponent no.1 is respondent no.5 and in Appeal no.266/2009-original opponent no.2 is respondent no.5. However, for the sake of brevity and convenience appellant in A/266/2009 is hereby referred to as ‘opponent no.1’ and the appellant in Appeal no.263/2009 is hereby referred to as ‘opponent no.2’.

3.       Complaint no.113/2004 was filed by the complainants before the District Consumer Forum, Pune making grievance in respect of medical negligence of both the opponents. The said complaint was allowed by the District Consumer Forum, Pune by order dated 03/2/2009.  By this order the opponents are held jointly and severally responsible and are directed to pay to the complainants jointly an amount of Rs.5 lakhs within a period of two months from the date of receipt of the order, failing which, they shall be liable to pay the amount of Rs.5 lakhs together with interest thereon @ 9% p.a. as from the date of this order till realization of the sums by the complainants.

4.       Admitted facts in the present case are as follows:-

Complainant nos.1 to 4 are the heirs of deceased Mr.P.S. Velayudhan. Complainant no.1 is a wife of deceased.  Complainant nos.2 and 3 are the sons of the deceased and complainant no.4 is a daughter of the deceased. According to complainant negligence on the part of the respondents is a cause of death of P.S. Velayudhan.  On 30/9/2002 complainant nos.1 & 4 had taken deceased Mr.P.S. Velayudhan to Dr.M.Durairaj and after examination Dr.Durairaj was of the opinion that the deceased patient required a further treatment and 72 hours observation. However, Dr.Durairaj was leaving out of station and, therefore, Dr.Durairaj referred the deceased patient to opponent no.1 hospital with a reference note of Dr.Durairaj.  The said letter dated 30/9/2002 by Dr.Durairaj was addressed to C.M.O. of opponent no.1.  It is stated in the said letter, “Admit P.S. Velayudhan under Dr.Sanjeev Gupta in ICU semi private bed. He has ACS (Acute Coronary Symptom) in the setting of hypertension.  In the said reference note Dr.Durairaj has suggested Injection Clexane 0.6 ml Sc x 12 hours, I.V.Glucose drip to maintain B.P. and Tab Nikoran 5 mg 1-1-1.  In view of this deceased was admitted in the opponent no.1 hospital at about 19.16 hrs.  It appears from the case papers that the case was seen by CMO and it was noted that the patient is suffering from giddiness, vomiting and heaviness in chest since morning and known case of hypertension on treatment since 4 years.  No history of Diabetes mellitus/ Ischemic heart disease.  Then the pulse, B.P. etc. has been recorded and Dr.Sadiqua Maniyar has made an endorsement of I.V. Line on admission and signed it. Thereafter, at 7.30 p.m. further notings are made to the effect that the 72 year old male, a smoker abstained 15 years, a known hypertensive since 4 years on T.Amlog -2.5 mg O.D, Stress Capsule-I OD and T.Alivan -1 HS come with H/O heaviness in chest since today morning associated with giddiness and pain in both upper limbs and nape of the neck.   We need not go into much details.  What we find that after the patient was initially seen by CMO, the further history has been noted in the ICU. It further appears that in the margin there are remarks in respect of some examination of the blood and x’ray to be taken.

5.       At 8.50 p.m. the patient was seen by Dr.Gupta under whom patient was admitted under reference letter of Dr.Durairaj.  Case papers shows that patient was seen by Dr.Gupta.  That endorsement is made by Dr.Farid Shaikh. It is stated that Hold Antihypertensive.  Except this Cardiologist Dr.Gupta has not given any other orders.  At 9.45 p.m. it appears that the patient made a complaint about Headache.  However, general condition was stable.  The pulse of the patient was 95 and respiration 36. It is noted that the patient is conscious, oriented, etc.  Said endorsement is made by Dr.Farid Shaikh.  Then there are notings in respect of blood test.  It appears that Dr.Farid Shaikh had administered Injection Tramazac-50 mg stat and Injection Lasix-40 mg Stat and, accordingly, Dr.Farid has signed the entry. At 11.15 p.m. the difficulty with the patient started. Noting shows that the patient suddenly had a cardio respiratory arrest and Cardio Pulmonary resucitation started and continued.  It appears that the Injection Adrenaline 1 ml + 1ml was given.  Endotrachia tube with 85 ETT tied at 24 cm mark.  Again Injection Atropine-1 ml stat and, thereafter, patient is kept on ventilator. V.C.Mode F.O2-100%. I.V.Dobutamine 3.6 ml per hour, Lanoxin -0.25 mg stat and hold and 1 after 6 hour.  It further appears that Injection Calmpose 10 mg Stat 5 mg 4 hourly, Injection Pavulon -4 mg 6 hourly, LIQ Sucralfate, 10 ml QID MOISOL eye drops-QID, Dopamine-20 ug per hour, Injection Lasix -40 mg, After BP 100 mm Hg, RT, Foleys.  This endorsement was made by Dr.Shubhada.  Thus, all these treatments which were given at 11.15 p.m. was by Dr.Shubhada. 

6.       Then there is entry of 12.30. It is seen that patient had bradycardia HR 31/mt BP not recordable.  Injection Atropine 0.6 mg + 0.6 mg Stat I.V. Adrenaline 5 ml per hour To titer and BP Ct rest.  Informed Dr.Gupta about condition.  Said entry has been signed by Dr.Farid.  Then there is immediate entry signed by Dr.Farid, advised Hold Lanoxin rest ct all and at 1.00 a.m. there is entry B.P. was not recordable, Pulse 42 per minute.  This entry is signed by Dr.Farid. Then there is immediate entry Rx Adrenaliine-10 ml per hour, Injection Atropine -2 amp signed by Dr.Farid.  Then there is entry of constantly brady cardiac, Injection Atropine, 2 amp I.V. stat signed by Dr.Farid.  Then there are endorsement ECG-CHB (Complete heart block) informed Dr.Bhise and informed Dr.Gupta.  Rx External Pace maker to be kept till internal pacing.  Informed Dr.Bhise about patient and about internal pacing.  Said entry had been signed by Dr.Farid and at 1.30 a.m. in the night patient had a cardiac arrest Pulmonary oedema on chest X ray.  Spoken with son and wife, declared dead.   Cause of death, Pulmonary Oedema due to unstable angina signed by Dr.Sanjeev Gupta.  These were the advices and orders given by the doctors who were attending ICU unit and actually treatment is given by the nursing staff.

7.       What is important to be noted is so far as these case papers are concerned, that it appears that the patient had become serious at 11.15 p.m. and, thereafter, patient died at about 1.30 a.m.  The treatment which is recorded from 11.15 p.m. onwards appears to have been advised by Dr.Shubhada. It also appears that Dr.Farid was also accompanying with her because entries at 1 o’clock are signed by Dr.Farid.  It is further to be noted that Dr.Farid appears to be attending the patient since 7.30 p.m. from the case papers.  It further appears that he accompanied Dr.Gupta at 8.15 p.m.

8.       After the death of the patient the complainants demanded the case papers from opponent no.1 and case papers were given by opponent no.1 though documents which were maintained by the nursing staff were not given to the complainant.  In this case in order to prove that there was negligence on the part of opponents, complainants have filed affidavits of 4 complainants and the affidavit of Dr.Durairaj and affidavit of Dr.Laxman Govind Pherwani. As against that evidence, by way of refutal evidence affidavits of opponents have been filed.  These affidavits are of opponent -Dr.Gupta and other expert Dr.D.K.Mitra.  Opponents have also filed affidavit of CMO-Mr.Sunil Nath.

9.       While considering the probative value of those affidavits, District Consumer Forum has observed that those affidavits are affidavits against affidavits and thereby, ignored to consider the said affidavits.  Such approach on the part of the District Consumer Forum is not proper and just.  Because in any case where parties are directed to lead evidence by way of affidavit, parties will be filing an affidavit against each other on the basis of complaint and the reply version and the documents supporting them. Therefore, on such ground affidavits cannot be ignored. District Consumer Forum is supposed to consider the affidavits and the probative value of the affidavits and has to evaluate how far the case made out by parties has been established.  Thus, affidavits is a matter to be scanned by the District Consumer Forum.  What we find that the District Consumer Forum should have considered the affidavits on record. 

10.     In the present matter, admittedly complainant no.1 & 4 were along with the deceased. Both these complainants had taken deceased to Dr.Durairaj, who had advised them to admit deceased with respondent no.1 under Dr.Gupta and, accordingly, said patient was admitted in the said hospital.  Both these lady complainants were with the patient till patient expired and, therefore, both of them were having personal knowledge as to what was going on in the hospital and in ICU unit and, therefore, affidavits to that effect are required to be relied upon and accepted upon.  What is important to be noted is that the fact that the patient was admitted at 7 o’clock on 30/9/2002 and said patient expired on the said night at about 1.30 a.m. on 01/10/2002 is an admitted position.  What we have to find out is that as to whether there is negligence on the part of respondent nos.1 & 2 while treating the said patient. Apart from the affidavit of complainant no.1 & 4 there is opinion of Dr.Durairaj on record and also an affidavit of Dr.Durairaj on record.  This carries importance because deceased was initially patient of Dr.Durairaj and since Dr.Durairaj was going out of station, he suggested complainants to get the patient admitted with O.P.No.1 and after perusal of the case papers which were given by the opponent no.1 to the complainant, he has given an opinion that his patient was not properly looked after by the opponents. He has recorded his opinion to the effect that after the patient was admitted at 7 o’clock in the hospital till 8.50 p.m. no treatment was given by opponent nos.1&2 to the said patient.  He has found that the treatment started only after the Dr.Sanjeev Gupta had seen the patient at 9.45 or 9.50 p.m. and, therefore, he has come to the conclusion that his patient suffering from Acute Coronary Symptom was not properly looked into. He has observed that the said patient required urgent treatment and it appears that the staff on duty had neglected the said patient.  In order to substantiate this opinion, Dr.Durairaj has also filed an affidavit.  There is also affidavit of Dr.Laxman Govind Pherwani.  That affidavit states that in what manner patient could have been properly treated.  What we find that to counter affidavit of Dr.Pherwani, there is another affidavit of Dr.Sanjeev Gupta –opponent no.2 and of Dr.D.K.Mitra.  If we look to these three affidavits, these three affidavits only speak in what manner proper treatment could have been given to the patient and the affidavit filed by Dr.Gupta and Dr.Mitra go on justifying in what manner treatment given by the hospital was proper. 

11.     We are aware that medically there may be different ways to treat the patient.  Therefore, if the doctor at particular time selects one of the methods and treat the patient that cannot be said to be negligence of doctor.  Possibility of multiple ways of the treatment of the patient and selecting one of them cannot lead to the inference negligence on the part of the doctor.  This is well settled principle which can be inferred from various judgements of the apex court.  Therefore, Dr.Gupta’s affidavit along with expert affidavit of the complainant Dr.Laxman Govind Pherwani and Dr.Mitra that way are of no help to come to the conclusion as to whether opponent nos.1 & 2 were negligent or not.  What is important to be noted from the affidavit of Dr.Gupta, under whom the patient, was admitted, has stated that on that day he was on duty upto 4.00 to 4.30 p.m. and after the duty is over he has left the hospital and, thereafter, patient was admitted with opponent no.1.  He admits that he came at 8.50 p.m. and examined the deceased.  From the noting made by Dr.Farid, it appears that Dr.Gupta has only advised to withhold Antihypertensive drugs.  Thereby, what we note that the patient was taking Antihypertensive drugs namely Amlog as per his earlier doctor’s advice, that was directed to be stopped by Dr.Gupta.  Except this, since the patient was suffering from Acute Coronary Symptom, he has not advised any other treatment and there are no orders issued by Dr.Gupta on record except the above referred order.  It is an admitted fact that patient was examined by Dr.Gupta only once. Dr.Gupta has left the hospital keeping the patient under supervision of the ICU unit doctors and nurses and Dr.Gupta was not available in the hospital.  It only appears that he came to the hospital at 1 o’clock or 1.30 a.m. when he declared that the patient is dead after informing patient’s relatives and signed the papers.  What is important in this matter looking to the opinion of Dr.Durairaj is that as to what was the treatment given to the patient from 7 o’clock upto 9.45 p.m. Before we scan case papers from that angle we record at this stage that so far as case papers are concerned, case papers as supplied by opponents are accepted by the complainants except one entry on the said case papers which is made at 7.30 p.m.  That entry is signed by Dr.Shailesh Naik.  It is the following entry:-

“TPR/BP/10 chart Injection Clexane 0.6 mg. a/c BD Tablet Nikoran 5 mg. 1-1-1 signed by Dr.Naik”.

12.     This entry is under dispute and it is important for our consideration.  Because in a reference note which is given by Dr.Durairaj, Dr.Durairaj has suggested this Injection Clexane and tablet Nikoran to be started and the period was so far as injection was concerned 12 hourly and tablet to be given by 8 hourly.  This treatment was expected by Dr.Durairaj to be given to the patient on admission.  However, whether this was given by respondent no.1 on admission or not is a disputed question for our consideration.  Because, if we look to the opinion given by Dr.Durairaj, it appears that Dr.Durairaj has stated that such treatment was not given because according to him till 9.45 p.m. i.e. till Dr.Gupta comes, no treatment was given to the patient.  Therefore Dr.Durairaj has come to such conclusion in spite of said entry on the case papers.  While the case was being conducted in the District Consumer Forum it appears that certain documents especially documents of the nursing staff were produced before the District Consumer Forum.  It is to be remembered that these documents wee not supplied to complainants when complainant had demanded copies of case papers of hospital.  From the noting of the nurse who administered the drugs dealing with ICU unit it is revealed that the Injection Clexane and Nikoran tablets were given at about 9 o’clock. Even that hand written entry shows that injection Clexane was given at 10.00 p.m.  Said entry was scored and, thereafter, it was made 9.00 p.m. So far as tablet Nikoran is concerned, Nikoran is given at 8.45 o’clock.  What is important to be noted is that if as per the case papers the Injection Clexane was given at 7.30 p.m. by Dr.Naik then another injection was required to be given after 12 hours and, therefore, next injection round comes at about 7.30 a.m. on 01/10/2002 and, therefore, Clexane cannot be administered at 10.00 p.m. or 9.00 p.m. as shown in the papers of the Nursing staff because then it comes only within few hours that is less than 12 hours.  Same is in the case of Nikoran.  If the Nikoran is given at 7.30 p.m. then the second Nikoran cannot be given at 8.45 p.m. because 8 hours are not completed by that time.  This is one aspect. 

13.     Secondly, therefore either of the two entries is incorrect or false entry.  In this respect on the scrutiny of the arguments of both the sides what we have noticed that after the patient was admitted in the hospital, it appears that it was a time to take a night meal and, accordingly, meal was given to the patient, but it appears that subsequently, it was realized that patient is suffering from Acute Coronary Symptom and, therefore, it was improper to have full stomach and it would create a problem and, therefore, it appears that medicine Reglan and Rantac was decided to be administered. What is important is that the case papers submitted to the complainant and District Consumer Forum do not make a reference to both these drugs at any point of time.  However, on record prescription is placed by the complainant, that IPD prescription shows following things:-

Disposable syringe 5 cc. - 1

Disposable syringe 10 cc. - 2

          Injection Clexane 0.6 mg - 2

          Tablet Nikoran 5 mg - 10

          Loose gloves no.6½ - 2

          Injection Reglan - 1

          Injection Rantac – 1

13.     This prescription shows that injection treatment which was directed to be given by Dr.Durairaj on reference has been taken into consideration while giving this prescription but simultaneously, Injection Reglan and Injection Rantac was prescribed and these injections appears to have been given after the food was taken.  Complainant states that after this prescription they have brought injections of these prescribed material and, thereafter, Injection Reglan and Injection Rantac was given by the nurses. It therefore follows that injection Clexane and tablet Nikoran must have been given to the patient after those medicines are supplied by the complainant.  Normally, hospitals give their indent and procure medicines and give it to patients.  But whenever hospital do not have required medicine and procurement on the part of hospital is not possible, the doctor on duty or nursing staff gives prescription to patient’s relative and asks them to purchase medicine.  In this case, as stated above hospital doctor had given prescription.  This shows that opponent hospital at relevant time was not possessed of injection Clexane and tablet Nikoran. Ultimately, what we find that the entry which has been made by the Nursing staff appears to be correct namely Clexane and Nikoran were administered in between 9.00 to 10.00 p.m.  This appears to be proper one because had this treatment been given at 7.30 p.m. then repetition of this treatment at 9.00 p.m. was not possible.  What we find that Dr.Naik has given as per reference of Dr.Durairaj, but, thereafter, ICU staff has given treatment and, therefore, case which is tried to be made by the opponent that the treatment as suggested by Dr.Durairaj was immediately given is not correct and we do not appreciate it.  If this entry from the case papers is ignored then we find that from 7.00 o’clock upto 9.45 p.m. patient was only on I.V. and directions given by Dr.Gupta to withhold Antihypertensive is of no consequence because on that day anti hypertensive drug namely Amlog was already taken by the patient.  Therefore, that order of Dr.Gupta can be only implemented from next day.  Resultantly, what we find that till 9.45 p.m. no treatment was given to the patient except administration of I.V. fluid with Dextros.  Therefore opinion of Dr.Durairaj is correct and proper opinion. What is important is that immediately after patient has gone into serious condition Dr.Shubhada and Dr.Farid Shaikh looked after the patient  taking decision to give certain medicines.  Case paper shows only entry of informing Dr.Gupta at about 12.00 a.m. and 1.00 a.m.  However, from this it appears that Dr.Gupta advised to withhold Lanoxin, rest drugs were continued.  That means whatever treatment Dr.Shubhada and Dr.Farid Shaikh themselves have started that was only approved by Dr.Gupta except administration of Lanoxin.  In fact the things should have been other way.  That means when Dr.Shubhada and Dr.Farid found that patient is serious, they should have informed Dr.Gupta and, thereafter, Dr.Gupta ought to have given orders to them and, accordingly, patient should have been managed. Thereafter, patient appears to have become serious.  It was informed to Dr.Bhise –Cardiologist but he has not seen the patient.  Decision was taken by Dr.Farid Shaikh and Dr.Shubhada who were looking after ICU unit.  They were the doctors doing M.D. (Chest) and Dr.Farid Shaikh, MBBS and Diploma in TDD.  None of them were Cardiologist or expert in the heart.  What is important that the patient was declared dead with cause of death as Pulmonary Oedema due to unstable angina.  Analysis of Dr.Durairaj was Acute Coronary Symptom and the cause of death as given by Dr.Gupta appears to be Pulmonary Oedema due to unstable angina.  What we have to note that if the cause of death is given by Dr.Gupta is accepted then it contemplates that there was water accumulation in the heart and there was oedema and it was necessary to reduce oedema and treatment for the said purpose was necessary.  If we look to the affidavit which has been filed by Dr.Gupta he states in the affidavit that Tablets Lacix 40mg were administered in order to remove water from the body so that pulmonary oedema can be reduced. What is important that this treatment has commenced after 9.45 p.m. Till 9.45 p.m. there was no treatment to the patient.  Once it started at 9.45 p.m. at 11.15 p.m. patient became serious and ultimately, succumbed to the death.  What ICU In-charge has done after patient become serious is a different aspect to be considered.  What is important is that that patient reached to this stage and has become serious at 9.45 p.m. and the only reason follows is that the patient was not attended from 7 o’clock to 9.45 p.m. by Dr.Gupta and also by hospital staff.  What is important is that in fact as per reference note immediately on admission injections and tablets as suggested by Dr.Durairaj should have been given to the patient.  That was not done.  Those drugs were administered by the respondents at about 9.00 p.m. to 10.00 p.m.  Therefore, for a period of more than 2 hours patient was unattended and more specifically, there was no administration of any drug.  That means patient was simply admitted in ICU unit and hospital was waiting till Dr.Gupta comes and gives order in this respect because patient was admitted under Dr.Gupta. What is important is to be noted that Dr.Gupta has stated in his affidavit that he was on duty 4.00 p.m. Thereafter, he left the hospital.  After receipt of call, he came to the hospital and seen the patient at 8.50 p.m. and, thereafter, left the hospital and he has only given one direction namely to withhold Antihypertensive drugs.  This aspect we have already analysed. What is important for our purpose is that the hospital authorities if found that Dr.Gupta has completed his duty and was not available at 7 o’clock so as to admit under Dr.Gupta they should have informed relatives of the patient that Dr.Gupta is not available and whether they would accept any other Cardiologist and/or hospital authorities should have taken a decision to call Cardiologist who was on duty after Dr.Gupta has left the hospital and should have seen Cardiologist to examine the patient till Dr.Gupta come.  However, hospital authorities at least from affidavits on record do not show that any such attempts or efforts were made by the hospital authorities.  Therefore, if we take into consideration total documents of the hospital, what we find that the inference drawn by Dr.Durairaj that till 8.45 p.m. patient was unattended is justified inference and we accept the affidavit and the certificate given by Dr.Durairaj holding that both the opponents have failed to discharge their duty and, thereby, they are responsible for the death of the deceased.  What is important in this case is that all the papers which we have referred above they show that Dr.Naik, Dr.Farid Shaikh, Dr.Shubhada Tandale were the persons Incharge of ICU unit for from 7.30 p.m. till the patient died.  Opponents have not filed the affidavit of any of these doctors.  These affidavits were very much necessary on record because they were the persons who were having first hand knowledge.  Best possible evidence available with the opponents have not been brought on record.  That direct evidence which could have thrown light on the conduct of the opponents as to in what manner patient was diligently treated by them.  For the best reasons known to them they have suppressed such evidence from the District Consumer Forum and also from the State Commission and this direct evidence of these doctors was very much necessary for rebutting evidence of the complainant and Dr.Durairaj who has referred the patient to them.  Thereby it is very interesting case to note that when Dr.Gupta has examined the patient at 8.35 p.m. in fact he should have given detailed orders to the ICU unit staff and doctors.  However, there are no detailed orders except cryptic order that the protocol prescribed directing withholding of antihypertensive drug which is of no consequence that medicines were already taken by the patient. 

What is important is that at 1 o’clock there is endorsement that BP not recordable and pulse 42 and, thereafter, it is recorded CHB (Complete Heart Block).  Thereafter, information to be given to the doctor is only this much namely patient has expired and Dr.Gupta has certified that patient expired.   At 12.00 to 1 o’clock Dr.Gupta was informed by Dr.Farid Shaikh and some endorsement as stated above has been made.  Therefore, we also note that Dr.Gupta was not in constant touch with the ICU unit after he visited the patient at about 8.50 p.m. and one more thing requires to be considered namely doctors who were attending the patient in ICU were not specialized in the subject and thirdly, present Cardiologist Specialist who was on duty was never informed and his advice was never taken by the opponents.  Taking into consideration overall conduct and affidavit of Dr.Durairaj as expert opinion and affidavit of complainant nos.1 & 4 especially what we find that this is complete case of medical negligence on the part of both respondents/opponents viz.Hospital and Dr.Sanjeev Gupta as has been rightly held by the District Consumer Forum and, therefore, we do not find any substance in the submissions made by Ld.counsel for the appellant that due diligence and care has been taken by both of them and, therefore, appeal should be allowed.  All these submissions which are made by them in view of the admitted facts on record are of no merit.  Hence the order:-

                                      ORDER

Appeal nos.263/2009 & 266/2009 both  are rejected. 

Order passed by the District Consumer Forum is hereby confirmed.

Pronounced and dictated on Dais.

Copies of the order be furnished to the parties.