APPEARED AT THE TIME OF ARGUMENTS

PER DR. B.C. GUPTA, MEMBER

          This appeal has been filed under section 19 read with  section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 08.01.2007, passed by the Delhi State Consumer Disputes Redressal Commission, (hereinafter referred to as the State Commission) in consumer complaint No. 372/1997, vide which, the said complaint filed by the complainants 1 & 2 / respondents 1 & 2 Smt. Moorti Sharma and N.K. Sharma was allowed and the appellant/opposite party (OP-1) was directed to pay a sum of ₹ 2.5 lakh for the alleged medical negligence as well as the cost of litigation. 

2.       The facts of the case are that one J.P. Sharma was admitted in the Appellant Hospital on 05.08.1997 for Coronary Artery Blockage Grafting (CABG), commonly known as ‘cardiac bypass surgery’, under a package deal, evolved by the OP-2 & 3 Doctors.  He was operated on the very next day, i.e., 06.08.97.  As per the hospital, the CABG operation was performed successfully and after about a week, the patient was shifted out of the Intensive Care Unit (ICU).  On 16.08.97, the patient complained of severe/acute stomach pain.  The duty nurse was informed by the family members and requested to call the Doctors.  However, the OP-2 &3 were reported to have gone on vacation from 14.08.97 to 17.08.97.  It is alleged that the patient was attended to by Junior Doctors alone, although his pain got aggravated and he lost consciousness. On 16.08.97, the patient was shifted back to the ICU at night time.  It is stated that the patient was diagnosed as a case of acute pancreatitis.  There was no improvement in his condition and he ultimately died on 26.08.97 at 2:20 AM.  The complainants alleged that the untimely death of the patient occurred due to non-sterilised atmosphere and apparatus applied during the operation and in the post-operative period, that resulted in spreading of the infection.  It was also alleged that the patient was not given proper attention by the Doctors and the specialist doctors were not available at crucial time.  There was also wrong diagnosis/treatment given by the Doctors.  The consumer complaint was then filed by Smt. Moorti Sharma, wife and N. K. Sharma, son of the complainant, seeking compensation of ₹18.50 lakh for the alleged medical negligence on the part of the opposite parties. 

3.       The complaint was resisted by the OP-1 by filing a written reply before the State Commission, in which they stated that the surgery was performed upon the patient on 06.08.97 after thorough pre-operative investigation and check-up as per the package deal.  After a few days, when he was found fit, he was shifted to the High Dependency Unit and was looked after by the entire team of the consultant doctors.  It was only on the 11^th day of the operation that he developed pain.  It was due to acute relapsing pancreatitis.  The staff and doctors of the hospital did their best towards the patient, but he lost his life due to the said complication.  The OP-1 stated that the acute relapsing pancreatitis was a known, but not a common complication after cardiac surgery, as per medical literature.  The OP-1 stated in the reply as follows:-

“Medically, causes of upper abdominal pain especially after any open heart surgery using cardio pulmonary bypass machine may be upper abdominal muscular pain, post-operative stress gastritis, acute mild to moderate cholecystitis, colitis, constipation, pyclonephritis or cystitis.  Thus, procedurally pancreatitis is thought of only after the aforesaid cause of post-operative abdominal pain have been ruled out.  In this way, acute pancreatitis develops in a patient de novo and without any premonition and in such a condition by and large it only wait and watch position that is why this complication is also called ‘misnomer’.”

4.       It is the case of the Hospital that they had given the best possible post-operative treatment and care of the patient, as a result of which, he had remarkable recovery, and he was about to be discharged from the hospital, when he suddenly developed acute abdominal pain on the 11^th post-operative day.  All necessary tests, investigations, diagnosis were conducted and the requisite and proper treatment was given, after acute relapsing pancreatitis was detected immediately after the serum amylase report.  There was, therefore, no deficiency in service or medical negligence on their part. 

5.       The OP-2 doctor, Dr. Ganesh K. Mani, who performed the surgery upon the patient has also filed a written reply before the State Commission.  In addition to the version given by the Hospital, the said doctor stated that before going on leave, he had fully organised and instructed his entire team to look after the patient in his absence.  The acute abdominal pain was in no way connected to the CABG.  However, the patient was immediately attended to by the concerned doctors, who did everything possible to alter the downhill course of the patient’s condition.  The OP-2 also stated that the patient died of acute pancreatitis, which is an independent disease and not connected to the bypass surgery in any manner.

6.       The OP-3 doctor, Dr. Raman Puri also filed his written reply to the complaint and stated similar facts.  In addition, he also stated that the deceased had been informed that the OP-3 shall be away from Delhi from 14.08.97 to 17.08.97, and it was settled between the OP-3 and the deceased that the surgery shall be performed before his departure from Delhi.  During his absence, the patient was attended to by Dr. K.K. Saxena, who was of equal standing.

7.       In the rejoinder to the replies by the OPs, the complainant stated that a senior doctor, Dr. Baba Das was called after repeated requests on 18.08.97 at 4:30 AM, and he declared after examination that the pain was not due to post-operative problems, but was due to infection in the abdominal region.  It is alleged that during the period from 15.08.97 to 18.08.97, the junior doctors, did not seek expert opinion from any senior doctor.

8.       The State Commission vide impugned order observed that there was no material before them to show that there was medical negligence on the part of any of the doctors, who treated the patient.  However, the State Commission held the OP-1 Hospital guilty for deficiency in service in accepting the patient, when the senior doctors were out of town.  The State Commission also observed that no senior doctor was available to attend to the patient during the period 15.08.97 to 18.08.97.  The State Commission awarded a lump-sum compensation of ₹ 2.5 lakh to the complainant, including the cost of litigation vide impugned order.

9.       During hearing before me, the Ld. Counsel for the appellants stated that as brought out from the material on record, there had been no medical negligence on the part of the Hospital and the patient had been attended to by the senior doctors, even when the OP-2 doctors were out of town.  The State Commission had also observed that there had been no medical negligence on the part of any of the doctors.  The patient had died due to acute relapsed pancreatitis, which was not connected in any manner with the bypass surgery conducted upon him.  The order passed by the State Commission should, therefore, be set aside and the consumer complaint should be dismissed.

10.     Complainants 1 & 2/respondents 1 & 2 did not appear before this Commission despite sending notice to them.  The notice for their attendance was also published in the newspapers, but still they did not put in appearance and hence, were proceeded against exparte.

11.     On behalf of the respondent 3/OP-2 Dr. Ganesh K. Mani, it was stated by the Ld. Counsel that the said doctor had attended to the patient properly and his death due to pancreatitis, was in no way related to the procedure done by the OP-2.

12.     I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. 

13.     The basic issue that needs consideration in the matter is whether there has been any medical negligence on the part of the Hospital or the OP Doctors in the treatment of the patient in any manner, right from the date of the admission of the patient in the said hospital on 05.08.97, till his death on 26.08.97.

14.     The facts of the case as brought on record are that the patient J.P. Sharma had undergone the Coronary Artery Blockage Grafting (CABG) at the OP-1 Hospital on 06.08.97, which was conducted by the OP-2 doctor, Dr. Ganesh K. Mani.  It is also not disputed that the pain in the abdominal region developed on 15^th/16^th August 1997, as it is recorded in the medical record on 16.08.97 at 9 AM that the patient collapsed in bed, while trying to get up. 

15.     It is to be seen, therefore, whether from the time, the patient complained of abdominal pain etc., he was attended to by the doctors at the hospital properly and given adequate treatment or not.  A perusal of the medical record produced on file says that during this period, the patient was examined by various doctors from time to time.  It is stated that he was seen by Dr. Akhil Mishra from the Department of Nephrology, Dr. D.K. Bhargava from the Department of Gastroentrology, Dr. Raman Puri, OP-3, Dr. Lalita Sekhar from the Department of Internal Medicine, Dr. K.K. Pandey from the Department of Cardio and Vascular surgery etc. After conducting relevant laboratory investigations, he was diagnosed as a case of acute renal failure (ARF), which could be due to pancreatitis, hypertension, septicaemia.  A perusal of investigation reports revealed serum amylase 3480, lipase 88 mg/dl, urea 137 mg/dl, serum creatinin 2.0 and the total WBC count as 43800/cmm, which confirmed diagnosis of acute pancreatitis with renal failure. The medical record produced on file brings out that the Doctors at the said hospital, belonging to different specialities, made efforts to provide proper treatment to the patient, but his condition did not improve and ultimately, he died on 26.08.97.  

16.     The subject of medical negligence has been discussed in a number of landmark judgments given from time to time by the Hon’ble Supreme Court of India and this Commission.  In “Jacob Mathew v. State of Punjab [(2005) 6 SCC]”, the Hon’ble Apex Court, interalia, stated as follows:-

“(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ’duty’, ’breach’ and ’resulting damage’.”

18.     It is clearly stated in the above order that there are three essential components of negligence, namely, ‘duty’, breach of that duty and the resulting damage.  It has also been stated in this order that as per the definition given in the “Law of Torts”, Ratanlal & Dhirajlal (24^th Edition 2002, edited by Justice G.P. Singh), it has been elaborated that “duty” means a legal duty to exercise due care on the part of the party complained of, towards the party complaining about the former’s conduct, within the scope of the duty. 

19.     Further, in another landmark judgment “Kusum Sharma vs. Batra Hospital” [(2010) 3 SCC 480]”, it has been observed, interalia, as follows:-

“II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring 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.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

……………………………..”

20.     In the case in hand, the overall facts and circumstances of the case indicate that the patient was attended to by the Doctors of different specialities at the hospital, the diagnostic tests were done and treatment was given to him from time to time.  There is no evidence on record to prove or indicate that there was any negligent act in the performance of their duty, OR there was any element of duty in the chain of events that was neglected in the course of the treatment of the patient.  The element of medical negligence against the OPs is, therefore, not established, looking at the facts and circumstances of the case. 

21.     In the impugned order, the State Commission also brought out clearly that there was no material before them to believe that there was negligence on the part of any of the doctors who treated the complainant.  However, the State Commission stated that the stomach pain was possible, either due to the reaction of the drugs or infection and till 18.08.1997, no senior doctor was available to attend to the patient.  As stated above, there is no evidence to establish that the stomach pain was the result of any reaction of the drug or infection, resulting from the treatment of the patient in the hospital.  The appellant has also explained that a number of doctors from various specialities attended to the patient from time to time.

22.       From the foregoing discussion and keeping in view the orders made by the Hon’ble Supreme Court in ‘Jacob Mathews vs. State of Punjab and others’ (supra) and “Kusum Sharma vs. Batra Hospital” (supra), it is made out that the allegation of medical negligence against any of the treating doctors or the Hospital has not been proved.  The patient was seen from time to time by the specialists in various fields, when he developed the problem of pancreatitis.  There is no evidence to establish that there were deficiency in service of any kind in handling the patient and giving proper treatment to him.  This first appeal is, therefore, allowed and the orders passed by the State Commission in so far as it directs the appellant Hospital to pay compensation, is set aside.  Consequently, the consumer complaint stands dismissed.  There shall be no order as to costs.