These two appeals, one Appeal No.381/99 filed by complainant Smt. Ramesh  Sharma and the other Appeal No.85/2000 filed by the opposite parties Tagore Heart Care and Research Centre Private Limited and four other doctors in original complaint No.28/98 are directed against the same order dated 25.0899 of the State Consumer Disputes Redressal Commission Punjab, Chandigarh.  Hence, both the appeals are being taken up together for consideration and disposal by this single common order.

          While the complainant is aggrieved on account of meager compensation of Rs.5000/- ordered by the State Commission against her claim of Rs.11 lakhs, the opposite parties are aggrieved, not so much on account of compensation awarded, but on account of reflection such an order would have on their excellent reputation especially when there has been no negligence on their part.

          For the sake of convenience we will refer the parties as complainant and OPs as arrayed before the State Commission.

          Facts of the case in brief are that sometime during 1996 Smt. Ramesh Sharma experienced some breathing problem and consulted one Dr. Pawan Gupta who advised her to consult a heart specialist.  On the suggestion of her son who is an Ayurvedic doctor, she contacted Dr. Vijay Mahajan of the OP No.1-hospital on 07.11.1996.  On the advice of Dr. Mahajan, TMT test was done which was found to be positive and therefore, Dr. Mahajan advised a Colour Doppler Test. Smt. Ramesh Sharma got the Colour Doppler Test done from Mann Scanning Centre.  After perusal of the Colour Doppler Test report, Dr. Mahajan advised angiography which was done in the OP-hospital on 24.02.1997. The complainant was, thereafter, informed that two of her major arteries were blocked and she was advised by-pass surgery by Dr. V.K. Sharma and Dr. Ramesh Chawla of the OP No.1 hospital on 02.03.1997.  The complainant was admitted and she was operated on the next day for the by-pass surgery by a team of four doctors headed by Dr. H.S. Bedi. After a marathon operation, she was told that the operation has been successful.  At around 02.00 PM she was shifted to the recovery room.

          As per the complainant, the problems and negligence on the part of the OPs started cropping up from the next day when the patient started complaining of severe pain in her legs and chest.  While the complainant alleges that due to excessive dose of antiseptic betadine lotion which was further compounded by omission on the part of the doctors to place the electric insulation pad under the legs of the complainant ; both her legs got burnt.  The burn wounds, even though were bandaged, did not heal and on the contrary started oozing out puss, making the life of the complainant miserable.

          The second allegation of the complainant is that OP doctors had been negligent in performing surgery in as much as they left a four inch x four inch soaking pad in the cavity of her chest which was the main cause of infection resulting in continuous oozing out of puss.

          The third allegation is that the OP doctors had removed a part of the vein from the left arm which was not used as it fell short of the length required for the by-pass surgery and was destroyed.  The wound in the left arm was also a cause of pain.

          Based on these three allegations of medical negligence, a complaint had been filed before the State Commission.  The State Commission after perusal of the evidence produced by both the sides and after hearing the counsel for the parties, came to the conclusion that the complainant had failed to establish that OPs had been negligent in performance of the by-pass surgery. The only count on which the State Commission awarded a compensation of Rs.5000/- relates to causing of burn on the legs which the State Commission has held to be an act of negligence on the part of the hospital staff and the doctors could not be blamed for this.  However, the State Commission ordered the compensation of Rs.5000/-  to be paid jointly and severally by the OPs alongwith a sum of Rs.1000/- as cost of litigation. 

          As stated earlier, it is against this order of the State Commission that both sides i.e. complainant as well as the OPs, have come up in appeal before us. 

          At the time of hearing, counsel for the complainant has confined his arguments only to the management of sternal wound infection.   He has contended that the opposite parties have been grossly negligent in conducting the by-pass heart surgery and in that operation they had left a soaking pad in the cavity under the sternum.  This resulted in infection of the wound which was the main cause of formation of puss.  The counsel contends that the State Commission  failed to notice and discuss this important aspect.  He further submits that non-healing of the wound for a prolonged period was the result of this negligence on the part of the operating doctors.              

          The counsel has referred to the x-ray report of 4.7.1997 which clearly establishes that there were only 3 wires left as on that date while normally, the sternum is bound by 5-6 wires and these wires are not required to be removed at all.   Contending that a series of operations were conducted to cover up the negligence, the counsel submits that the mediastinum is a closed cavity and the abscess was in the mediastinum part for which a C.T. Scan should have been done.  According to him, the medical records produced by the OPs were not genuine but had been subsequently manipulated.  The original records which mentioned everything had not been placed before the State Commission. Bed-Head tickets and the line of treatment produced by the OPs do not support the stand of the opposite parties that there was no abscess formation, since  X-ray and C.T. Scan report dated 20.7.97 clearly indicate puss formation.  Further, the x-ray report clearly indicated opacity.  Dimension and density of the opacity clearly suggested that there was something beyond normal suggesting that it was a foreign material in the form of a soaking pad; that in a subsequent x-ray after operations, the opacity was not visible clearly proved that the opposite parties had negligently left the soaking pad.

            Countering the contention of the opposite parties that it was a case of mediastinum abscess, the counsel argues that even if that had been so, a needle aspiration should have been undertaken which is a reliable, safe and accurate method of providing a definite diagnosis.  Even a C.T. Scan was advised only after more than four months.

          Referring to the contributory blame on account of delaying the plastic surgery for the healing of the wound, leveled by the opposite parties on the complainant, the counsel submits that plastic surgery could not have been undertaken when the wound had not healed and the abscess had not been removed.  This aspect was not appreciated by the State Commission, and therefore, it has erroneously held that there was no negligence in the conduct of the by-pass surgery.

          Referring further to the line of treatment and management of the wound to have support from very eminent Cardiac Surgeon Dr.Trehan, the counsel contends that Dr.Trehan’s name is being used as a cover.  Dr. Trehan has neither signed any paper nor have the opposite parties filed his affidavit.

          On the contention of the opposite parties that the affidavit of son of the complainant, who is an Ayurvedic doctor, cannot be treated as an expert witness, the counsel submits that in the absence of any cross examination, the State Commission should have treated his affidavit as expert evidence and not brushed it aside, especially, when he was a witness to the entire episode.

          In order to fortify his contention that the opposite parties have resorted to manipulation of the medical records in order to cover up their negligence, the counsel has referred to pages 148, 161, 162, 165 and 166 of vol.2 of their appeal and has pointed out that all these documents appear to have been prepared in one go and while the patient was treated during the year 1997, these documents bear the dates of 1998.  This, the counsel contends could not be an inadvertent mistake.  On the contrary it exposes their attempt to fabricate the documents.

          Finally, the counsel has referred to appeal No.85/2000 filed by the opposite parties and has contended that the same is not maintainable as it is barred by limitation.  It has been filed as an after thought, much after appeal against the order of the State Commission was filed by the complainant.  The counsel further submits that it was a case where there was no emergency and the OPs had all the time to plan the surgery properly.  They should have taken adequate care and precaution which should have been of the highest order.  They have certainly failed to do so as the complainant had to suffer for more than a year for the haste on part of the doctors and the negligence in the post-operative care. 

          Counsel for the opposite parties who are appellants in appeal No.85 of 2000, on the other hand, contended that their appeal is within time as they had received the order dated 25.8.1999 on 18.2.2000 and had filed the appeal on 16.3.2000.  We do not consider the objection of the complainant sustainable.

          On the merits of the case,  Ld. Counsel has addressed his arguments on all the three allegations made by the complainant before the State Commission, even though, Ld. Counsel for the complainant had not pressed on the point of burn injury suffered by the complainant on her legs and the injury resulting from the dysection of piece of vein from the left arm of the complainant which was not used.

          Referring to the allegation that antibiotic betadine lotion had been poured in excess quantity and the doctors forgot to place the cautery insulation pad under the legs of the complainant, as a result of which allegedly both the legs of the complainant were burnt, the counsel has referred to the emphatic denial of any admission in that regard by Dr. Bedi and has contended that the allegations and submissions made by the complainant are totally false ; in fact they run contrary to the medical practice and literature.   With regard to the placement of the electric cautery machine, the counsel contends that the cautery machine used in by-pass surgery is highly sophisticated and if there is a leakage of electric current, the machine gives an alarm and stops working.  Thus, it is the making of the complainant that the insulation pad of the machine was not placed.  Secondly, the pads of cautery machine during by-pass surgery are kept below the hips and not below the thighs.  The injury, therefore, should have been on the hips rather than on the thighs.  Further, there is a distinction between burn injury resulting from the electric contact and burns arising out of the reaction to lotions etc.  Burns as a result of electric contact  have a characteristic injury at point of entry and at point of exit which the complainant did not have.  The depth of the wound in electric burn is great at the surface whereas in this case,  the burn injury was superficial and area was just discoloured.  In this regard, counsel has referred to Orix text book of medical prudence and toxicology to support his contention. Relying on the same literature, counsel further submits that the chemical injury is painful and in principle, all forms of the well-known iodine induced allergic reactions are possible, but the instance is very low.  Further, referring to the text book of Adverse Drug Reaction by Davies MRCP (Annex.R-28) he contends that reaction to pervading iodine used for sterilization cannot be decided by any sensitive test before application.  The counsel, therefore, argues that since no test is available to ascertain any allergic reaction of betadine lotion, the superficial sores were the consequence of the application of betadine lotion as an antiseptic measure before the by-pass surgery.  It had no connection to the sternal wound and it was cured within few das.  He has further submitted that the State Commission has wrongly held this to be a case of negligence on part of the staff of the hospital ignoring the fact that the prime concern of the hospital staff at that point of time was to make a success of the coronary by-pass surgery on a high risk patient. 

          On the allegation that the piece of artery from the left arm of the complainant had been removed but the same was not used, the counsel had stated that while there is no doubt that the left radial artery and the left internal mammary were dissected, the intra operative Allen test, suggested poor collateralization for radical artery meaning thereby that the use of the left hand artery might cause damage to the hand and, therefore, in the interest of the complainant it was not divided or removed.  The complainant without appreciating that the operating surgeon had the choice of choosing the best option for which she had signed the consent form, made the baseless allegation which deserves to be dismissed.

          Referring to the allegation that a soaking pad of the size of 4” X 4” was left inside the cavity after heart operation, the counsel has contended this to be a desperate attempt on part of the complainant to establish his case and malign the reputation of the opposite parties as it was absolutely unthinkable that such a blunder could be committed by a speciality  institution where a team of renowned super-specialists operated on the patient.  Further, the affidavits filed by the opposite parties emphatically deny this accusation and it was open for the complainant to cross-examine the deponents which has not been resorted to.  In addition, the opposite parties have produced authentic medical literature which describe that sternal bone infection is the most common major infection specific to open heart surgery and it was not surprising that the patient was afflicted more so on account of being an obese lady.  It was because of the expert handling of the infection and management of the wound that the doctors were able to save the life of the complainant, the counsel contends.  The fact that during the visit of Dr. Trehan, a renowned cardiac surgeon to Jalandhar, the complainant was specially called and got examined by Dr.Trehan, speaks of the  care and attention given to the complainant by the opposite parties.  He further submits that apart from the regular dressing of the wound and debridement, the opposite parties have been advising the complainant to undertake plastic surgery for the proper healing of the wounds.  This was also the opinion expressed by the Dr. Trehan during his visit on 8.11.1997 but even thereafter it took more than three months for the complainant to get the plastic surgery done.  The fact that the complainant/patient responded to plastic surgery and the wound completely healed soon thereafter goes to prove that the treatment provided by opposite parties was on the correct lines.

          Referring to the contention of the learned counsel for the complainant that the opposite parties had not produced the original records and have manipulated exhibited documents, the counsel has submitted that these are not true.  Since the prime object was to make a success of otherwise an extremely  risky by pass heart  surgery, all out efforts were made to heal the wound in the post-operative phase.  The allegation that no C.T. Scan was done is belied from the contention of the complainant herself that it was only on the advice of Dr. Bedi  that a C.T. Scan was undertaken on 20.7.1997.  With regard to the allegation that the medical records at page 148, 161, 162,165 and 166 mentioned the year 1998 where as the incident  pertains to the year 1997 and, therefore, the documents are fabricated,  the counsel submits these to be only due to over-sight on part of the hospital staff in maintaining routine records e.g. temp. chart, dressing etc. and no weightage  be attributed to this genuine inadvertence.

          The counsel, therefore, submits that none of the allegations stand substantiated and the appeal of the complainant being devoid of any merit deserves to be dismissed while the appeal of the opposite parties deserves to be accepted as the minor side effect of antiseptic betadine lotion despite best precaution by the hospital staff cannot be termed as negligence.  Order of the State Commission has greatly upset the highly qualified super specialists and stigmatized  the renowned Heart Care Center despite a very successful operation of a complex coronary surgery.

          We have heard the lengthy arguments advanced by the learned counsel for the parties and have perused the records of the case minutely.

          At the out set, it may be stated that out of the three allegations of negligence namely :

(a) Excessive dose of antiseptic Betadine lotion and failure to place the electric cautery insulation pad below the legs of the complainant resulting in the burning of her legs ;

(b) removal of a piece of artery from the left arm of the complainant which was not used subsequently resulting in injury ; and

(c) negligence in the conduct of the by-pass heart operation whereby a soaking pad was left in the sternum ;

          the learned counsel has confined his arguments only to the negligence on the third allegation. 

          Since the counsel has not pressed the points at (a) and (b) above, we could take it that he does not consider these allegations worth pursuing.  However, dealing with the allegation of burn injury on the legs referred at (a) the State Commission while ruling out that there had been  any electric shock for the failure to place the electric cautery insulation pad under the legs, has all the same held the opposite parties negligent for the burn injury.  In its order, the State Commission states :-

“It may be observed that in the case of burns caused by electric current, the nature of the injury found would be different from the one as was found.  Reference be made to two photographs of the complainant showing such burns even after the operation.  A bare look at the photographs would show discolouration of the skin around the wounds that would prima-facie indicate the effect of the medicines used as is the case of the opposite parties.  Such discolouration of the skin around the wounds would not have occurred if wounds had been caused by electric shock from any wire or pad.”

“May be as is suggested that the burns were on account of reaction of the medicine, but it was expected of the opposite parties to properly soak such medicine before starting the operation.  The explanation offered that some parts of the body requiring personal touch are left un-attended cannot be accepted.”                      …………………………

“Thus, only causing of burn wounds on the legs on account of negligence of hospital and staff is established and not that there was any negligence on the part of the doctors performing the heart surgery.  Question is answered accordingly.

          Thus, while the State Commission holds the hospital staff and not the doctors negligent, it directs the opposite parties to pay a sum of Rs.5,000/- jointly and severally to the complainant.  If the doctors were not to be blamed then there is no reason to make them liable.  Further, in our view, considering that it was a case of open heart surgery on a patient with very high risk and the medical literature which the State commission has extracted in its order elaborately refers to such reaction due to allergy for which there cannot be any sensitivity test before application, the burn injury, which subsequently got healed within a few days, should not have been termed as negligence.  The State Commission appears to have wrongly presumed, without any evidence to establish that the ulcerations on the legs were due to excessive dose of betadine lotion.

          Coming to the main thrust of arguments advanced by learned counsel for the complainant pertaining to negligence in the performance of by-pass surgery, we find that the matter has been dealt with in detail by the State Commission in which the entire evidence produced by the complainant as well as the defense advanced by the opposite parties in their affidavits as also the medical literature on the subject have been thoroughly discussed.  The State Commission has come to the conclusion that the complainant, has,  failed to establish any negligent act on the part of the opposite parties in the matter of performing the by-pass surgery. 

          The counsel for the complainant has all the same vehemently argued that the State Commission has failed to notice that opposite parties have removed 5-6 wires used to bind the sternum and have undertaken a series of operations to cover up their negligence of having left a soaking pad in the cavity which is proved from the two x-rays :

 which first clearly showed opacity and later a clear cavity and, therefore, arrived at a wrong conclusion that there was no negligence.  This argument of the learned counsel has to be dis-believed since firstly on account of emphatic denial by the operating surgeon in their affidavits which have not been controverted by the complainant.  She has not cross-examined them. 

          Secondly, glaring inconsistencies in the statement of Dr.Shridhar Sharma who is the son of the complainant has to be taken note of.  Dr. Sharma at one place states that he himself saw short thread piece along with the puss coming out in the operation theatre while at another place, he has stated that the process was performed in the ward itself.  As rightly held by the State Commission, Dr. Sharma could not be present in the operation theatre nor could the operation to remove the ‘so called’ soaking pad  be done in the ward.  It is a sheer fabrication.

           On the allegation of manipulation of record on which the counsel has laid great stress, we have perused the records at pages 148, 161,162, 165 and 166.  Firstly, they are not in the same hand writing nor have they been prepared at one go.  Further,  the statement at page 165 bears both the dates of 1998  followed by 1997 on subsequent days.  These documents/charts in any case have been prepared for the purpose of recording the temperature, vital signs and other details etc. during the prolong period of hospitalization of the patient and, therefore, inadvertence if any, cannot be considered as substantive evidence to prove the case of negligence.  Besides, if the documents were prepared to cover up any culpable negligence in the original sheets why would they carry any discrepancy ?

          On the point as to why no needle aspiration was conducted to ascertain the cause of infection in the wound, the counsel for the opposite parties has contended that such a procedure was fraught with risks and the decision of the surgeon in the matter could not be questioned by the complainant who has no knowledge of  attendant risk.   We agree with this contention of the learned counsel.

          At the cost repeating part of the medical literature which have been discussed at length by the State Commission, we notice that the book Mastery of Surgery, at page 341 states as under :-

“Infected and Dehisced median Sternotomy.  An infected and dehisced median sternotomy is a devastating complication of cardiac operations, increasing greatly the morbidity and mortality among already debilitated persons.  The method of choice to treat infection and dehiscence includes immediate drainage of purulent collectness, debridement of devitalized tissues, and rewiring of the sternum over suction irrigation catheters.  A number of patients, however, do not respond to this treatment and require a more aggressive approach with radical debridement and immediate reconstruction with muscle or omentum, or both.  Redical debridement of all devitalized sternum, costal cartilages, ribs and soft tissues before the reconstruction is of paramount importance and is considered the key for a successful long-term reconstruction without recurrence of infection.”

          The case of the complainant fell into this category requiring more aggressive approach of treatment and the opposite parties had over a period not only did their best in not only dressing the wound regularly but also resorted to radical debridement of all the devitalized sternum etc.  and had repeatedly advised plastic surgery for the proper healing of their wound.  This was also the advice of renowned cardiac surgeon Dr.Trehan. The contention of the learned counsel for the complainant that plastic surgery could not be resorted to when the wound had not healed has to be rejected as according to him, when he finally went for plastic surgery 3½ months even after Dr.Trehan’s advice, the wound had not healed, but within a few days of plastic surgery, healing of the wound rapidly improved.  Thus, viewed from all angles no case of negligence is made out.

          While on this subject, we would like to state that it has by now been fully established from the various decisions of this Commission as well as the rulings by Hon’ble Supreme Court that in respect of alleged medical negligence, the burden heavily lies on the complainant to prove  such negligence.

          By its very nature, in cases of medical negligence, expert opinion/evidence would lend support which is absent in the case in hand.  The son of the complainant who is an Ayurvedic doctor being an interested party, his evidence has rightly been rejected to be an expert evidence by the State Commission.  Despite opportunity given by the State Commission, the complainant failed to produce any other expert evidence/opinion.  The complainant has also failed to cross-examine, the doctors who have filed their affidavits emphatically denying the allegations.  Thus, we cannot but hold that there has been no negligence in the case in hand as the doctors of the opposite party – hospital  have saved the life of the complainant in handling the risky heart surgery with great skill and care.  The fact that the complainant is leading a normal life even as of now, more than a decade after the surgery is good enough proof of the skill with which the complainant was attended to.  In this background, it would be unjust to blame the institution or the doctors. A reference in  this respect may be made to the relevant parts from Taylor’s Principles and Practice of Medical Jurisprudence – Thirteenth Edition, on the subject of medical negligence, which is as under :-

“Medical negligence is a complicated subject and the liability of the doctor will always depend upon the circumstances of the particular case.  The injury to the reputation of a member of the medical or dental profession resulting from a finding of negligence can be very serious indeed and this is  appreciated by the Courts.”

          Conscious of this dictum, we hold that the alleged medical negligence by the complainant does not stand substantiated.  FA No.381/1999 is, therefore,  dismissed being without any merit.

          In so far as the appeal of OPs is concerned, we are  of the view that the State Commission has erroneously held them negligent for the superficial burn injury on the legs of the complainant and has awarded a compensation of Rs.5000/-.  Though, the award may seem token,  in the facts and circumstances of the case, it cannot be said that there has been  any negligence worthy of censure.  Therefore, while allowing FA/85/2000, we set aside this part of the State Commission’s order.

          We leave it to the parties to bear the expenses of their respective litigation.