JUSTICE V.K. JAIN, PRESIDING MEMBER

          Late Smt. Rupinder Kaur, wife of complainant No. 1 and mother of complainant No. 2 and 3 was admitted in Military Hospital where she was diagnosed with Appendicular Lump.  She was discharged on 04.2.2002 and suggested removal of Appendicitis after some rest and recovery period.  She was again admitted in the aforesaid hospital and was operated on 08.4.2002 by Lt. Col. P.K. Malaker, with assistance from Lt. Col. N.S.C. Waghray, an Anaesthesiologist.  On 10.4.2002, she complained of severe pain in the right lower part of her abdomen and also had mild fever.  In the night, she was shifted to the ICU for intensive care.  Since her husband was not satisfied with the answers given by the surgeon to his queries, he met Lt. Col. P.K. Malaker, along with Col. K.K. Tiku on 11.4.2002 when he was informed that the doctor was trying to control the infection, which had spread in the body of his wife.  On 11.4.2002, she was examined by Dr. Prapul Reddy of Apollo hospital, who visited the Military hospital for this purpose and was advised immediate surgical removal of the source of the septic.  Therefore, she was shifted to Apollo hospital and was operated late in the night on 11.4.2002.  The Laparoscope having failed during the procedure, laparotomy was performed on her.  The case of the complainants is that the anaesthesiologist could not bring the patient out of the effect of the anaesthesia and therefore, she had to continue with forced ventilation and other life support system.  She was then shifted to the surgical ICU of Apollo hospital but she continued to be critical till she expired on 27.4.2002.  It is alleged by the complainants that instead of removing the source of infection, Dr. Prapul Reddy just cleaned up the peritoneal cavity and  provided two drains to remove the pus, which could form in future, as a result of which the infection kept spreading even after the aforesaid procedure.  It is further alleged that the patient acquired secondary infections present in the hospital environment, besides developing bedsores and the doctors were negligent in her treatment, as a result of which a minor surgery resulted in her death.  The complainants therefore, approached the concerned State Commission by way of a consumer complaint instituted against the Apollo hospital, Union of India and Dr. Prapul Reddy.  No doctor of Military hospital was impleaded in the consumer complaint.

2.     In their written version, respondent No.1 Apollo hospital and respondent No.3 Dr. Prapul Reddy inter-alia stated that on examining the patient in Military Hospital, Dr. Reddy had opined that she was having peritonitis with septicaemia shock due to collection and spread of infected material in her abdomen as was evident from the ultrasound done in the Military hospital.  He therefore, felt that the patient should be operated through laparoscopic procedure.  Since the laparoscopic procedure was not available in Military hospital, she was shifted to Apollo hospital at about 9.30 pm on 11.4.2002, with the concurrence of the complainant and the concerned Commandant.  Her diagnostic laparoscopy showed distended bowel loops with inter- loop purulent collection in the pelvis.  Since the internal adhesions required to be released carefully without perforation and damaging blood supply, Dr. Reddy planned for laparotomy, which lasted about two hours.  Collection of infected material in the pelvis was noted and the small bowel was found distended.  Two small dark patches were also seen over terminal ileum.  No perforation of bowel was found, and the abdomen was closed after keeping two tube drains the patient was found to have derangements in her renal parameters which were taken care of by Nephrologist whereas the Cardiologist took care of her hypotension and tachycardia.  The patient died due to a cardiac arrest on 27.4.2002.  It was also alleged that the patient had undergone second surgery under the condition of the septicaemia shock from which she was not recovering and the procedure was a high risk procedure.  They denied the allegation that the laparoscopic equipment had failed during the procedure and alleged that it was in view of the internal adhesion that the procedure had to continue for two hours and the patient had to be on anaesthesia.  They reiterated that there was no perforation of bowels.  As regards the secondary infection, it was alleged that such infections are common in hospitals and cannot be eliminated even with the best care.  They denied that the patient had developed bedsores.

3.     In its written version respondent No.2 Union of India took the plea that the complainants were not their consumers as the services rendered to the wife of the complainant were free of charge.  They also took the plea that the liability of the Union of India being only vicarious, no such liability can be imposed on them without impleading the concerned doctor.  It was alleged that during the surgical procedure, adhesions of peritoneum with Caecum and Omentum were noticed along with Ileo Caecal adhesions and a small appendix which probably was gangrenous.  The adhesions were removed though the Caecum could not be brought out.  It was further alleged that when she was examined at 8 pm on 10.4.2002, she had mild abdominal distension and diffuse tenderness all over her abdomen and sluggish bowel sounds.  The impression formed by the surgeon was peritonitis with septicaemia or an intra-peritoneal bleed which could not be attributed to any negligence of the doctors.  It was further alleged that Dr. Prapul Reddy of Apollo hospital examined the patient in Military hospital and corroborated the diagnosis of septicaemia shock due to peritonitis and suggested shifting her to Apollo hospital for laparoscopy.  The laparoscopy under general anaesthesia started at about midnight of 11.4.2002 and revealed distended loops of small intestine with inter-loop collection of fluid purulent.  It was further alleged that due to camera failure the video laparoscopic procedure could not proceed and therefore, a midline laparotomy had to be resorted to.  It is further alleged that the additional time taken on account of conversion of laparoscopic into laparotomy was most likely to have caused excessive anaesthetic and surgical trauma to the patient.  It was also alleged that the source of leak was neither identified nor effectively addressed at the Apollo hospital and only a peritoneal wash coupled with placement of two drains was done during two hours of the procedure at Apollo hospital, though a diverting terminal Ilestomy should have been resorted to.  According to Union of India, an ill-advised laparoscopy, prolonged and unfocussed surgery, without addressing the basic problem and not performing a Diverting Terminal Heostomy as a remedial measure appeared to be major contributory factor leading to death of the patient.

4.     The State Commission vide its order dated 12.10.2007 directed the opposite party No.2 Union of India to pay Rs.3.00 lacs as compensation to each of the claimants besides Rs.5,000/- as the cost of litigation.  The complaint against the opposite party No.1 Apollo hospital and opposite party No.3 Dr. Prapul Reddy was dismissed.  Being aggrieved from the order passed by the State Commission, Union of India has approached this Commission by way of this FA/190/2008, whereas the complainants have approached this Commission by way of FA/412/2008.

5.     First Appeal No. 190/2008

        The first plea taken by the appellant Union of India is that the complainants are not consumers within the meaning of Consumer Protection Act as no charges were taken by the Military Hospital for the treatment of late Smt. Rupinder Kaur.  I however, find no merit in the contention.  In Indian Medical Association Vs. V.P. Shantha & Ors. 1995(6) SCC 651, the Hon’ble Supreme Court inter-alia held as under:

        “(xii)  Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital / nursing home would not be free of charge and would constitute ‘service’ under Section 2(1)(o) of the Act.”

        Admittedly, complainant No.1 Major J.P.S. Malhi being in Military service, late Smt. Rupinder Kaur was entitled to medical treatment in Military hospital and the expenses of the medical treatment in the Army hospital are borne by the Union of India, employer of Major J.P.S. Malhi. Therefore, it would be difficult to dispute that the complainants are consumers within the meaning of the Consumer Protection Act. 

6.     The next plea taken by the appellant Union of India is that the complaint against the Union of India is not maintainable, without impleadment of the treating surgeon namely Lt. Col. P.K. Malakar.  This contention cannot be accepted in view of the decision of the Hon’ble Supreme Court in Smt. Savita Garg Vs. National Heart Institute 2004 (8) SCC 56, where the Hon’ble Supreme Court expressly rejected such a contention, holding that the burden cannot be placed on the patient to implead all the treating doctors or attending staff of the hospital as a party so as to substantiate his claim.  It was further held that the hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, as the case may be, was not impleaded and therefore, the clam should be rejected on the basis of non-joinder of necessary parties.  It was further held that once the claimant has discharged the initial burden of proving that the hospital was negligent then burden lies on the hospital and the concerned doctor to prove that there was no negligence involved in the treatment since the burden is on the hospital they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegations that there was no negligence.  The Hon’ble Supreme Court held that the summary dismissal of the original petition by this Commission on account of non-joinder of necessary parties was not proper.

7.     This is also the plea taken by the appellant Union of India that the Court of Inquiry, being only a preliminary fact finding inquiry, the statements taken during the said inquiry could not have been relied upon without further proof and without giving opportunity for cross-examination of the witnesses.  I however, find no merit in this contention as well.  The case set out by the complainant is based primarily upon the deposition of the two Army doctors namely Lt. Col. Chandra Kishor Jakhmola and Col. G. Rajagopal.  Both of whom were its employees.  A perusal of the extracts from the report of the Court of Inquiry, held by the appellants themselves would show that the treating surgeon Lt. Col. P.K. Malakar was present during the course of proceedings and was given opportunity to cross-examine both the witnesses.  Moreover, Lt. Col. P.K. Malakar was also given an opportunity to place his case before the Court of Inquiry. Even Brig. Pruthviraj Rao, who was a representative of Military hospital, also cross-examined them.  Therefore, it cannot be said that the appellants had no opportunity to impeach and rebut the deposition of the above referred, public servants.  In the facts and circumstances, the State Commission, which follows a summary procedure, was justified in relying upon the testimony of the above referred doctors.

8.     In its counter-affidavit, Union of India, relying upon Rule 182 of the Army Rules, 1954 has inter-alia stated that the proceedings of the Court of Inquiry or statements made during the course of the said inquiry are not admissible in evidence and therefore, there is no evidence of the doctors of the Army hospital being negligent in treatment of late Smt. Rupinder Kaur.  Rule 182 of the Army Rules reads as under:

        “182.        Proceedings of Court of inquiry not admissible in evidence:

        The proceedings of a court of inquiry, or any confession, statement, or answer to a question made or given at a court of inquiry, shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respecting the proceedings of the Court be given against any such person except upon the trial of such person for wilfully giving false evidence before that Court.”

        Since the above referred rule does not place an embargo upon the statements made at a Court of Inquiry against the Government, the evidence given by Doctor Lt. Col. Chandra Kishor Jakhmola and Col. G. Rajagopal can certainly be used in a consumer complaint against the Union of India, for payment of compensation on account of negligence on the part of its employees in rendering services to a consumer.

9.     The next question which arises for consideration is as to whether there was any negligence committed by the doctors of Military hospital in treatment of late Smt. Rupinder Kaur.

        The first contention of the complainants in this regard is that despite two caesareans in the past Doctor Lt. Col. P.K. Malakar did not even direct ultrasonography of the deceased before undertaking her surgery and as a result he ended up causing injury to the posterior wall caecum and other adherent structure in vicinity of caecum.  This is also their case that the surgeon should have converted grid iron incision into Rutherford Morrison incision so as to make the operation wound larger and better accessible.  This is also their submission that a drain in retroceacal area should have been left, which was not done by him.

10.   As far the ultrasound is concerned, Col. G. Rajagopal in para 826 of the report of court of inquiry stated s under:

        “(c)    Not doing a pre-operative Ultra Solography of the abdomen must be considered a lapse.

        (d)    with the background of an Appendicular lump, with no road map in the form of a recent (prior to operation) USG of the abdomen, with the findings of adhesions and the need for dissection, leaving a drain was mandatory and in retrospect, this would  have changed the course of events for good, post-operatively.”

11.   The operating surgeon Dr. P.K. Malakar declined to cross-examine Col. G. Rajagopal however, the other witness Lt. Col. Chandra Kishor Jakhmola maintained that he would not have done USG as there was no history of recurrent fever, dysuria pain abdomen after resolution lump and moreover, clinically there was lump palpable.  When he was asked as to without USG how he could rule out small contained but infect lump clinically, he stated as under:

        “Any infected lump will have features of infection in the form of fever, malaise, raised TLC Count and pain abdomen.  In addition if the lump is in the vicinity of bowel, the patient may have symptoms of mucous diarrhoea.  Moreover, an intra-abdominal lump upto five cms in size can easily be palpated.  Normal USG does not necessarily rule out intra-abdominal lump due to overline gas shadows of intestine.”

        In view of the conflicting opinion given by Doctor Col. G. Rajagopal and Lt. Col. Chandra Kishor Jakhmola, I would not conclude that not advising USG before surgery of the patient was actionable negligence.  If two courses of action were available to the surgeon, one for prescribing USG before undertaking the surgery and the other for not going in for USG and rather going ahead with the surgery based upon the physical examination of the patient, the operating surgeon in my opinion, cannot be said to be negligent in performance of his duties.  Though, USG may have been a preferred course of action since it would have enabled doctor to perform the surgery more accurately, based upon the USG images, since there is no evidence of such surgery being totally contra-indicated without USG, the operating surgeon cannot be said to be negligent in the performance of his duties as a surgeon merely because he preferred one course of treatment over the other.  This is more so when viewed in the light of the following explanation given by Lt. Col. P.K. Malakar before the Court of Inquiry: 

        “(a)   In view of the patient being a symptomatic for over two months prior to the surgery, and clinically there being no palpable lump in the right ileac fossa and no pelvic pathology detected in the USG carried out by the gynaecologist and by the radiologist of MH during the last admission in the MH, I did not think it necessary to get an USG done prior to the surgery.”

12.   In his statement, during the court of inquiry Lt. Col. Chandra Kishor Jakhmola inter-alia stated as under:

        “(ab) A drain in retroceacal area should have been left especially in such difficult cases, where the operating surgeon has performed retroceacal dissection and was unable to find a mesoappendix and removed only a small remnant appendix one cm long.”

Doctor Col. G. Rajagopal in his statement before the Court of Inquiry stated, with respect to leaving drain, as under:

        “(d)   With the background of an Appendicular lump, with no road map in the form of a recent (prior to operation) USG of the abdomen, with the findings of adhesions and the need for dissection, leaving a drain was mandatory, and in retrospect, this would have changed the course of events for good, post-operatively.”

The following was the explanation given by Lt. Col. P.K. Malakar for not putting a drain before closing the abdomen:

        “(c)    As regards putting a drain prior to closing the abdomen, other than the reasons enumerated earlier in my statement, I would like to emphasize that if there had been a slightest amount of doubt I would have done so, as it takes only additional two minutes. My decision not to put a drain also took into account that it produces secondary infection, delay in would healing and may cause bowel necrosis and perforation n the retro-caecal wall.” 

        I am not at all satisfied with the explanation given by Dr. P.K. Malakar for not leaving the drain.  In view of the concurring opinion given by Doctor Col. G. Rajagopal and inquiry Lt. Col. Chandra Kishor Jakhmola, I hold that leaving a drain was mandatory when adhesions were found and the operating surgeon had not even got USG of the abdomen done before undertaking the surgery of the patient.  In the opinion of Doctor Col. G. Rajagopal, leaving a drain would have changed the course of event for good post-operatively.  In fact, Doctor Col. G. Rajagopal also stated that no leaving a drain was a major pitfall since it would have provided an exit route for collection, if any.  Therefore, I have no hesitation in holding that Lt. Col. P.K. Malakar was negligent in performing the surgery of late Smt. Rupinder Kaur by not leaving a drain after the surgery.

13.   This has also come in the deposition of Lt. Col. Chandra Kishor Jakhmola that since in such cases, there is a likelihood of inadvertently causing injury to the posterior wall of ceacum or other adherent structures in the vicinity of ceacum, it was desirable to convert the grid iron incision into Rutherford Morrison incision, so that operation wound could be made more large and accessible, thus giving sufficient room to the operating surgeon to carry out a comfortable retroceacal dissection.  He however, qualified the said statement by saying that the operating surgeon is the best judge to take this decision in difficult appendectomies.  In his statement Col. Malakar gave the following explanation for not converting the incision to Rutherford incision:

        “(b)   the time taken for converting a grid iron incision to Rutherford incision for a better access if required, it only takes approximately one minute.  As converting to Rutherford incision has the disadvantage of post-operative incisional hernia therefore, it is resorted to only when required.  In this case I did not feel the necessity of doing so because I was able to perform the required surgery through the same incision.”

14.   Considering the qualified statement made by Lt. Col. Chandra Kishor Jakhmola and the explanation given by Dr. Malakar himself for not converting the incision to Rutherford incision, I feel that not converting grid iron incision into Rutherford incision was not a case of negligence though it may be a case of an error of judgment on the part of the operating surgeon.

15.   For the reasons stated hereinabove, since Dr. P.K. Malakar was negligent in the treatment of late Smt. Rupinder Kaur, he having not left a drain in retroceacal area which was mandatory in the background of the Appendicular lump, findings of the adhesions and need for distention, particularly when no USG of the abdomen had got done by him before the surgery performed by him.  FA/190/2008 filed by Union of India is liable to be dismissed.

16.   First Appeal No. 412 of 2008

The case of the complainants is that Dr. Prapul Reddy of Apollo hospital was also negligent in the treatment of late Smt. Rupinder Kaur since (i) this was not a case suitable for laparoscopic surgery (ii) Dr. Praul Reddy did not resort to diverting proximal ileostomy which was necessarily required in this case and the camera of the laparoscope failed during laparoscopic surgery due to which it had to be converted into laparotomy, leading to patient having been kept under Anaesthesia for more than two hours, which resulted in infection/pus affecting her vital organs.  This is also the case of the complainants that the consent obtained from complainant No.1 for surgical procedure of Smt. Rupinder Kaur at Apollo hospital was tempered with.  The case of the complainants attributing negligence to Dr. Prapul Reddy in the treatment of Smt. Rupinder Kaur is based primarily on the depositions of Lt. Col. Chandra Kishor Jakhmola and Col. G. Rajagopal of Army hospital.  In the opinion of Lt. Col. Jakhmola, not diverting proximal ileostomy manifested in the pus discharge from the tube drains due to continuous bowel leak inside peritoneal cavity post operatively, thus causing constant state of septicaemia, culminating into death of the patient.  In the opinion of Col. G. Rajagopal, Laparoscopy was contra-indicated in the case of this patient and the time of two hours taken for surgery was too long to be acceptable. He also opined that ileostomy was mandatory as no perforation of the gut or source of leak was identified or indicated and two dark patches in the terminal ileum which could lead to further leak should have been brought out as a Diverting Ileostomy.  On the other hand, Dr. M.V. Ranga Reddy, General & Laparoscopic Surgeon did not countenance that the failure of video laparoscopy and performing laparotomy had resulted in increasing anaesthesia time and become fatal to the patient. In his opinion, if there was a failure of the video laparoscopy, the operating doctors can switch over to laparotomy which was a prudent choice in view of the precarious condition of the patient, particular when there was internal adhesions and distended bowel loop with inter-loop purulent collections.

17.   Admittedly, neither Dr. Lt. Col. Jakhmola, and Col. G. Rajagopal was produced by the complainant as a witness before the State Commission.  Admittedly, neither Dr. Prapul Reddy nor any other doctor from Apollo Hospital was associated in the Court of Inquiry held by the Army authorities.  Admittedly, neither Dr. Prapul Reddy nor anyone else from Apollo hospital had an opportunity to place their case before the Court of Inquiry, which relied solely upon the depositions of doctors from Military Hospital.  On the other hand, as far as Col. P.K. Malakar is concerned, not only he was associated with the Court of Inquiry he also had an opportunity to place his case before the said Court of Inquiry.  In my opinion, since neither Dr. Prapul Reddy, nor anyone else from Military hospital participated in the Court of Inquiry, it was necessary for the complainants to produce them as witnesses or to file their affidavits by way of evidence, before the State Commission, if they wanted to rely upon their opinions, in order to prove the negligence attributable to Dr. Prapul Reddy of Apollo Hospital.  That having not been done, Dr. Prapul Reddy and Apollo hospital had no opportunity to cross-examine them at any point of time.  Therefore, the statements of Lt. Col. Jakhmola and Col. G. Rajagopal cannot be read against Dr. Prapul Reddy and Apollo hospital.  If their statements before the Court of Inquiry are excluded from consideration, there is no expert evidence to prove the negligence attributed to Dr. Prapul Reddy of Apollo hospital, whereas he has produced an expert Col. G. Rajagopal in support of his case that there was no negligence on his part in the treatment of Smt. Rupinder Kaur.  I therefore, hold that the complainants have failed to prove the alleged negligence on the part of Dr. Prapul Reddy and Apollo hospital in the treatment of late Smt. Rupinder Kaur.  To this extent, the order passed by the State Commission does not call for any interference by this Commission in exercise of its appellate jurisdiction.

18.   As noted earlier, this is also the case of the complainants that the consent letter got signed from complainant No.1 at Apollo hospital has been interpolated at the said hospital.  I have perused the High Risk Consent taken from complainant No.1 Major JPS Malhi, husband of late Smt. Rupinder Kaur.  It is crystal clear from a bare perusal of the aforesaid document that additions have been made after obtaining the signature of the complainant No.1.  The words “tachycardia, tachypneic rate 50/min, on dopamine support’ as well as words ‘& procedure’ in para 1 of the above referred document have been inserted later between the original lines 2 and 4 of para 1.  Not only the letters are rather small as compared to the letters in line 1, 2 and 4 of the first paragraph, even the hand writing in which the above referred words have been written appears to be different.  Similarly, the words ‘septicaemia, hypotension even with dopamine 10 ug, Tachypnea’ in para 2 of the document seems to have been inserted at a later point of time.  Likewise, the words
‘patient may have mortality on table and may need post op ventilations’ in para 4 of the aforesaid letter appear to have been inserted at a later point of time.  The aforesaid additions in the High Risk Consent appear to have been made with a view to project that all the possible risks in the procedure were duly explained before obtaining the High Risk Consent and therefore the said consent was a well informed consent.  It therefore, appears to me that the High Risk Consent obtained from the complainant No.1 Major JPS Malhi was not that well-informed a consent, since the above noted words in para 1, 2 and 4 of the consent, had not been written by the time he signed the said High Risk Consent.  This in my opinion, amounts a deficiency on the part of the Apollo Hospital in rendering services to the patient, though there is no evidence to say that had these words been written initially itself Major JPS Malhi would not have given the said High Risk Consent.  The respondent Apollo hospital therefore, must pay compensation to the complainants for the above referred deficiency in the services rendered by them, as far as the obtaining of the High Risk Consent is concerned. 

19.   As far as quantum of compensation awarded against Union of India is concerned, considering the nature of the negligence proved against Col. P.K. Malakar and also the fact that late Smt. Rupinder Kaur was shifted to Apollo hospital on the advice of Dr. Prapul Reddy of Apollo hospital thereby taking them out of the treatment of the doctors at Military hospital, the compensation awarded by the State Commission does not call for any enhancement.  However, Union of India must pay appropriate interest ot the complainants on the said compensation.  It is therefore, directed that the Union of India, appellant in FA/190/2008 shall pay the compensation awarded by the State Commission along with interest on that amount @ 9% per annum with effect from the date of institution of the consumer complaint till the date of payment.

20.   For the reasons stated hereinabove, the appeals are disposed of with the following directions:

(i)     First Appeal No.190 of 2008 filed by Union of India is dismissed with no order as to costs.

(ii)    Apollo hospital, respondent No. 1 in FA/412/2008 is directed to pay a sum of Rs.3.00 lacs as compensation to the complainant for making interpolation in the ‘High Risk Consent’ taken from complainant No.1 Major JPS Malhi, along with interest on that amount @ 9% per annum from the date of institution of the complaint.