IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MADIKERI

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT C. RENUKAMBA (I/C)

1. This complaint under section 35 of Consumer Protection Act 2019 to direct the opposite parties to pay compensation of Rs.45,00,000/- for the disability caused by Ops act for deficiency of service.

2.      The brief facts of the complaint is as follows;

The complainant got admitted to the OP hospital with a history of chest pain on 08/04/2018.After diagnosis of Coronary Artery diseases he was suggested to have a heart surgery and on 30/04/2018 he underwent a surgery of elective coronary artery bypass grafting “X” 3(Lima- LAD, LRA RI, SVG-PDA).

The complainant got discharged from the hospital on 10/05/2018.After some days of discharge the complainant had gone for follow up checkup, by then he had started noticing that his left hand had lost its movement.He felt that it was normal after a heart surgery but as days went by he started feeling that there was no sensation in his left hand.On visit to specialists he came to know that his hand had lost sensation and he was unable to move his hand and same had become useless.

The complainant a vegetable merchant was earning more than Rs.1,500/- per day from vegetables sales.After closing the shop he would work for an hour or two driving Auto Rickshaw which made him earns about Rs.500/- per day other than the earning from the shop.He has a wife who is a home maker and two children, a daughter and a son.

Further complainant states that after his hand lost ability to do work the financial condition of the family deteriorated so much that the complainant’s daughter had stopped her studies being unable to pay the college fees.The whole family of the complainant if facing problem because of the disability caused to the complainant by the operation conducted by the opposite party no.2 on 30/04/2018.The complainant’s son has also discontinued his studies and started driving Auto for his livelihood to take care of himself and the family members.The condition of the complainant being unable to lead a normal is very tragic.

Further complainant submits that the negligent act of the opposite parties has caused great mental pressure and agony to the complainant affecting the life of his whole family and needs to be compensated by the opposite party.Hence, the opposite parties are liable to pay compensation of Rs.45,00,000/- to the complainant.Therefore, the complainant prays that this Hon’ble Commission may be pleased pass an award against the opposite parties.

3. After registration of the complaint, notice was issued to opposite parties.  Inspite of service of notice opposite parties has filed his version through Advocate.

4. The brief facts of the Version of 1^st Opposite party is as under;

It is submitted that the complainant Mr. Shekar.V, aged about 42 years was brought by his wife to the OP no.1 Hospital at Mysore via Ambulance on 8/4/2018 and was referred by Lopamudra Medical Centre, Gonikoppa where he was initially lysed with Streptase for inferior wall Myocardial Infarction.He was initially assessed at the emergency department and upon admission under cardiologist Dr. Rajendra N.S, with the diagnosis of inferior wall acute Myocardial, he was Thrombolysed on 8/4/2018.Copy of the emergency Medicine Initial Assessment dated 8/4/2018 is produced herewith as Document No.R-1.Since the patient had coffee ground vomitus urgent Oesophago-Gastro-Duodenoscopy(OGD)revealed Duodenitis Complainant was a Chronic alcoholic for 5 years as presented by himself during admission.Copy of the Admission Case Sheet containing consent for admission and treatment dated 8/4/2018 is produced herewith as Document No.R-2.Copy of the initial assessment by Dr. Rajendra N.S dated 8/4/2018 is produced herewith as Document No.R-3 and copy of the General Consent dated 8/4/2018 given by the wife of the complainant is produced herewith as Document No.R-4.It is submitted that the complainant had coronary Angiogram done on 9/4/2018, which revealed Triple Vessel Coronary Artery Disease and Left Ventricular Dysfunction. He was reviewed by the Senior Cardiac surgeon i.e., the opposite party no.2 on 9/4/2018 and was advised Coronary Artery Bypass Grafting (“CABG”).Copy of the Coronary Angiogram Report dated 9/4/2018 of the complainant is produced herewith as Document No.R-5.Risks and prognosis were explained.Copy of the consent for Coronary Angiogram (CAG) Operation/ Procedure dated 9/4/2018 is produced herewith as Document No.R-6 and copy of the Consent for Serology dated 8/4/2018 is produced herewith as Document No.R-7.The complainant was discharged in good and stable condition on 11/4/2018 and was advised review with consultant cardiologist and senior cardio surgeon i.e. opposite party No.2 after two weeks from the discharge date.Copy of the Clinical Discharge Summary of the Complainant for treatment period between 8/4/2018 to 11/4/2018 is produced herewith as Document No.R-8.

It is submitted that the complainant was subsequently seen in the Outpatient Department (“OPD”) on 25/4/2018 by the opposite party no.2 and the need and requirement for CABG surgery was explained and reiterated with queries answered.Copy of the OP case sheet dated 25/4/2018 indicating that Negative Allen’s Test was done by opposite party No.2 is produced herewith as Document No.8-9.Thereafter, the complainant was admitted on 28/4/2018 and consent for admission and treatment was obtained.Initial assessment was done on 28/4/2018 and CABG surgery was planned for 30/4/2018.Copy of the Admission Case Sheet of the complainant contained consent for admission and treatment dated 28/4/2018 signed by the wife of the complainant is produced herewith as Document No.R-10 and copy of the initial Assessment of the complainant dated 28/4/2018 by the opposite party no.2 is produced herewith as Document No.R-11.

Bypass Surgeryof CABG is when a surgeon takes blood vessels from another part of the patient’s body to go around, or bypass, a blocked artery or several blocked arteries.The result is that more blood and oxygen can flow to the heart again.The blood vessels can be taken the patient’s leg (SAPHENOUS vein), patient’s chest (Internal Mammary Artery), or the arm (Radial Artery), or the arm (Radial Artery).Radial artery is used keeping in mind the better outcome of longer life in patients undergoing surgery especially in patients of younger age as that of complainant.The other blood vessels in these areas are able to compensate for the loss of these blood vessels after the operation.Before surgery and harvesting of Radial Artery, a Modified Allen’s test/ Negative Allen’s test is performed.This is done preoperatively to ensure that the vascularity of the hand can be maintained following division of the radial artery.

It is submitted that the complainant required three grafts in his heart and underwent bypass surgery X3.The complainant had block in Left Anterior Descending Artery, Ramous Intermedius Artery and Posterior Descending Artery for which bypass was done by harvesting Left Internal Mammary Artery, Left Radial Artery and Saphenous Vein Graft respectively.In short, LIMA-LAD (left internal mammary artery-Left Anterior Decending Artery), LRA- RI.(Left Radial Artery- Ramus Intermedius), SVG to PDA (Saphenous Vein Graft to posterior descending artery).

Pre-operative clinical tests including negative Allen’s test of left arm to check for adequate collateral ulnar artery circulation, blood, CXR and ECHO tests were performed as documented.Allen’s test was done on 25/4/2018 itself and the result was negative.Copy of the informed consent for surgery dated 28/4/2018 written on Doctors Progress Notes and signed by the Complainant’s wife is produced herewith as document No.R-12.Consent for operation procedure was taken on 29/4/2018, in the said consent it is specifically explained and pointed out that it is a High-risk surgery and complications include bleeding, infection, Haematoma, Neurologic events like stroke, paralysis, prolonged unconsciousness, renal complications, adverse cardiac events and multiple organ dysfunction.Copy of the consent for operation/ procedure for High Risk CABG dated 29/4/2018 is produced herewith as Document No.R-13.Consent for consent for anaesthesia was also obtained prior to CABG surgery.Copy of the consent for Anaesthesia dated 29/4/2018 is produced herewith as Document No.R-14.

It is submitted that the complainant was taken to the operating Theatre on 30/4/2018 and had coronary artery bypass surgery X3 (LIMA-LAD, LRA-RI, SVG-PDA) as explained above. In the operation theater pulse oximetry was performed on left arm to confirm adequate collateral circulation before harvesting the left radial artery conduit.Following good recovery, the complainant was discharged on 10.5.2018 in stable condition.Copy of the operation Note dated 30/4/2018 is producedherewith as Document No.15 and Copy of the Discharge Summary of the complainant for the treatment period between 28/4/2018 to 10/5/2018 is produced herewith as Document No.R-16.

It is submitted that it is the left arm from where the arterial conduit radial artery was harvested.The radial artery is harvested after the Allen’s test (clinical) after proof that the unlar artery circulation is sufficient to sustain the blood supply for the arm.The arterial (radial artery from the arm) was used to bypass an important critically blocked vessel of the heart and in view of providing the best possible long-term outcome.The long-term arterial graft patency is important for best possible result in a young individual like the complainant.Minimal swelling of the arm before discharge was checked and an ultrasound scan of the forearm done on 9/5/2018 which did not show vascular stenosis of the alternate blood supply, the unlar artery.He was discharged with appropriate advice and medicines including medicines to reduce the minimal swelling of the left forearm.

It is submitted that the complainant was seen a few times in post OP follow up Out Patient Department (“OPD”) and as per hospital records his last visit to the OPD was on 21/3/2019.He failed to come for follow up thereafter and the hospital and the opposite party herein are unaware of the condition of the patient after 21/3/2019.The opposite parties herein have accepted the case of the complainant, Mr.Shekhar for surgery and given him appropriate and necessary treatment which is universally accepted.A case of Acute Inferior Wall Myocardial Infarction, S/P Thrombolysis, left ventricular dysfunction, alcoholic with duodenitis and haematemesis was treated without hesitation and there has been no deviation from the established medical practices in such surgeries.The complainant was monitored and treated well in the ICU and wards with regular checks and appropriate tests and discharged in stable condition, all done free of cost under the BPL scheme (Vajpayee Arogyashree).Copy of the final bill for the CABG surgery of the complainant dated 10/5/2018 is produced herewith as Document No.R-17.

If the complainant faced any issues with the arm as alleged, he could have come for appropriate checks and testes with treatment, if any required.The opposite parties herein have not heard from him or his family for last 3 years and are surprised and dismayed that the complainant is making false and reckless allegations against the opposite parties herein who in-fact saved his life and have acted only in the interest beneficial to the complainants betterment.It is submitted that there has been no negligence or deficiency whatsoever from the date of the complainant’s admission to his discharge and hence there is no cause of action for any medical negligence at any point in time of care during preoperative, operative periods and during post-operative follow up till the date of his last visit to the opposite party no.1 facility on 21.3.2019.

It is submitted that the opposite party no.2 is a highly qualified, experiencedcardiac surgeon rendering his services as a consultant senior cardiac surgeon.Opposite party no.2 has completed his MBBS in 1991, MS (General Surgery) in 1994, MCh-Cardiothoracic and vascular surgery in 1998, Senior Housemanship cardiac surgery, United Kingdom, Fellowship in cardiac surgery at University of Toronto, Canada 2001-2003, Diploma in hospital and health administration, IGNOU.With a total experience of 25 yearsthe opposite party no.2 senior cardiac surgeon has completed an approximate of 10,000 procedures as has been learnt from him.

5. The brief facts of the Version of 2^nd Opposite party is as under;

There is no cause of action whatsoever for the present complaint.It is submitted that the above complaint does not present the true set of facts.The complainant is guilty of suppression of material facts and there is delay in approaching this Commission and on this ground alone the present complaint is liable to be dismissed.

It is submitted that the complainant Mr. Shekhar V, then aged about 42 years was brought by his wife to the opposite party no.1 hospital at Mysuru via ambulance on 8/4/2018 and was referred by Lopamudra Medical Centre, Gonikoppa where he was initially lysed with Streptase (Streptokinase)for Inferior Wall Myocardial Infarction.He was initially assessed at the Emergency Department and upon admission under cardiologist Dr. Rajendra N.S., with the diagnosis of Inferior wall Acute Myocardial, he was Thrombolysed on 8/4/2018.Since the patient had coffee ground vomitus urgent Oesophago-Gastro-Duodenoscopy (OGD) revealed Duodenitis (the complainant has been chronic alcoholic for 5 years), as presented by himself during admission.It is submitted that the complainant had Coronary Angiogram done on 9/4/2018, which revealed Triple Vessel Coronary Artery Disease and Left Ventricular Dysfunction.He was reviewed by the senior cardiac surgeon Dr.M.N. Ravi i.e., the opposite party no.2 on 9/4/2018 and was advised Coronary Artery Bypass Grafting (“CABG”).Risks and prognosis were explained.The complainant was discharged in good and stable condition on 11/4//2018 and was advised review with consultant cardiologist and Senior Cardio surgeon i.e. Opposite party No.2 after two weeks from the discharge date.

It is submitted that the complainant required three grafts in his heart and underwent bypass surgery X3.The Complainant had block in Left Anterior Descending Artery, Ramous Intermedius Artery and Posterior Descending Artery for which bypass was done by harvesting Left Internal Mannary Artery, Left Radial Artery and Saphenous vein Graft respectively.In short, LIMA-LAD (Left internal mammary artery-Left Anterior Descending Artery), LRA-RI.(Left Radial artery- Ramus Intermedius), SVG to PDA (Saphenous Vein Graft to Posterior Descending Artery).

Pre-operative clinical tests including negative Allen’s test of left arm to check for adequate collateral ulnar artery circulation, blood, CXR and ECHO tests were performed as documented.Allen’s test was done on 25/4/2018 itself and the result was negative.Informed written consent for High Risk CABG surgery after risks were explained was obtained on 28/4/2018in the Doctors Progress notes.Consent for operation Procedure was taken on 29/4/2018, in the said consent it is specifically explained and pointed out that that it is a High-risk surgery and complications include bleeding, infection, Haematoma, Neurologic events like stroke, paralysis, prolonged unconsciousness, renal complications, adverse cardiac events and multiple organ dysfunction.The complainant and his wife after understanding the risks explained to them have signed the consent form on 29/4/2018.Consent for anaesthesia was also obtained prior to CABG surgery.

It is submitted that the complainant was taken to the operating theatre on 30/4/2018 and had coronary artery bypass surgery X3 (LIMA-LAD, LRA-RI, SVG-PDA) as explained above.In the Operation Theatre pulse oximetry was performed on left arm to confirm adequate collateral circulation before harvesting the left radial artery conduit.Following good recovery, the complainant was discharged on 10/5/2018 in stable condition.

It is submitted that the site of contention is the left arm from where the arterial conduit radial artery was harvested.The radial artery is harvested after the Allen’s test (Clinical)after proof that the unlar artery circulation is sufficient to sustain the blood supply for the arm.The arterial (radial artery from the arm) was used to bypass an important critically blocked vessel of the heart and in view of providing the best possible long-term outcome.The long-term arterial graft patency is important for best possible result in a young individual like the complainant.Minimal swelling of the arm before discharge was checked and anultrasound scan of the forearm done on 9/5/2018 which did not show vascular stenosis of the alternate blood supply, the unlar artery.He was discharged with appropriate advice and medicines including medicines to reduce the minimal swelling of the left forearm.

It is submitted that the complainant was seen a few times in post OP follow up Out Patient Department (“OPD”) and as per hospital records his last visit to the OPD was on 21/3/2019.He failed to come for follow up thereafter and the hospital and the opposite party herein are unaware of the condition of the patient after 21/3/2019.

The complex surgery with the best possible conduits (veins/artery) for grafting was done after appropriate pre-operative checks including Allen’s test, the surgery itself was conducted by the Highly Experienced opposite party no.2.The complainant was monitored and treated well in the ICU and wards with regular checks and appropriate tests and discharged in stable condition, all done free of cost under the BPL scheme.

The opposite parties herein have not heard from him or his family for last 3 years and are surprised and dismayed that the complainant is making false and reckless allegations against the oppositeparties herein who in-fact saved his life and have acted only in the interest beneficial to the complainants betterment.Known risks and complication related to the complainant’sCABG surgery have been explained and all necessary tests including Allen’s test is performed prior to surgery.It is submitted that there has been no negligence or deficiency whatsoever from the date of the complainant’s admission to his discharge and hence there is no cause of action for any medical negligence at any point in time of care during preoperative, operative periods and during post-operative follow up till the date of his last visit to the hospital i.e. 21/3/2019.

It is submitted that the opposite party no.2 is a highly qualified, experienced Cardiac Surgeon rendering his services as a consultant senior cardiac surgeon.Opposite party no.2 has completed his MBBS in 1991, MS (General Surgery)in 1994. Mch-Cardiothoracic and vascular surgery in 1998, Senior Housemanship cardiac surgery, United Kingdom, Fellowship in cardiac surgery at University of Toronto, Canada 2001-2003, Diploma in hospital and health administration, IGNOU. With a total experience of 25 years the opposite party no.2 senior cardiac surgeon has completed an approximate of 10,000 procedure.Notarised copy of the registration certificate of the 1^st respondent bearing registration No.31144 issued by the Karnataka Medical council is produced herewith as Document No.R-1.

6. In this case complainant has filed his examination-in-chief by way of affidavit as CW-1 and filed eight documents  as exhibit C-1 to C-8 and opposite parties are filed their examination in chief by way of affidavit evidence as RW-1 & RW-2 and OP.1filed seventeen documents marked as exhibit R-1 to R-18 and OP2 documents marked as exhibit R-1 to R-6. Complainant, OP.1 & OP.2 are filed their written arguments and heard the oral Arguments of both sides.

7. The points that would arise for our consideration are as under;

1. Whether the complainant proves that his complaint is not barred by limitation?
2. Whether the complainant proves the deficiency in service by the opposite parties and thereby he is entitled for the reliefs sought ?
3. What order ?

8. Our findings on the above points are as under;

1. Point No.1 :- Negative.
2. Point No.2:- Negative
3. Point No.3:-As per the final order for the  following ;

R E A S O N S

9. Point No.1:- On verification of complaint filed by the complainant, affidavit filed, arguments and the version filed by the opposite party it is observed that on 8/4/2018 complainant get admitted to Ops hospital and has underwent cardiac surgery on 30/04/2018.  But, as per the Consumer Protection Act 2019 within two years of arise of cause of action one has to file complaint.  Complainant in this instant case has delayed in filing the complaint.  It is noticed that the complainant has filed the complaint on 15/03/2022 which is late filing.  Even if COVID 19 lockdown period is considered from 23/03/2020, the complainant had sufficient time in filing the complaint and nowhere in the complaint the complainant has given any reason for delay in filing the complaint.  Hence, point no.1 we answered in Negative.

10. Point No.2:- On verification of all documents it is noticed that there is no expert opinion to prove the negligence on the part of OP.  There is no evidence or proof and since, more evidence of proof is required to prove negligence, deficiency in service on the part of OP cannot be established or complainant has failed to prove deficiency in service caused by OP.  Therefore, complainant is not eligible for any compensation from OP.  Hence, Point No.2 is we answered in Negative.

11. Point No.3:- From the discussion made above and conclusion arrived at, we pass the following order;

O R D E R

1. The complaint of the complainant under section 35 of Consumer Protection Act, 2019 is not maintainable and there by Complaint is  dismissed. 
2. Copy of this order as per statutory requirements be forwarded to the parties free of cost and file shall be consigned to record room.

(Dictated to the Stenographer, transcribed, corrected and pronounced in the open Commission on this 16^th DAY OF JANUARY, 2023)

                (GOWRAMMANNI)                      (RENUKAMBA.C)                                                     

                      MEMBER                             PRESIDENT(I/C)

Witnesses examined on behalf of the complainant

CW-1-  Sri. Shekar.V (Complainant)

Documents marked on behalf of the complainant

Ex.C-1 : CD

Ex.C-2: Discharge Summary

Ex.C-3:Ultra Sound Scan Report dt:9/5/2018

Ex.C-4:Final Bill

Ex.C-5:ENMG Report dt:21/3/2019

Ex.C-6:-7-Wave Test

Ex.C-7:- Adhar card

Ex.C-8:Ration card

Witnesses examined on behalf of the Opposite party No.1

RW-1- Dr. Ashok.A (Opposite party No.1)

RW-2- Dr.M.N. Ravi (opposite Party No.2)

Documents marked on behalf of the Opposite party No.1

Ex.R-1 : Copy of the Emergency Medicine Initial Assessment dated 8/4/2018.

Ex.R-2: Copy of the Admission Case Sheet containing consent for admission and treatment dated 8/4/2018

Ex.R-3:Copy of the initial assessment by Dr.Rajendra N.S dt:8/4/2018

Ex.R-4: Copy of the General Consent dated 8/4/2019

Ex.R-5:Copy of the Coronary Angiogram Report dated 9/4/2018  of the complainant

Ex.R-6: Copy of the consent  for Coronary Angiogram (CAG) operation/ Procedure dated 9/4/2018

Ex.R-7: Copy of the consent for Serology dated 8/4/2018

Ex.R-8: Copy of the clinical discharge summary of the complainant for treatment period between 8/4/2018 to 11/4/2018

Ex.R-9: Copy of the OP case sheet dated 25/4/2018 indicating Negative Allen’s Test was done by opposite party No.2.

Ex.R-10:Copy of the Admission case sheet of the complainant containing consent for admission and treatment dt:28/4/2018

Ex.R-11: Copy of the initial Assessment of the complainant dated 28/4/2018 by the opposite party no.2.

Ex.R-12: Copy of the informed consent for surgery dt:28/4/2018 written on Doctors progress notes and signed by the complainant’s wife.

Ex.R-13:Copy of the consent for operation /procedure dated 29/4/2018 for High Risk CABG.

Ex.R-14: Copy of the consent for Anaesthesia dt:29/4/2018.

Ex.R-15: Copy of the operation note dated 30/4/2018

Ex.R-16:Copy of the Discharge summary of the complainant for the treatment period between 28/4/2018 to 10/5/2018.

Ex.R.17: Copy of the  final bill for the CABG surgery of the complainant.

Ex.R-18: Authorisation letter

Documents marked on behalf of the Opposite party No.2

Ex.R-1 : Registration Certificate of the opposite party no.2 doctor issued by the Karnataka Medical Council.

Ex.R-2:Medical literature containing a systematic review and meta-analysis 

Ex.R-3:  The Medical literature found in JTCVS Techniques c volume 5, Number C regarding the radial artery

Ex.R-4: Medical literature published in the European journal of Cardio-thoracic Surgery 28(2005) 420-424.

Ex.R-5: Medical Literature on the Long-term impact of radial artery harvest on forearm function and symptoms: A comparison with leg vein

Ex.R-6: Radial Artery Harvesting for coronary Bypass operations: Neurologic complications and their potential mechanisms