DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.359/2011
Ms. Kusum Chaturvedi Thru. LRs
- Sh. Asit Kumar Chaturvedi
S/o Lt. Sh. Hem Chandra Chaturvedi &
Lt. Mrs. Kusum Chaturvedi, R/o 1/79, Vivek Khand,
Railway St. Road, Gomti Nagar, Lucknow- 226010
- Dr. (Kum) Archana Chaturvedi
S/o Lt. Sh. Hem Chandra Chaturvedi & Lt. Mrs. Kusum Chaturvedi
Th. Her Natural Brother
Asit Kumar Chaturvedi S/o Lt. Sh. Hem Chandra Chaturvedi &
Lt. Mrs. Kusum Chaturvedi R/o 1/79, Vivek Khand,
Railway St. Road, Gomti Nagar, Lucknow- 226010
….Complainants
Versus
Primus Super Speciality Hospital
Chandragupta Marg, Chanakyapur,
New Delhi- 110021
Dr. V.K. Rajoria
C/o Primus Super Speciality Hospital
Chandragupta Marg, Chanakyapur,
New Delhi- 110021
New India Assurance Co. Ltd.
Divisional Office at: 4th Floor, Bajaj House,
97, Nehru Place, New Delhi- 110019
United India Insurance Co. Ltd.
60, Janpath, New Delhi- 110001
….Opposite Parties
Date of Institution : 04.10.2011
Date of Order : 04.02.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Sirvastava
Complainant has filed the present complaint seeking compensation of Rs. 6,22,600/- towards medical expenses incurred by her on her surgeries. She has also sought compensation of Rs.10,15,200/- as monthly expenses at Rs. 42,300 per month starting from September 2011 till recovery, further an amount of Rs.3,00,000/- is sought as compensation for mental agony and physical pain and Rs. 33,000/- towards litigation expenses.
The case of the complainant is that she is about 80 years old leading a normal healthy active life and used to do the normal chores around the house without any support or help however after her neurosurgery she is bedridden with no immediate prospect of recovery. It is her allegation that her condition as such is on account of the neurosurgery wrongly conducted by OP.
It is the case of the complainant that on 04.06.10 she accidentally slipped and fell outside the bathroom due to wet floor, she had bleeding injuries on the face and was therefore immediately rushed and admitted at the OP No.1 hospital. Copy of the discharge summary is annexed as Annexure 2. The complainant was treated for contusion injury on the left eye brow and was examined by eye surgeon, ENT specialist and senior consultant, internal medicine. She had also undergone a CT scan namely NCCT head on the recommendation of OP No.2. She was discharged the next day on 05.06.10 after being kept under observation and after concluding that no internal injuries were seen in the NCCT head report. The report is annexed as Annexure 3. The complainant was again taken on 12.06.10,19.06.10 and 10.07.10 as precautionary check-ups and the doctors at the OP No.1 confirmed that her condition was normal. It is further stated that on 06.08.10 the complainant accidentally fell down in the bathroom at about 9 p.m and was immediately rushed to the OP No.1 hospital within 30 minutes. She received nine stitches and a bandage was also put on her besides providing other medications. As a matter of precaution the NCCT head scan was again done and she was discharged on the same day and was advised removal of bandage after one week.
On 16.08.10, senior consultant of the OP No.1 hospital on review of the complainant’s scan report recommended neurosurgery for sub dural/haematoma and advised her to immediately consult a neurosurgeon. The doctor of the OP No.1 hospital also assured them that there is nothing to worry about and that it is a small surgery and the OP No.1 hospital was well equipped to handle cases of neurosurgery. It is further stated that on 21.08.10 the complainant visited VIMHANS for a second opinion and the second opinion also confirmed the need for neurosurgery.
The complainant is said to have been operated on 25.08.10 and it is only on 26.08.10 when she was shifted back to the room that the son of the complainant realized that there is no movement in the left arm and very feeble movement in the left leg of the complainant. On examination, OP No.2 found symptoms of hemiparesis and ordered fresh NCCT head to be performed. Fresh NCCT head was done on 27.08.10 which revealed that there was accumulated fluid (which should have been cleared in the surgery done on 25.08.2010) and that haemorrhage was seen in the right eye parietal region. Thereafter an immediate re-operation was ordered by OP No.2 and they were given another estimate of expense amount of Rs. 2,41,000/-. It is the grievance of the complainant that they were never informed at the time of first consultation or admission that there was a possibility of a second surgery. On request of the son of the complainant the OP No.2 gave a letter dated 28.08.2010 explaining the reasons for the second surgery which is annexed as Annexure 4. After the re-operation on 30.08.10 and thereafter on 01.09.10 MRI brain scan was done and complainant was discharged. Copy of the discharge summary is annexed herewith as Annexure 5.
The complainant, relying on this discharge summary further states that at the time of admission, the level of hemiparesis was 4/5 while at the time of discharge the level of hemiparesis was 1/5 which is indicative of near paralytic state. The complainant states that thereafter she has been totally bedridden. On the advice of the OP the complainant has also hired the services of a physiotherapist from the same hospital at a fee of Rs.17,000/- per month who attended to the complainant from 01.09.10 to 15.01.11. Thereafter other physiotherapists were privately engaged from 26.01.11 at the rate of Rs. 9,000/- per month.
It has also been stated that since the complainant was not showing any signs of improvement, OP No.2 was informed about the complainant’s health and an assurance was given by him that the improvement will soon happen since in certain cases recovery takes more time than usual. The complainant was again made to visit the hospital on 11.09.10, 25.09.10 and 09.10.10 for repeated examination and each time an ambulance had to be called keeping in view complainant's deteriorating health. When the complainant did not show any signs of improvement, her case was referred to Fortis hospital Vasant Kunj on 10.11.10. where an estimate of Rs. 5,62,000/- was prepared by the hospital and it was sent to the medical director, Northern Railway (as the son of the complainant was employed with them) with recommendation of re operation. On 22.11.10, the complainant was examined by the Railway Board and was recommended fresh neurosurgery operation at Fortis hospital. The operation was carried out on 19.01.11 and the complainant was discharged on 25.01.11, the discharge summary dated 25.01.11 is annexed as Annexure 9. The son of the complainant visited OP No.1 and other officers on 05.02.11 and requested them to set up a medical board and examine as to what went wrong in the first two surgeries of the complainant. In reply they got vaguely worded letters on 23.02.11 and are annexed as Annexure 10.
It is the claim of the complainant that on account of the negligence of the OPs she has suffered tremendous mental and physical torture and is also incurring day to day expenditure and her son is struggling to balance his budget by withdrawal of savings, retirement funds and finding it difficult to sustain the high cost of such medical bills.
In their reply both OP No. 1 and 2 have filed similarly worded Reply and have denied the allegations of negligence or deficiency in service and state that it is a frivolous complaint which ought to be dismissed. It has been stated that the complainant was not maintaining good health as is seen from the number of times that she was admitted/seen in the hospital and further that there is no negligence on the part of the OP due to which the complainant is bedridden. It is further stated that due care and caution was taken in view of the risk relating to the 80 year old complainant and that is the reason why the NCCT head was done to rule out any internal injury. It is further stated that when the complainant visited the hospital after her discharge for a routine checkup, she was fine and normal. It is further stated that the surgery related to subdural hematoma is a vast field in the medical science and has a variable result with different rate of recovery. The complainant was given proper care and was minutely observed/ monitored while in the post -operative care.
It is further stated that as per the medical journal, the chronic subdural hematoma is generally known as a curable condition and usually does require repeated surgical treatment with frequency varying from 2.7% to 30%. It is also stated that while such surgery is performed on older patients the post- operative complications are not negligible and the OP No.2 took complete care of the complainant. It is stated that the slow rate of recurrence is more common in aged persons. The complainant being an old lady of 80 years, it was difficult to get active fast recurrence after the surgery. It is further stated that the resolution of the chronic subdural hematoma after the burr hole drainage depends on the rate of cerebral re expansion, and that re expansion rate is relatively low in patients who are 70 years old or more than that. That is why slow and late recurrence in the aged complainant. It is further submitted that there is no negligence on the part of the OPs as he has performed his duty with utmost care and took every precaution which he had while conducting these type of surgeries.
It is further submitted by the OPs that chronic subdural hematoma is the most common intra cranial hematoma affecting specially elderly population and there is substantial recurrence rate after evacuation by burr hole surgery and requires repeated surgical treatment in elder group which does not amount to medical negligence.
We have carefully gone through the entire record including evidence filed by Complainant and OPs 1 and 2, their written arguments and also heard the oral arguments. have filed their respective reply, rejoinder, evidence and also written arguments which are on record. We have also gone through the judgements filed by the complainant.
The record of the case evidences that an application for substitution of the LRs of the complainant was filed as the complainant died on 06.03.2014 and after hearing objections of the OP, it was allowed on 07.09.2016. Another application on behalf of OP No.1 under O.1 R.10 to implead the New India Assurance, a party to this case as they are providing professional indemnity to OP No.1 was filed in 2016, a similar application was filed by OP No.2 to implead United India Insurance Co. Ltd. and the same were allowed vide order dated 03.02.2017. An amended memo of parties has also been filed on record dated 10.02.2017. The Insurance cover of both the respective Insurance Companies are on record however none of them has filed any reply.
It is further observed from the order sheet dated 27.08.2018 that the complainant had requested for an adjournment for moving an application seeking expert opinion, however, nothing happened thereafter. The matter has been listed for final arguments after the filing of written arguments since 2019.
The complaint itself discloses that there is something amiss when the complainant after being operated on 25.08.2010 had to be reoperated for the same problem on 30.08.2010. It is not the case of the OPs that some new complication had developed to the complainant after being operated for the first time although they have taken the defence that in certain cases of subdural haematoma, a repeat surgical treatment with frequency varying from 2.7% to 30% is possible. They have also stated that surgery on such older patients also may have some post-operative complications of which they have taken care of and the recurrence rate in critical subdural haematoma is significant ranging from 5% to 30%. At the same time it is not missed that the Complainant has not filed any expert medical opinion to prove medical negligence on the part of the OPs to support the case. As per the Hon’ble Supreme Court in Harish Kumar Khurana vs Joginder Singh AIR 2021SC 4690 medical negligence cannot be automatically assumed. “To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered.”
The material available on record in this case does not indicate medical negligence on the part of the OP 1 and 2 as far as advising the complainant in having the surgery and post-operative care is concerned but it is equally correct that neither OP 1 nor OP 2 had taken care to explain the complexities of the surgery being carried out on an 80 year old complainant nor did they think it fit to explain the recurrence rate in such surgeries. We are deriving this inference from the fact that they have nowhere in their reply mentioned that these facts were explained to the complainant or her family at the time of the surgery. Since the OPs were aware of the complexities of carrying out surgery on such elderly patients like the complainant, it should have been prudent for them to explain in detail to the complainant as well as her family, the side effects/ after effects/ recurrence/risk involved in the surgery. It has nowhere been stated by either of the OPs that they have taken care of this duty.
The Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab and Ors. (05.08.2005 – SC) has held that
“(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'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582 holds good in its applicability in India……………………”
Therefore, we hold both OP 1 and 2 negligent in not explaining the complexities of the procedure to be carried out on an octogenarian patient and the chances of recurrence which the OPs claim to be quite high and therefore direct all the OPs jointly and severally to compensate the LRs of the complainant for a sum of Rs. 1,00,000/- on account of mental harassment which the family and the complainant had to put up with after the complainant’s surgery till the time she passed away. However, we are not inclined to compensate the complainant/ her family for the amount spent on the surgeries for the reason that there is no negligence in carrying out the surgeries on the part of the OPs.
File be consigned to the record room after giving a copy of the order to the party. Order be uploaded on the website.
