RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 71 OF 2003
- Smt. Pushpa Bhatnagar
W/o Late Jai Prakash Bhatnagar
R/o Near Vinod Baal Mandir
Surendranagar, Aligarh.
02. Gaurav Bhatnagar
S/o Late Jai Prakash Bhatanagar
R/o Near Vinod Baal Mandir
Surendranagar, Aligarh.
- Km.Shruti Bhatanagar
D/o Late Jai Prakash Bhatanagar
R/o Near Vinod Baal Mandir
Surendranagar, Aligarh.
...Complainants
Vs.
- M/s. Varun Hospital
405A, Vishnupuri
Aligarh
Through its Director
(Present Dr. Mani Bhargava)
- Dr. Sanjay Bhargava
405A, Vishnupuri
Aligarh
- Dr. K K Singh
K K Singh (Ortho) Hospital
Ramghat Road, Aligarh.
...Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE VIRENDRA SINGH, PRESIDENT
HON’BLE MRS. BAL KUMARI, MEMBER
For the Complainant : Sri Rajesh Chadha, Advocate.
For the Opposite Parties : Sri Sushil Kumar Sharma, Advocate.
Dated : 16-10-2014
JUDGMENT
PER MR. JUSTICE VIRENDRA SINGH, PRESIDENT
The complainants have filed this complaint seeking relief for a sum
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of Rs.45,00,000/- with interest @ 12% from the date of the complaint till the date of actual payment to be awarded against the opposite parties and in favour of the complainants.
Briefly stated the facts of the complaint case are that the complaints are successors and legal representatives of Sri Jai Prakash Bhattanagar a practicing and progressive young lawyer earning Rs.48,000/- per year who was died in the age at about 44 years due to medical negligence committed by the opposite parties. M/s. Varun Hospital, the opposite party no. 1 is a private nursing home and used to admit the patients potential users on charges for their services. Dr. (Mrs.) Mani Bhargava and her husband Dr. Sanjay Bhargava O.P. no. 2 run the hospital and they are responsible for their own acts as well as acts of employees of the hospital. The opposite party no.2 is an anaesthetist and opposite party no.3 is a consulting orthopaedic surgeon of the same hospital. On 17-01-2002 deceased Sri Jai Prakash Bhattanagar had accidentally fell down from his scooter on the road and got injury on his arm near right shoulder. Some people of the area and his father complainant no.4 (since expired) immediately took him to a nearby nursing home known as Ortho Care Centre, wherein dislocation of shoulder was diagnosed and first aid was provided but they had advised the injured to go to Jawahar Lal Nehru Hospital, Medical College, Aligarh. The injured took the advise of Dr. Sanjay Bhargava opposite party no.2 too, who advised that the he could be treated in the hospital of opposite party no.1 without any risk and there was no need to go here and there. On 19-01-2002 at about 7.00 p.m. thereby following the advise of opposite party no.2, the complainants got Sri Jai Prakash Bhattanagar admitted in the hospital opposite party no.1 wherein on 20-01-2002 at about 6.30 a.m. Sri Jai Prakash Bhattanagar was taken to operation theatre. There were no pre-operational pathological tests for the injured conducted by the opposite party nursing home and the patient was operated upon by the opposite party no.2 along with opposite party no.3 acting as an anaesthetician. Keeping in view the age of the patient as 44 years, no pre-operational pathological tests were undertaken by O.P.s ensuring the fitness of the deceased for operation. The opposite parties in their reply to the legal notice sent to them by the complainants
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wrongly stated as an afterthought that the pre-operational tests were conducted. There was no mention in their reply as to what tests were taken and investigation conducted by them. Even no copy of such test reports were provided by the O.P.s to the complainants. The complainant no.1 though had paid all the hospital charges to the tune of Rs.12,000/- in advance for the operation but no receipt of that amount was given to the complainants or to the deceased Jai Prakash Bhattanagar by the O.P.s. The death of Jai Prakash Bhattanagar was occurred during the course of operation in the operation theatre but the complainants were informed about this fact at about 10.45 a.m. while he was taken to operation theatre at 6.30 a.m. on 20-01-2002. It was reported by the opposite parties that the deceased had died due to failure of heart while the failure of the heart had not been the reason of the death of the deceased rather it was the result of carelessness of doctors/opposite parties no. 2 and 3 conducting the operation for which the opposite party no.1 is also responsible. Post-mortem of the deceased was conducted by Dr. D.D. Bhardwaj of M. S. Hospital, Aligarh on 20-01-2002 wherein it was mentioned that both the chambers of heart were found full of blood. The doctor conducting post-mortem was not found acting honestly as neither he could ascertain the cause of death nor he referred the matter to medico legal expert. The police was also remained dishonest in the investigation as the papers relating to the treatment of deceased were not recovered by the police from the hospital. The opposite parties were not equipped with proper equipments for management of emergency in their operation theatre and even oxygen was arranged, just before the communication of death. The cardiac arrest to deceased was occurred due to wrong administration of anaesthesia by the negligence of opposite party no.01. As a matter of fact, the death was due to failure of lungs and also due to carelessly taken up the operation by the opposite parties. There had been deficiency in service in not providing proper treatment and care to the deceased Jai Prakash Bhattanagar and also withholding the treatment record by the opposite parties. The opposite parties even have not issued any receipt of the payment and the complainants remained in impression that they will take ultimate bills and pay them and then ultimate receipt will be issued as per
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usual practice of nursing home but as soon as Jai Prakash Bhattanagar died the opposite parties did not issue any receipt while a sum of Rs.12,000/- was charged as fees and Rs.5,000/- was charged expecting the expenditures. The deceased was the only bread earner of his family. The value of the human life cannot be ascertained in terms of money but since the deceased was earning about Rs.4,000/- per month and was expected for life about 36 years more, therefore, it is expected that he could have earned at about Rs.25,00,000/-. The complainant no.1 has lost her husband and she is entitled further more for at least Rs.5,00,000/- towards loss of consortium and also entitled for loss of natural love and affection and mental agony to the tune of Rs.5,00,000/-.
The opposite parties no. 1 and 2 M/s. Varun Hospital and Dr. Sanjay Bhargava have filed their written statement stating therein that Smt. Usha Bhargava is the owner of building of Varun Hospital, who let out this building to Dr. (Mrs.) Mani Bhargava and Dr. Sanjay Bhargava on rent. Varun Hospital is the composite name of two units known as Varun Hospital (General) and Varun Hospital (Gynae.). Both the sections of the hospital are independent and separate from each other. Varun Hospital (General) is managed by Dr. Sanjay Bhargava the opposite party no.2 whereas Varun Hospital (Gynae) is run by Dr. (Mrs.) Mani Bhargava, the opposite party no.1. Both hospitals are independent units having nothing to do with each other. Impleadment of Dr. (Mrs.) Mani Bhargava in the complaint is malafide, wrong, illegal and contrary to law as there is no document assigning any role linking with Dr. Mani Bhargava with the incident or with the treatment so imparted to the deceased. On 18-01-2002 Sri Jai Prakash Bhatnagar was brought to Varun Hospital (General) but he was not admitted on the said day due to pre-operation investigations which were to be conducted and due to non-availability of Dr. K K Singh the Orthopaedic Surgeon. The attendants of the patient were suggested by the opposite party no.2 that they may even go to other hospital as per their wish but the attendants of the patient were adamant to get the treatment from opposite party no.2. In the meantime pre-operation pathological investigations/tests were got conducted with a view to ensure the fitness of the patient for the proposed operation. Medical
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records clearly show that the X-ray was conducted, blood pressure was recorded and monitored, blood sugar was done and accordingly blood samples were taken for haemoglobin and blood glucose tests and thereafter the patient was admitted on 19-01-2000 at 8 p.m. after examining by opposite party no.3 in the hospital. He was taken in the operation theatre at 6.30 a.m. on 20-01-2002. During the course of operation under anaesthesia, the pulse, regularity of breathing, normalcy of heart beats, besides over all cardiac condition were monitored by Dr. Sanjay Bhargava with the assistance of latest equipments available in the operation theatre. The patient was not having any history of Cardiac problem or any other problem affecting the cardiac health. This fact has also been admitted by the complainants in their complaint. The opposite party no.2 Dr. Sanjay Bhargava remained all the time, by the side of the deceased during the course of operation, keeping vigilant eye on the condition of the patient and the operation was conducted successfully up to 9.15 a.m. After the operation the fractured arm was set right and dressing was drying. The patient had come in his consciousness and he was following the verbal directions of the opposite party no.2 and 3. Suddenly at 9.45 a.m. the patient slept down towards back side due to massive heart attack and sunk. He could not recover, though the opposite party no.2 and 3 resuscitate and tried to revive the heart beat with the help of all the best possible arrangements available in the operation theatre. The deceased could not survive the massive heart attack. The sudden heart attack was so abrupt that all the mechanism monitoring the physical condition of the patient could not facilitate in advance the comprehension of the complication leading to massive heart attack. In consequences of the said massive heart attack the patient died, even after the cardiologist namely Dr. Ajay Singhal summoned, but his visit too could not bear any fruit. Thereafter the family members of the deceased were immediately intimated at 10.15 about the sudden death of the deceased. No fee was demanded for the treatment keeping in view that the patient was admitted on recommendation of staff Nurse. All the documents consisting of medical record including the pathology reports etc. were handed over to the complainants under the signature of Sri Devendra Bhatanagar and Mr.
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Nagees Ahmad, Advocate.
It has further been pleaded in the written statement that Sri O P Bhatnagar the father of the deceased, the complainant no.4 is a eminent lawyer of Aligarh who lodged a F.I.R. on 20-01-2002 against the opposite party no.2 and 3 in Cr. Case No. 247/2002 charged under Section 304A IPC at P.S. Quarsi, Aligarh wherein he alleged that due to excessive dose of anaesthesia and carelessness of Dr. K K Singh and Dr. Sanjay Bhargava the patient had died in the operation theatre while the deceased had never suffered earlier any trouble related to the heart and breathing and died due to medical negligence on behalf of the opposite parties. For the fact that deceased was earning Rs.48,000/- per year, there is no documentary evidence to prove it. The complainant no. 4 is not the dependent of the deceased as the deceased was living separately away from the family of complainant no.4.
The opposite party no.3 Dr. K K Singh has also filed his written statement separately thereby denying the allegations of the complainants and stating that he has passed M.B.B.S. in the year 1985-86 and MS in the year 1989 from K.G.M.C. Lucknow and started practice as Consultant Ortho. Surgeon at Aligarh and visiting Doctor of Varun Hospital, Aligarh. After seeing the patient’s record and discussing his fitness for anaesthesia with Anaesthetist and finding him fit for anaesthesia, he had advised for operation. Deceased’s attendants and patient himself were very well explained for risk of anaesthesia and operation. He has no concern with regards to the payment paid by the patient but he had heard that the patient was admitted in the hospital with recommendation of Smt. Beena Tomar, the Nurse of the opposite party no.2. The massive cardiac arrest was sudden and the same was not related to any act or omission of him/the opposite party no.3. There is no cause of action arisen against the opposite party no.3 as he has not been guilty of any kind of carelessness or negligence in the operation of the patient.
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The Complainants filled evidence in support of their case as follows :
Affidavit dated 07-07-2011 & 15-09-2010 & 15.03.2005 sworn by Smt. Pushpa Bhattanagar/ complainant no.1, wife of the deceased, reiterating the facts of the complaint.
Affidavit dated 15-03-2005 sworn by Nafeesh Ahamad Advocate thereby stating the facts in support of the complaint.
Affidavit of Gaurav Bhatnagar, the son of deceased thereby stating the facts in support of the complainant.
Affidavit dated 15-03-2005 sworn by Sri Om Prakash Bhattanagar/ complainant no.4 (since died), father of the deceased (since died ) stating/verifying the facts of the complaint.
Affidavit dated 15-03-2005 sworn by Km. Shruti Bhattanagar/ complainant no.3, daughter of the deceased stating/verifying the facts of the complaint.
Affidavit dated 15-03-2005 of Sri Anil Chaurasia neighbour of the complainants supporting/corroborating the facts of the complaint case of the complainants.
Affidavit dated 15-03-2005 of Dr. Devendra Bhatnagar/yonger brother of the deceased stating/verifying the facts in support of the complainants.
Photo copy of post mortem report of deceased, expert opinion 24.12.2009 from Department of Orthopaedic Surgery C.S.M. Medical University U.P.,
On behalf of opposite parties, the evidence has been filed as follows :,
Affidavit dated 02-12-2008 sworn by Dr DD Bhatnagar thereby stating that he had prepared the post mortem report wherein the cause of
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death of the deceased could not be ascertained at the time of post mortem of the deceased and the visra was preserved, the report of which no where revealed the excess dose of anaesthesia.
Affidavit dated 29-03-2005 sworn by Dr. Sanjay Bhargava opposite party no. 2 thereby reiterating the facts of the written statement and annexing Annexure no. 1 photo copy of sale deed showing the ownership of the building of Hospital in the name of Usha Bhatnagar, Annexure no. CA-2 & CA-3 showing the building of the Hospital with him on rent, Annexure no. CA-4 to CA-7 showing the status of the Hospital for General and Gynee separately, Annexure no. CA-8 & CA-9/the legal notice and it’s reply, Annexure no. CA-10 , CA-11A & CA-11B showing the qualification of Dr (Mrs) Mani Bhatnagar, Annexure no. CA-12 to CA-15 showing the qualification of Dr Sanjai Bhatnagar the deponent, Annexure no. CA-16 the photo copy of invoice cum gate pass dated 24-05-1997 of Truscop II equipment for the purpose of cardiac monitoring, Annexure no.CA-17 the photo copy of invoice dated 22-12-1997 of Anaesthesia Unit, Annexure no.CA-18 copy of invoice dated 14-11-2000 for Medisys Medivant Servo Ventilator, Annexure no.CA-19 to CA 22 the medical record furnished to the complainants, Annexure no.CA-23 photo copy of affidavit of Dr Ajai Singhal cardiologist summoned for the patient, Annexure no.CA-24 the typed copy of FIR, Annexure no.CA-25 copy of FR, Annexure no.CA-26 & CA -27 photocopy of post mortem report and visra report, Annexure no.CA-28 copy of statement of Dr Nagendra Prashad stating no anaesthesia found in visra of the deceased, Annexure no.CA-29 copy of statement of Dr SRP Misra stating that excess of Anaesthesia shall always be found in visra, Annexure no.CA-30 typed copy of statement of Dr DD Misra further stating that excess of Anaesthesia shall always be found in visra, Annexure no.CA-32 copy of protest report filed by complainants before the court, Annexure no. C A-32 photo copy of order dated 17-04-2004 by ACJM Court no. 8, Annexure no.CA-33 & CA 34 photo copies of orders from HC showing the Revision Petition pending in the High Court.
Affidavit dated 29-03-2005 sworn by the opposite party no. 3 Dr. K K
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Singh in support of his case annexing the photocopy of the Degree of M.B.B.S. in 1985 and Degree of M.S. (Arthopaedic Surgery) as annexures no. CA-1 and CA-2 and various other annexures similar to those which have already been filed by the opposite parties no.1 and 2 as aforesaid in support of the written statement.
Affidavit dated 10-11-2006 sworn by Dr. Sanjay Bhargava opposite party no. 2 thereby reiterating the facts of the written statement and annexing paper no. 1&2/ the original reports dated 18-01-2002&19-01-2002 pertaining to the tests conducted prior to the operation of the deceased, paper no. 3/the consent letter dated 20-01-2002 given by the wife of deceased for operation, paper no. 4/photocopy of the drugs list, paper no. 5/the copy of B.H.T., paper no. 6/information sent by him to police, paper no.7&8/photo copy of post mortem report & visra report.
Affidavits of Dr DD Bhardawaj, Dr Nagendra Prashad and Dr SRP Misra verifying the facts that on examination there was no Anaesthesia found in the visra of deceased in this case.
Perusal of the pleadings of both the parties revealed that almost all the relevant facts of accident, medical treatment of the deceased in the Hospital of O.P.s, the death of the deceased in the operation theatre are not disputed except the dispute as to, whether the pre-operation tests were not conducted by the O.P.s. and the Hospital of the O.P.s was not well equipped with the necessary equipments and whether the death of the deceased was occurred due to access dose of anaesthesia.
We have heard Sri Rajesh Chadha, learned Counsel for the complainants and Sri Sushil Kumar Sharma, learned Counsel for the opposite parties and perused the entire record.
The learned Counsel for the complainants submitted that the
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opposite parties have not adopted settled line of treatment in this case as pre operational tests were not conducted at all and all the documents in this regard have been fabricated and forged by Dr. K K Singh and Dr. Sanjai Bhargava after the death of late Shri Jai Prakash Bhattanagar while he was never taken to Varshney Pathology which is evident from the fact that a notice was served upon the opposite party before filing of the complaint and in reply of the notice, it was not mentioned at all by the opposite party that Late Sri Jai Prakash Bhattanagar was at any time taken to Varshney Pathology on 18-01-2002 or any other date. It is also submitted that no sample was ever sent to lab of Dr. Varshney from the hospital of Dr. Sanjai Bhargava and, therefore, no question arises that Dr. Varshney had conducted any blood test of Late Sri Jai Prakash Bhattanagar. The photocopies of the reports filed with the affidavit of Dr. U S Varshney are completely false, baseless and fabricated and are not belonging to Late Sri J P Bhattanagar and that is why the original reports have not been brought on record. Similarly the alleged X-ray report of the deceased have not been mentioned in the reply of notice by the opposite parties and first time in the written statement, it has been alleged that reports of Varshney Pathology and of the chest X-ray were available.
We are not convinced with this submission of the learned Counsel for the complainant as to mere not mentioning the facts of tests in the reply of the opposite party to the notice of the complainant may not be a fact that there were no such tests were conducted before operation of the deceased Jai Prakash Bhattanagar while it has been clearly stated and proved on record by the opposite parties that on 18-01-2002, when Jai Prakash Bhattanagar was brought to Varun Hospital, he was not admitted on the said date due to pre-operation investigations which were to be conducted and due to non availability of Dr. K K Singh the Orthopedic surgeon and the attendants of the patient were suggested either to go to another hospital or in the meantime pre-operational pathological investigations/test be got conducted with a view to ensure the fitness of the patient for the proposed operation and the opposite parties in the meantime got such tests conducted as is evident from medical record that
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X-ray was conducted, blood pressure was recorded and monitored, blood sugar was done and accordingly blood samples were taken for hemoglobin and blood glucose test and thereafter the patient was admitted on 19-01-2002 at 8.00 p.m. Hence the entire facts and circumstances on record are evident that proper tests and investigations have been conducted by the opposite party before conducting the operation of late Sri Jai Prakash Bhattanagar.
It is also submitted on behalf of the complainant that in the criminal case against the doctors for which a revision has been filed by the doctors before the Hon’ble High Court, it has been admitted by both the doctors in the grounds of revision that no pre-operational tests were conducted as the patient did not give any history necessitating pre-operational medical test and this much admission do establish the case of the complainant that the required tests were not got conducted by the doctors before the operation. We are not convinced by this contention too as is contended by the learned Counsel for the complainant because whatever may be the grounds of revision before the Hon’ble High Court against the order passed in criminal case against the doctors, may not be an evidence in this case wherein the opposite parties have filed proper evidence to prove this fact that the pre-operational tests were got conducted and in this regard the evidence of Dr. U S Varshney by whom the pre-operational tests were done can neither be washed out nor be disbelieved. More so, alleged admission in criminal revision seems to have been done in respect to the findings of the Magistrate against which the revision has been filed and which was pertaining to the pre-operational test for heart ailment. The alleged admission of the doctors in the criminal revision saying thereby that the learned Magistrate has erred in observing that there was not necessary for Echo cardiogram or other such tests as the patient never given the history of such problems as mentioned in the BHT, the patient was in normal condition, is not a fact of admission that pre-operational tests pertaining to the operation of orthopedic field of the deceased were not conducted. So far as the question of tests pertaining to heart ailment is concerned, since there was no history of any cardiac problem for the patient and which is an admission of the complainant too, we are
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convinced with the contentions of the learned Counsel for the opposite parties that such type of tests were not necessary and specifically in these conditions where the hospital of the opposite parties was properly equipped as is evident by the opposite parties. In this regard the contention of learned Counsel for the complainant that as per settled line of treatment, if a patient is of aged about 40 years, then prior to the operation, ECG, Chest X-ray, RFT, LFT, CBC and blood sugar tests are mandatory and unfortunately none of these tests were conducted at all by the opposite parties prior to the operation of the deceased is not tenable as we have observed that since admittedly there was no cardiac history of the deceased, the alleged test's necessity cannot be established in the absence of expert report of any medical authority in this regard. However, the complainant tried thereby filing a report from Prof. Vineet Sharma, Department of Orthopaedic Surgery in which it is stated that ECG is essential in cases of patient with history of cardiac disease and cardiac symptoms such as angina, chest pain, dysponea. The age at which ECG is routinely done is quite controversial though it is routinely recommended in patients over 50 years of age even if there are no symptoms of cardiac disease. Firstly this report has not been evidenced by the affidavit of Dr. Prof. Vineet Sharma. Secondly, if for the sake of argument it is admitted, even then it shows that ECG is essential in case of patient with history of cardiac disease and since it is an admitted case of the complainant that the deceased was not having any cardiac disease, this report of Dr. Prof. Vineet Sharma hardly helps the complainant in this regard and specifically since the deceased in this case is said to be 44 years old.
It is further contended on behalf of the complainant that even the certificate alleged to have been issued by Dr. Ajai Singhal and filed on record shows that the patient had expired before he reached the hospital while the affidavit of Dr. Sanjay Bhargava mentions that the treatment was given to Jai Prakash Bhattanagar by Dr. Ajai Singhal and this contradiction itself shows that in fact Jai Prakash Bhattanagar died on operation table due to negligence of Dr. Sanjai Bhargava and Dr. K K Singh and Dr. Ajai Singhal never given any treatment to Jai Prakash Bhattanagar who had expired much before the time allegedly Dr. Ajai
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Singhal reached the hospital. No doubt the treatment does not seem to have been given by Dr. Ajai Singhal who was called for due to cardiac arrest of the patient but since the cardiac arrest is such type of disease that no one can predict as to under what circumstances and for what a period such eventually can occur. A perusal of the record shows that whatever may be the best treatment even in case of cardiac arrest to the patient that was given by the opposite parties even thereby calling the expert of this field too. As per affidavit of Dr. K K Singh the opposite party, the sudden heart attack was so abrupt that all the mechanism monitoring the physical condition of the patient could not facilitate in advance the comprehension of the complication leading to massive cardiac arrest and in consonance of such massive cardiac arrest, the patient died.
In this regard the law as is discussed in the following citation is perused and we are convinced that there had been no negligence on the part of the O.P. in the treatment given by them to the deceasd.
UNION TERRITORY CONSUMER DISPUTES REDRESSAL COMMISSION, CHANDIGARH in the case of BARINDER KAUR versus CHANDER MALHOTRA (DR.) & ORS Appeal Case No. 1255 of 2000(Pb)/RBT No. 137/2007 decided on 31.7.2007 have also dealt to similar situation and held in the case of removal of Tonsils, where the deceased had visited respondent doctor to get throat checked and he was advised to undergo operation for removal of tonsils. Prior to operation, deceased was subjected to sensitivity test, no reaction shown but during operation, deceased suffered sudden cardiac arrest. Emergency treatment given, unsuccessful. Complainant alleged death caused due to reaction with intravenous injection. Post-mortem report negated allegation. No negligence on part of respondents was held.
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MUMBAI in REKHA V. KAMBLE & ORS versus DR. M.M. AGRAWAL & ANR, Complaint No. 56 of 1996 decided on 14.7.1999 reported in III (1999) CPJ 75 have also found Claim not sustainable in the case of abdominal pain, intestinal obstruction retention of urine and fever where Urgent operation was performed and had Myocardial infarction with cardiac arrest caused the death of patient.
It is Held : The complainant has not been able to tender any independent evidence to show that the opposite party Doctors were negligent. Even the post-mortem report has not been obtained by the complainants. We, therefore, feel that this being the case of myocardial infarction with cardiac arrest, no negligence can be attributed. The operation was urgent as there was intestinal obstruction which caused retention of
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urine and also the fever. We, therefore, feel that the claim is not sustainable and has to be rejected.
UTTARANCHAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION, DEHRADUN in the case of SANJAY HASTIR versus SHUBHAM SURGICAL CENTER AND NURSING HOME & ORSAppeal No. 08 of 2005 decided on 17.3.2005 reported in II (2005) CPJ 287 have held in reference to alleged Medical Negligence in surgery that suspicion howsoever strong, cannot form part of proof and unless proved that some important nerve has been cut down by doctor, the doctor cannot be said to be negligent. Patient died soon after operation, but death is no ground to presume negligence. Deficiency or negligence not proved. Life and death is in hands of God, unless deficiency in service of doctor proved, no compensation can be awarded. In the absence of expert evidence to prove any negligence of doctor, mere allegation will not suffice. Obligatory duty of complainant to have got the post-mortem of dead body to be sure if there was negligence on part of doctor, but it was not done. No ground to presume negligence of doctor is found established.
Hon’ble NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI in the case of RAMJI LAL versus M/S. SARVODAYA MEDICAL reported in II (1995) CPJ 234 (NC) First Appeal No. 4 of 1993, decided on 17.2.1995 has held, where complainant got his two months son treated from a Paediatric and Death was caused, as follows;
Held : We have again gone through the record as to the cause of death. The child was admitted to Sir Padampat Mother and Child Health Institute, Jaipur on 30th of July, 1990. The child died on 31st July, 1990 at 4.00 p.m. A photo copy of the death certificate dated 16th August, 1990 has been filed and is Annexure C-3 to the appeal. The certificate shows that the child was admitted on 30th July, 1990 at 10.00 a.m. for Cyanotic CHD-RD and the final diagnosis is Cyanotic CHD-RD and expired on 31st July, 1990 at 4.30 p.m. The cause of death is given as Cyanotic C.H.D.-CH.F. The certificate clearly shows that the child was admitted to Sir Padampat Mother and Child Health Institute, Jaipur on 30th July, 1990 for treatment of Cyanotic CHD with RD (Cyanotic Congenital Heart Disease with Respiratory Distress) and not Diarrhoea. The cause of the death of the child is not Diarrohoea but Cyanotic Congenital Heart Disease with Congestive Heart Failure.
Even if there is negligence of the Opposite Party in dispensing a wrong medicine, it has no consequences because of the provisions of Section 14(1)(d) of the Act. Section 14(1)(d) has been considered by the National Commission in various decided cases. It has been laid down that the award of compensation by the Redressal Agencies established under the Act has to be made only on well recognised principles governing the quantification of damages or compensation and not arbitrarily. Compensation can be awarded to a consumer only in respect of any loss or injury found to have been suffered by him due to the negligence of the Opposite Party. It is of the essence of Section 14(1)(d) that the loss or injury for which compensation is
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to be adjudged and awarded should be found to have been caused by the negligence of the Opposite Party. The Complainant has to establish that there was negligence of the Opposite Party and that as a consequence thereof loss or injury was suffered by him. In this case the negligence of the Opposite Party is not the cause of the death of the child.
Regarding the death occurred either by way of excess dose of anesthesia by the opposite parties or due to cardiac arrest of the deceased, though the case of the complainants remained firstly based on these facts that the death of the deceased was occurred due to excess dose of anesthesia by the opposite parties but later on looking into the entire facts and circumstances on record that there is no symptom of excess dose of anesthesia found available in any of the factual circumstance as well as the postmortem report, visra report, the complainants based their case of death by cardiac arrest of the deceased due to anesthesia and further due to not taking proper precautions by the opposite parties in this regard. It is submitted on behalf of the petitioners that as per settled line of treatment of a patient in the age of above 40 years, prior to operation, ECG, Chest X-ray, R.F.T., L.F.T. C.B.C. and blood sugar tests are mandatory and as per standard treatment in a case, when patient suffers cardiac arrest during operation, continuous external cardiac massage and constant ventilation of lungs and immigrate infusion of Sodium Bi Carbonate is necessary but this line of treatment was not adopted by Dr. Sanjay Bhargava and Dr. K K Singh and in this regard merely a certificate of Dr. Ajay Singhal produced by O.P.s does not prove these facts as to that any such treatment if was given by Dr. Sanjay Bhargava because the certificate discloses merely the fact that the patient was expired before his reaching to hospital. It is also submitted on behalf of complainants that not only this, since no such fact has been found ascertained in the postmortem report that the death of the deceased was occurred due to cardiac arrest or excess does of anesthesia, it was incumbent upon O.Ps to explain and which has not been explained as to how the anesthesia was given. In what manner, it was given, it can be explained only by the doctors who were present at the time of operation and who conducted the operation and how an another doctor named Dr. Nagendra Prasad the affidavit of whom has been filed
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by the opposite parties came to know that the anesthesia was given in mussels.
We are not convinced with the above contentions raised on behalf of the complainant because the ample evidence is on record that there was no effect of anesthesia found in any of the report on record and it cannot be ruled out that the deceased was died merely due to cardiac arrest. Dr. DD Bhardwaj of M.S. Hospital, Aligarh had found that both the chambers of heart were found full of blood at the time of conducting postmortem. In this regard though the allegations further have been made by the complainant that the opposite parties were not equipped with the proper equipments for management of emergency in the operation theatre and even oxygen was arranged just before communication of death and the cardiac arrest to the deceased due to wrong administration of anesthesia by the negligence of the opposite parties and as a matter of fact the death was due to failure of lungs and also due to carelessly taken up the operation by the opposite parties but these allegations do not find place on record in the light of the evidence adduced by the opposite parties that the patient was not having any history of cardiac problem and any other problem effecting the cardiac health and this fact has also been admitted by the complainant in his complaint and the sudden heart attack was so abrupt that all the mechanism monitoring the physical condition of the patient could not facilitate in advance the comprehension of the complication leading to massive heart attack.
So far as the question of equipments for the treatment in the hospital is concerned, the affidavit of Dr. Sanjay Bhargava opposite party no.2 is on record elaborately mentioning the equipments with the hospital and the operation theatre of the opposite party was well equipped with Truscope II with all accessories for the purpose of cardiac monitoring, Mini Major Anesthesia Unit with Oxygen Failure Alarm, Medisys Medivent Servo Ventilator which were available in the hospital. Since as per report on record stating that no anesthesia found in visra of the deceased, the allegation of the complainant that the cardiac arrest had been the result of excess dose of anesthesia cannot be said to have been
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established on record.
The law relating to medical negligence is well discussed and established in the following cases :-
In the case of Kusum Sharma & Ors Vs. Batra Hospital and Medical Research Centre & Ors, (2010) 3 SCC 480 Hon’ble Supreme court has held that:
"While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
1- "Negligence is the breach of duty exercised 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.
2- Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3- The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4- A medical practitioner would be liable only if his conduct fell below that of the standards of a reasonable competent practitioner in his field.
5- In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6- The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as proving greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a
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professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7- Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8- It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
9- It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10- The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11- The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
Hon’ble Supreme court in the case of C.P Sreekumar (dr) vs. S.Ramanujam 2009 (7)-SCC 130 (Paragraph :-37) has held :
“ Quote :- 37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob
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Mathew case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.” Looking into the law as is aforesaid and the facts as have been elaborately discussed above, we are of this view that this is not a case of medical negligence rather it had been a case of the death of the patient due to massive cardiac arrest beyond expectation and control of the doctors. Hence, we do not find any substance in this complaint which deserves to be dismissed.
ORDER
The aforesaid complaint is hereby dismissed. Both parties have to bear their own cost.
Let copy of this order be made available to the parties as per rules.
(JUSTICE VIRENDRA SINGH)
PRESIDENT
( SMT. BAL KUMARI )
MEMBER
Pnt
