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Saturday, February 9, 2013

What constitutes medical negligence is now well established [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be followed: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated. Applying these principles in the instant case, we are of the view that there was no medical negligence or deficiency in the instant case, where after careful clinical diagnosis and required tests the CABG was conducted by qualified doctors using their best professional judgment in a well-equipped and reputed hospital. This fact has also been confirmed by the report of the medical expert from AIIMS. 11. We, therefore, uphold the well-reasoned order of the State Commission and dismiss the present first appeal. No costs.


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
          FIRST APPEAL NO. 4 OF 2007
(Against the order dated 24.11.2006 in Complaint No. 80/2002 of the Karnataka State Consumer Disputes Redressal Commission)

Sri M.R. Virupaksha               
S/o Late M.R. Krishna Rao
Aged about 64 years
No.15, 14th Main, MICO Layout
Mahalakshmipuram
Bangalore-560086, Karnataka                         …      Appellant
Versus
1. M/s Wockhardt Hospital & Heart Institute
No.14, Cunningham Road
Bangalore-560042, Karnataka
Rep. by General Manager                      

2. Dr. Vivek Jawali
Chief Cardio Thorasic Surgeon
M/s Wockhardt Hospital & Heart Institute
No.14, Cunningham Road
Bangalore-560042, Karnataka                          …      Respondents

BEFORE:
          HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER

For Appellant                     :   Mr. S.N. Bhat, Advocate
For Respondents-1&2      :   Ms. Geeta Handa Khanuja, Advocate

Pronounced on  8th February, 2013

ORDER

PER VINEETA RAI, MEMBER

1.      This first appeal has been filed by Shri M.R. Virupaksha, Appellant herein and Complainant before the Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred to as the State Commission), being aggrieved by the order of that Commission which had dismissed his complaint of medical negligence made against M/s Wockhardt Hospital & Heart Institute and Dr. Vivek Jawali, Opposite Parties before the State Commission and Respondents No. 1 and 2 respectively herein.
2.      In his complaint before the State Commission, Appellant stated that his wife Smt. Geetha Virupaksha (hereinafter referred to as the Patient) was suffering from heart ailment and believing the claims made by Respondent No.1 as being an institution of excellence for treatment of Cardio Vascular cases, he had got her admitted to the Respondent Hospital for Coronary Angiography on 18.09.2000, wherein she was entrusted to the medical care of Respondent No.2. Numerous tests were conducted on the Patient and thereafter Respondents unilaterally decided and conducted a Coronary Artery Bypass Grafting (CABG) surgery on the Patient on 20.09.2000 without prior intimation or consent of the Appellant and when the Patient’s clinical condition was not satisfactory and she was not fit for surgery.  According to the Appellant, the surgery was conducted for unjust enrichment and after the surgery she was discharged on 30.09.2000 when her condition was still critical and she was suffering from acute breathlessness, sweating, nausea apart from constant oozing of blood from the chest region.  She was advised to come for further check-up on 03.10.2000.  Appellant brought the Patient for the check-up on the stipulated date with continued complaints of breathlessness, acute pain in the chest etc. but instead of examining her personally, Patient was entrusted to an Assistant for check-up who did so in a routine manner and asked the Appellant to again bring the Patient on 06.10.2000 since her blood pressure was very high and the fluid collection appeared to be severe.  When the Patient’s condition deteriorated further on 04.10.2000, the Appellant was advised to again bring her to the Respondent Hospital, when she was admitted to the surgical ICU at 8.00 p.m. and retransferred to the ward at 11.30 p.m.  Appellant was also advised to arrange for blood on 05.10.2000 and by the time he had made the necessary arrangement, he was informed that the Patient had suffered a cardiac attack and had been shifted to the surgical ICU, where she was kept from 05.10.2000 to 12.10.2000 on which date at about 2.00 p.m. she was again shifted to the ward.  Respondent No.2 did not care to visit and examine the Patient and she expired on 25.10.2000.  It was contended that the Patient died because of the careless and negligent attitude of Respondents, who in the first instance conducted the surgery when the Patient was not in a fit condition to undergo the same and without Appellant’s consent and then hurriedly discharged her when her condition was serious right from the time of her admission till her death.  Being aggrieved Appellant issued a legal notice to Respondents and on not receiving a satisfactory response, he filed a complaint before the State Commission on grounds of medical negligence and deficiency in service against both Respondents and requested that they be directed to pay him a total sum of Rs.13,93,000/- as compensation and costs.
3.      Respondents on being served vehemently denied these allegations and stated that when the Patient was admitted in Respondent No.1/Hospital, she had a history of co-morbidities, including diabetes and anaemia.  She was diagnosed with Ischemic heart disease and LV dysfunction and had undergone an angiography which confirmed her heart condition.  A CABG was, therefore, advised, for which Patient was referred to Respondent No.2.  It was only after discussions with the cardiologist and conducting a series of pre-operative tests to assess her clinical condition and fitness to undergo CABG, which required 4 grafts, that the surgery was conducted.  Thereafter she was kept in the ICU and her condition carefully monitored.  The fluid collection in her left pleura caused because of congestive cardiac failure had continued to ooze through the pleural drainage site and this was also managed with the required antibiotics, anti-fungal treatment and repeated dressings.  Patient’s scheduled discharge was postponed till her condition stabilized and she was discharged on 01.10.2000 in a satisfactory condition.  However, she was asked to come for follow-up visits and on each occasion she was carefully examined by Respondent No.2 and other senior doctors and thereafter readmitted to the Respondent No.1/Hospital when required.  It was emphasized that immediate cardiac surgery was necessitated since many of her arteries were blocked and despite best possible medical care provided in an institute of excellence by highly qualified doctors Patient expired because of her poor previous medical history. 
4.      The State Commission after hearing the parties and on the basis of evidence produced before it dismissed the complaint by observing as follows :
“10.     …  The complainant has not produced the evidence of any experts to show that the decision taken by the OPs to conduct CABG on the particular day was not proper and that CABG was conducted without making the patient fit for operation.  In the absence of expert evidence to show that the decision taken by the OPs to conduct the operation at that particular juncture was not proper, we are of the view that the complainant has failed to prove the deficiency on the part of the OPs in that regard.

11.       Similarly, the complainant has not produced any expert evidence to show that the treatment given by the OPs after the operation was not proper.  One of the charges made against the OPs after the operation is that the patient was discsharged from the Hospital before the wound healed completely.  The OPs have contended that the patient was asked to be brought for review 3 days after the discharge.  The patient was brought 3 days after the discharge and the patient was examined by Dr. Mallikarjun who is said to be a person well qualified to deal with heart ailments.

12.       The records produced by the OPs also go to show that the OPs have postponed the date of discharge so as to see that the patient was actually fit for discharge.  We do not find any valid ground to hold the OPs negligent in that regard.

13.       It is worth of note that the patient was already aged about 60 or 62 years at the time when she was admitted in the Hospital with the complaint of severe chest pain.  She already had triple vessel coronary artery disease.  She was a diabetic for more than 20 years preceding the admission.  Under such circumstances, if something has gone wrong after the operation and after the discharge from the Hospital, we fail to understand as to how the entire responsibility can be put on to OPs without there being expert evidence on the question. We are, therefore, of the view that the complainant has failed to prove negligence on the part of OP. …”

Hence, the present first appeal.
5.      When the case came up before a Bench of this Commission presided by Mr. Justice S.N. Kapoor on 24.08.2007, Appellant moved an application to take expert opinion of a Cardio Thorasic Surgeon, to which Respondents had no objection. This Commission, therefore requested the Director of the All India Institute of Medical Sciences (AIIMS) to appoint a Cardio Thorasic Surgeon to examine the medical and related records in the light of the complaint and written statement filed by the Respondents and give his opinion whether any medical negligence is attributed to the concerned doctors or otherwise.  A report from AIIMS has since been received, wherein it was opined that the charges of medical negligence on the part of Respondents “were definitely not substantiated”.
6.      Learned Counsel for both parties made oral submissions.
7.      Learned Counsel for the Appellant stated that from the evidence filed before the State Commission, it is clear that there was medical negligence and deficiency in service in the treatment of the Patient.  It was contended that the CABG operation was conducted without taking the consent of either the Appellant or the Patient’s daughter whereas when the angiography was done the consent of the Patient’s daughter had been taken.  Apart from this, there is evidence on record that the surgery was conducted in haste and contradictory findings were given in the medical record e.g. in the diagnosis dated 18.09.2000 signed by Dr. K.H. Srinivasa it was stated that the “LV angio was normal” and yet early CABG was recommended.  A similar contradiction is there in the deposition of Respondent No.2 (Dr. Vivek Jawali) before the State Commission, wherein he had denied that at the time of discharge the Patient was suffering from inter alia continuous oozing of blood from the chest region and subsequently stating that the blood continued to ooze because there was fluid collection in the left pleura since the Patient had congestive cardiac failure.  It was further contended that the report from the AIIMS was not a detailed investigation and the findings were perfunctory.  
8.      Counsel for the Respondents stated that the Appellant’s contention that the CABG surgery was conducted in a hurry for unjust enrichment and without taking the consent from the relatives and properly assessing the condition of the Patient, is factually incorrect as per the documentary evidence on record.  In this connection, it was specifically pointed out that the Cardiac Catheterisation/Angiography Report, which was filed in evidence before the State Commission, clearly indicated that CABG was required immediately in the interest of the Patient’s life because at least 4 of her arteries were blocked.  It was also denied that the Patient was not fit for surgery, which was conducted keeping in mind her past medical history and a careful clinical assessment of the essential parameters. The consent of a relative, namely K. Savitri, was taken, who was present with the Patient at that time.  Counsel for the Respondents pointed out that as per the detailed case history of the Patient, which is on record, it is clear that her condition was very carefully and regularly monitored and all steps were taken to check post-operative complications, like oozing of blood from the drain site, and only after this was controlled was she discharged.  During subsequent visits also the Patient was attended to by senior doctors, including Respondent No.2, and only the preliminary check-ups were done by the Assistant.  Further, discrepancies pointed out by the counsel for the Appellant are misconceived.  For example the recording that LV angio was normal meant that the procedure was conducted normally and without any adverse incident.  A specialist from AIIMS to whom all the necessary papers were made available has also independently concluded that there was no medical negligence on the part of the Respondents.  On the other hand, Appellant has been making false allegations without producing any evidence, including the evidence of a medical expert, to contradict the credible documentary evidence produced by the Respondents although there was onus on Appellant to do so.  It was reiterated that despite the best possible medical care given to the Patient by highly qualified doctors using their best professional judgment Patient expired because of her poor health condition and pre-existing serious ailments and not because of any medical negligence or deficiency in service.
9.      We have heard learned counsel for both parties and have carefully gone through the evidence on record.  It is apparent that the Patient required an immediate CABG procedure because of blocked arteries, which was detected following the angiography conducted on the Patient.  We note from the detailed medical records placed on file that a series of pre-operative tests were conducted before the surgery was undertaken and thereafter also there did not appear to be any negligence in the medical treatment and care of the Patient.  Her medical condition was assessed on a day-to-day basis.  Her discharge was also delayed by few days and only when her condition was stable was she discharged with specific written advice regarding follow-up visits.  The blood oozing from the Patient’s chest region has also been satisfactorily explained because as per medical literature it is known to occur in Patients who have been suffering from congestive cardiac failure.  We note that a Cardio Thorasic expert from AIIMS, to which the matter was referred by this Commission alongwith necessary records, has also concluded that no medical negligence or deficiency in the treatment of the Patient could be established.  Other allegations made by the Appellant against the Respondents are also not backed by any independent or credible evidence to support the same and are mere contentions.  We, therefore, agree with the State Commission that the Appellant on whom there was onus to do so has not been able to produce any credible evidence, including that of an expert, to prove that there was any medical negligence in this case.  While it is a fact that the Patient expired soon after the surgery, as stated earlier, there is no evidence that this was because of any medical negligence or deficiency in service but could be well explained by the fact that she had been suffering from serious coronary artery disease apart from diabetes and some other co-morbidities for some years and unfortunately despite the CABG her life could not be saved.
10.    What constitutes medical negligence is now well established 
[Jacob Mathew v. State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be followed:
 (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; 
(ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and 
(iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.    

Applying these principles in the instant case, we are of the view that there was no medical negligence or deficiency in the instant case, where after careful clinical diagnosis and required tests the CABG was conducted by qualified doctors using their best professional judgment in a well-equipped and reputed hospital.  This fact has also been confirmed by the report of the medical expert from AIIMS. 
11.    We, therefore, uphold the well-reasoned order of the State Commission and dismiss the present first appeal.  No costs.


Sd/-
(ASHOK BHAN, J.)
PRESIDENT


Sd/-
(VINEETA RAI)

MEMBER


Mukesh  

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