NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 56 OF 2006
(Against the order dated 10.11.2005 in Original Complaint Case No. 51 of 2000 of the Punjab State Consumer Disputes RedressalCommission, Chandigarh)
Suresha Nanda ......... Appellant
s/o Sh. Nitya Nand
r/o Main Bazar, Una, Himachal Pradesh
Versus
Dr. Anoop Kumar ........ Respondent
M.S., MCH (Urology)
Consultant in Urology
Modern Hospital, Hoshiarpur, Punjab
BEFORE:
HON’BLE MR. JUSTICE R. C. JAIN, PRESIDING MEMBER HON’BLE MR. ANUPAM DASGUPTA, MEMBER
For the Appellant : Ms. Amita Gupta, Advocate with
Mr. Sureshanand (Appellant) in person
For the Respondent : Mr. Atul Nehra, Advocate
Dr. Anoop Kumar in person
Dated: 14th March, 2012
ORDER
PER JUSTICE R.C.JAIN, PRESIDING MEMBER
The present appeal is directed against the order dated 10.11.2005 passed by the Punjab State Consumer Disputes RedressalCommission, Chandigarh ( in short, ‘the State Commission’) in complaint case no. 51 of 2000. By the impugned order, the State Commission has dismissed the complaint alleging medical negligence in the treatment of his wife Smt. Sushil Kumari, aged about 55 years which led to her death on the day of operation itself and hence claiming a compensation of Rs.15,82,729/-
2. At the outset, we may note that the complaint was earlier decided and dismissed by the State Commission vide order dated 10.10.2002 holding that there was no expert evidence to establish the negligence or deficiency in service on the part of the opposite party. Aggrieved by the said order, the complainant had filed FA No. 462/2002 before this Commission. This Commission vide order dated 03.03.2004, allowed the appeal of the complainant and remanded the case back to the State Commission by observing as under:
“Appellant was the complainant. Surgery of the wife of appellant was conducted by respondent / opposite party on 15.09.98. However, she died the same day around 7.00 PM. Complaint filed by the appellant claiming compensation was dismissed by the State Commission by order dated 10.10.2002. In support of written version, the respondent has filed his own affidavit and that of Dr. Puneet Uppal and Dr. Mool Chand Jain who assisted him in performing the surgery. Shri Marwaha contends that application seeking cross-examination of the respondent and his two witnesses was filed by the appellant before State Commission but the same was declined by order dated 18.09.2002. Their cross-examination would have revealed that there was negligence in treating the wife of appellant by the respondent. On the other hand, Shri Gogia urges that as the appellant had not filed any revision against the order dated 18.09.2002, it is now not open to the appellant to assail that order. To be noted that in ground of appeal, it is pleaded that application seeking cross –examination of the respondent and his two witnesses were erroneously dismissed by the State Commission. In our view, even if the order dated 18.09.2002 was not challenged by the appellant by filing revision, it is open to him to challenge the correctness thereof in this appeal. Appellant ought to have been allowed cross-examination of the respondent and his said two witnesses to support the allegations in regard to the respondent being negligent in treating the wife of appellant who died on the same date of surgery itself. Case, thus, deserves to be remanded to State Commission for complaint being decided afresh on merits after affording opportunity to the appellant to cross –examine the respondent and said two witnesses.
Accordingly, while allowing the appeal, the order dated 10.10.2002 is set aside and case remanded to State Commission for complaint being decided afresh on merits after affording opportunity to the appellant to cross-examine the respondent and said two witnesses.
Parties shall appear before the State Commission on 19.04.2002 for directions”.
3. Pursuant to the directions given by this Commission, cross examination of the opposite party-dr. Anoop Kumar and his witness Dr. Puneet and Dr. Mool Chand was conducted on behalf of the complainant. The State Commission, after consideration of the testimony of the above named witnesses, once again dismissed the complaint holding that the complainant had failed to establish any medical negligence or deficiency in service on the part of the opposite party in the treatment of Smt. Sushil Kumari, by observing as under:
“The affidavits and the cross examinations of the witnesses referred to above make it very clear that Smt. SushilKumari was treated and operated as per medical ethics. The complainant has failed to mention anything which the opposite party-doctor should have done or should not have done either in treating the patient or while operating her. The main thrust of the complaint is that all tests which were required to be done before the operation were not done whereas the stand of Dr. Anoop Kumar is that such tests were got done and the same are in the possession of the complainant. To the same effect is the statement of Dr. Puneet Uppal referred to above and he had seen the patient’s history, previous record including test reports which were with the patient’s attendant. The stand of the opposite party is that such tests remain with the patient was these tests were done on the deceased as OPD patient. The stand of the opposite party has to be believed in the absence of any evidence to the contrary produced by the complainant that the opposite party was supposed to retain the tests reports with him. Further, the complainant has failed to establish from the available record that there was any negligence in operating the deceased Smt. Sushil Kumari. The doctor cannot be held negligent to convert the Laproscopy surgery into conventional open cholecystectomy surgery when the laproscopy surgery failed.
The complainant has failed to establish any negligence on the part of opposite party. Accordingly, the complaint fails and is hereby dismissed. However, there will be no order as to costs”.
4. It is in the above circumstances that complainant has approached this Commission with the present appeal.
5. Before we advert to the contentions and submissions made on behalf of the parties, it seems to be desirable to note the background of the present complaint. Prior to filing the complaint before the State Commission, the 0complainant had filed a complaint before the District Consumer Forum, Una, Himachal Pradesh being complaint case no. 58A/99 in respect of the same cause of action claiming a compensation of Rs.5,00,000/- from the opposite party as also a sum of Rs.1,00,000/- as interim / immediate relief. As the trial of the complaint was in progress before the said Forum, the complainant filed an application for withdrawal of his complaint with liberty to file a fresh complaint before the appropriate Consumer Forum on the premise that the loss suffered by the complainant was much higher, viz., to the extent of Rs.5,82,729/- which was beyond the pecuniary jurisdiction of the District Forum. The said application was granted by the District Forum vide its order dated 29.02.2000 with the direction that unexhibited documents be returned to the parties against proper receipt. After that the complainant filed complaint No. 55 of 2000 before the State Commission on 26.06.2000 which was numbered as 51/2000. In this complaint, the complainant claimed a total compensation of Rs.15,82,729/-.
6. The complaint before the State Commission was filed with the averments and allegations that Smt. Sushil Kumari, wife of the complainant aged about 55 years was having stones in her gall bladder for which she was receiving treatment from local doctor and atG.B.Pant Hospital, New Delhi. In July 1998, wife of the complainant suffered severe pain in her abdomen. Complainant approached the opposite party-Dr.Anoop Kumar at Modern Hospital, Hoshiarpur for consultation and treatment. After check up and investigations, opposite party diagnosed / confirmed it as a case of stones in the gall bladder and advised Cholecystectomy through laparoscopic procedure. Accordingly, he treated the patient Sushil Kumari with certain medicines till the time she underwent the said procedure. Sushil Kumari visited the opposite party at regular intervals and finally, as per the advice of the opposite party – doctor, agreed to undergo the laparoscopic surgery for the removal of stones from the gall bladder which was scheduled for 15.09.1998 at the nursing home / hospital of opposite party. The case of the complainant is that on the scheduled date, i.e., 15.09.1998, the wife of the complainant was taken to the operation theatre at about 8.00 A.M. after getting consent of her son-in-law for laparoscopic surgery. The complainant and other family members present at the hospital waited outside the operation theatre and they did not receive any information about the well-being of Sushil Kumari till 1 P.M., when the opposite party came out of the operation theatre and showed eight pieces of stones to the complainant saying that those pieces had been removed during the operation of the gall bladder of the wife of the complainant. The complainant who himself claimed to be qualified GAMS medical practitioner, however, noted that two pieces of stones were crushed and so he came suspicious and inquired with the opposite party – doctor about the condition of his wife but the opposite party – doctor without giving any response returned to the operation theatre. Complainant and his family members continued to wait outside the operation theatre till 5.00 P.M. when again the opposite party – doctor appeared and informed the complainant that condition of the patient was serious and two units of blood was immediately required. Blood was arranged in no time but it was not transfused to the patient and at about 7 PM, the opposite party declared that Sushil Kumari had died.
7. Case of the complainant is that from his personal experience and the circumstances, the complainant holds the firm opinion that death of his wife had occurred due to gross negligence of the opposite party at the time of operation, as also at the pre-operational stage because before the operation of the deceased, no thorough check-up was done to determine the general health status of the patient; no specialist doctor was present to give anaesthesia nor anybody remained present during the operation; the arrangement of blood was also not done before starting the operation and that the opposite party – doctor had switched over to conventional cholecystectomy procedure without obtaining any specific consent for such a procedure because initially the patient was booked for laparoscopic procedure. It is also alleged by the complainant that the cause of the death given by the opposite party in the treatment chart “cardiac arrest” was false and fabricated. Complainant claims to have suffered irreparable loss on account of the untimely death of his beloved wife besides mental agony and sorrow and also monetary loss due to depreviation of the income which the wife of the complainant would have generated from her salary as she was employed as a head of government primary school at a salary of about Rs.12,000/- per month. Complainant, therefore, claimed a sum of Rs.10,00,000/- towards compensation for the mental agony and sorrow and Rs.5,82,739/- towards the loss of income from the salary of his wife.
8. The complaint was resisted by the opposite party-doctor by filing a written version not disputing the factum that patient SushilKumari was examined by him in July 1998 and was diagnosed with stones in her gall bladder. He gave her requisite treatment and advised laparoscopic surgery for the removal of stones which was scheduled for 15.09.1998. It is also not denied that to begin with, the surgery was started as a laparoscopic procedure but finding dense adhesions in the gall bladder area, the said procedure was abandoned and conventional open surgery was resorted to. It is also not denied that Sushil Kumari breathed her last on the same evening at 7.00 P.M. However, all other allegations made by the complainant, including those like grave negligence on the part of the opposite party, absence of any anaesthetist at the time of surgery for giving anaesthesia as also that no pre-operative tests were conducted to ascertain if the patient was fit for such surgery have been denied. It is sought to be explained that requisite consent was obtained from the son-in-law of the deceased which included the consent for conventional open cholecystectomy procedure. The circumstances under which the deceased died are sought to be explained by stating that the open surgery was uneventful and concluded at about 9.30 A.M. when the patient was found to be quite stable and was shifted to a ground floor room of the hospital. After that the relatives and friends of the patient were with her. However, around 2.45 P.M., the patient complained of chest pain, palpitation and breathlessness and so the opposite party immediately examined her and she was found to have increased heart rate ( 120 per minute), slightly low B.P. (100/60 ) and mild chest congestion. The opposite party immediately summoned Dr. Puneet Uppal who was working as medical specialist in the hospital of the opposite party who advised E.C.G. which showed acute coronary insufficiency and, therefore, requisite treatment was started on those lines but despite all efforts, the patient did not respond to the treatment and she ultimately died at about 7.00 P.M. It is denied that there was any negligence pre-operative, per operative or post-operative in the treatment of Sushil Kumari at the hands of opposite party or any other doctor of the hospital.
9. In the rejoinder, complainant controverted the objections and pleas raised by the opposite party-doctor and generally reiterated the averments and allegations made in the complaint.
10. We have heard Mrs. Amita Gupta, Advocate, learned counsel representing the appellant as well as appellant in person and Mr.Atul Nehra, Advocate, learned counsel representing the respondent with respondent in person and have considered their respective submissions.
11. Bearing in mind the undisputed factual position that Smt. Sushil Kumari who was originally booked for laparoscopic cholecystectomy underwent conventional open cholecystectomy at the hands of the opposite party in the morning of 15.09.1998 under general anaesthesia and she breathed her last on the same evening at about 7.00 P.M. due to cardiac complication, the important question which needs to be considered and answered is as to whether the opposite party committed any acts of commission or omission for which he can be held guilty of medical negligence and / or deficiency in service in the treatment afforded by him to Smt. SushilKumari. The State Commission on consideration of respective pleas and evidence and material brought on record has returned a negative finding in that behalf and dismissed the complaint. The said finding and order is sought to be assailed as erroneous and illegal mainly on the ground that the same is not based on appreciation of the facts and circumstances and the evidence and material brought on record in correct prespective. From the submissions made by the learned counsel for the appellant, the following instances of alleged medical negligence can be culled out:
(i) Opposite Party-Doctor failed to conduct / get conducted any pre -operative test(s) before embarking upon the surgery on 15.09.1998.
(ii) No specific consent was obtained for conducting the conventional / open cholecystectomy.
(iii) Opposite Party-doctor Anoop Kumar did not associate any anaesthetist for administering anaesthesia and medical specialist for monitoring the status of the deceased – patient during the surgical procedure.
(iv) Patient’s condition was never stable and she was not shifted from operation theatre and she died in the operation theatre itself.
(v) No medical specialist or cardiologist was summoned and their services obtained to manage the patients’ cardiac complication.
(vi) Dr. Puneet Uppal who claims to have managed the cardiac condition of the patient was not qualified to do so.
(vii) Complainant’s request for post mortem examination on the body of deceased was not entertained.
We propose to deal with the above instances one by one.
12. The foremost contention put forth on behalf of the appellant is that no pre-operative blood tests like Hb, BT, CT, Blood Urea, Serum Creatinine, Fasting Blood Sugar, Serum Bilirubin and other clinical tests like ECG were conduct on Smt. Sushil Kumari and she was not declared fit to undergo the surgical procedure like cholecystectomy before the procedure was conducted. It is not disputed by the opposite party-doctor that the above referred tests were necessary to judge the suitability of the patient to undergo such a surgical procedure. Case of the opposite party, however, is that the patient was in fact subjected to these tests on 14.09.1998 before the actual procedure and based on the result of the said tests, the patient was declared fit to undergo the procedure. It is pertinent to note that no record of such blood and other tests which are claimed to have been conducted on the patient has been produced, although some other medical record has been produced. The non-production of the record of these tests and the fitness certificate is sought to be explained by the opposite party on the plea that this was part of the OPD record which remains with the patient / attendant of the patient and not retained by the hospital and, therefore, it could not have been produced by the opposite party doctor. In this regard support is sought from the affidavit of Dr. Anoop Kumar. Dr. Anoop Kumar deposed in his affidavit that the patient was thoroughly checked up and investigated before the operation. However, when he was subjected to cross-examination pursuant to the directions of this Commission, he stated that he had seen the OPD record which was with the patient including the investigation reports and other details and on goingthrough the same, he was of the opinion that the patient was fit for surgery. OPD records including the investigation reports were however not attached to the Bed Head Ticket and were rather kept by the patient himself / herself. When he was confronted with the photocopies of the medical record produced by him, he admitted that no other record concerning her was available with the hospital except one ECG report which was not attached with the record. Dr. Puneet Uppal who is stated be a medical specialist has tried to support the case of Dr. Kumar by stating that he had seen the patient’s history / previous records which included the test reports which were attached to the Bed Head Ticket as these are considered to be an OPD record. He, however, admitted that he did not examine the patient Smt. Sushil Kumari earlier to 3.00 P.M. on 15.09.98, i.e., after the patient had already suffered the cardiac complication. From the statement of Dr.Uppal, it is clear that no pre- operative tests were conducted on the patient at the hospital of the opposite party. Complainant on the other hand, has made a categorical deposition that no pre-operative tests were conducted on 14.09.98 and the patient was straightaway ushered in to the operation theatre at about 8.00 A.M. on 15.09.98.
13. In this case, as per the opposite party’s own admission, the patient Sushil Kumari was, to begin with, booked for laparoscopic cholecystectomy, which itself was a major surgery involving some element of risk. It is not denied that the patient was about 55 years of age at the relevant time and, therefore, in the opinion of this Commission, it was mandatory on the part of the opposite party-doctor to have conducted requisite blood and other tests in order to assess the fitness of the patient to undergo such a major surgery. Ideally, these tests should have been conducted a day prior to the scheduled surgery. Even if it is presumed that such tests were actually carried out at some diagnostic centre other than at the hospital of the opposite party on the basis of which the opposite party found the patient fit for surgery, the same should have formed part of the hospital record. It is admitted by the opposite party that an ECG was done and test report was available but it was not produced before the State Commission or this Commission. It is also worth noting that the opposite party-doctor Anoop Kumar is a surgeon and not a physician / medical specialist and, therefore he may not be fully competent to declare the patient fit for surgery particularly with regard to cardiac parameters. This is admitted by the opposite party to the extent that declaration of such fitness for surgery was required, though not necessarily from cardiologist but from a medical specialist. He also admitted that the anesthetist has to examine the patient pre-operatively. Nothing has been brought on record that the patient Sushil Kumari was examined pre-operatively by any anesthetist, much less by Dr. Mool Chand Jain who is claimed to have administered anaesthesia to the patient.
14. Thus, on consideration of the evidence and material brought on record and the submissions put forth on behalf of the parties, this Commission has no hesitation in holding that the opposite party has failed to establish on record that the pre-operative test which were necessary to decide the fitness of the patient for undergoing such a major surgery were actually conducted. This omission, in our opinion, is a glaring act of deficiency in service on the part of the respondent-doctor. Non-production of the ECG report on record also raises a great doubt and adverse presumption is liable to be drawn against the opposite party, in particular due to the fact that soon after the surgery, serious cardiac complication developed which could not be successfully managed and the patient died of that complication.
15. Now, we come to the next allegation i.e., no specific consent for conducting conventional / open cholecystectomy. It is not denied that no separate / specific consent was obtained for conducting such a procedure. However, contention of the opposite party is that consent was duly obtained for conducting surgery including the open cholecystectomy under general anaesthesia. In this connection, our attention has been invited to a document prefaced as ‘indoor chart’ which we would like to reproduce here in order to judge as to whether the same amounts to valid consent.
“INDOOR CHART
Name : Sushil Kumari w/o Dr. Sureshanand age 55 years / F, address Opposite Old Hospital Arpit Medical Store,Una, Date of Admission 15/09/98, D.O.D. 15/9/98, Consultant Dr. Anoop Kumar Expired at 7 P.M.
Signature
Anoop Kumar
CONSENT:-
I, Vinod Kumar S/o, D/O, F/O Sushil Kumari hereby authorize Dr. Anoop Kumar or who so ever he / she may further depute for my treatment/currency. I am willing for my surgery under any kind of anaesthesia at my own risk. I understand fully the nature of my disease and surgery to be done. I authorize Dr. Anoop Kumar to carry out any additional procedure at the time of surgery, if so required. I have been explained all the risks of surgery. All the above mentioned facts have been explained to me in my own language. Chances of Lapro Failure explained
( Chol. With Cholithiasis)
Signature”
16. Mrs. Anita Gupta, learned counsel representing the complainant, on the strength of Supreme Court decision in the case ofSamira Kohli Vs. Dr. Prabha Manchanda & Anr. (2008) 2 SCC 1 submits that the above consent cannot be said to be specific / valid consent. In the said case, the Supreme Court held that since there was no consent by the patient for performing hysterectomy andsalpingo-oopherectomy, performance of such surgery was an unauthorized invasion and interference with the appellant’s body which amounted to tortious act of assault and battery and, therefore, amounted to deficiency in service. In the case in hand, the above referred consent obtained from Vinod Kumar, son-in-law of Sushil Kumari was given in general terms for conducting surgery under any kind of anaesthesia at the risk of the patient and Dr. Anoop Kumar was also authorized to carry out any additional procedure at the time of surgery. It also contains a statement that all the risks connected with the surgery have been explained including chances of failure of laparoscopic procedure. In our view, these stipulations in the consent form are comprehensive enough so as to include the consent for conventional open cholecystectomy on the failure of laparoscopic cholecystectomy. According to the opposite party-doctor, in the first instance, laparoscopy was attempted by doing Insuffolation and Telescope was inserted which showed the presence of adhesions in the gall bladder area and, therefore, laparoscopic procedure was abandoned and open cholecystectomy done. According to the learned counsel for the complainant, opposite party-doctor ought to have taken specific consent before resorting to open cholecystectomy and should have explained further risk involved in the said procedure once he found that laparoscopic procedure had failed. Ideally, it should have been done but it cannot be said to be always mandatory particularly when the consent already obtained had indicated that in case of failure of laparoscopic procedure, additional procedure could be resorted. Therefore, we are of the view that there was no negligence on the part of the respondent-doctor, at least in obtaining the consent for conducting conventional / open cholecystectomy particularly in view of the fact that opposite party encountered dense adhesions in the gall bladder area due to which the laproscopicprocedure had to be abandoned.
17. The next important allegation of medical negligence alleged by the complainant is that no anaesthesiologist and medical specialist were associated in administering the anaesthesia and for monitoring the status of the deceased-patient during the procedure in the operation theatre. According to the opposite party, before attempting laparoscopic cholecystectomy, general anaesthesia was administered to the patient by an anaesthesiologist, Dr. Mool Chand, who was employed with the Punjab State Government Medical Service and was posted at the Civil Hospital at village Halta during the said period. Complainant had alleged that neither Dr. Mool Chand Jain nor any other doctor was present in the operation theatre for administering anaesthesia. He even stated that since Dr. Mool Chand was present and attended the above referred dispensary in the village and had marked his presence in the daily attendance register on 15.09.98, he could not possibly be present at the operation theatre of the opposite party. In response to a request made by the complainant to the Civil Surgeon, Hoshiarpur, copy of the daily attendance register was made available to the complainant which has been filed on record, perusal of which would show that entry on the date 15.09.98 as also on 16.09.98 have been maneuvered inasmuch as the word “C.L.” has been written over the initials of Dr. Mool Chand Jain in the relevant boxes pertaining to these two dates. Manipulation made in the attendance register casts grave doubt on the plea of the opposite party that Dr. Mool Chand was in fact present at the operation theatre and had administered the general anaesthesia, although the said doctor in his testimony has tried to contend otherwise.
18. Learned counsel for the appellant has then invited our attention to the medical text book ‘Essentials of Anaesthesiology’ by ArunKumar Paul where the author lays emphasis on the pre-anaesthetic assessment, the stages relating to administration of anaesthesia, precautions which an anaesthetist should take to prevent cardiac complications and how to manage cardiac arrest, if it occurs. We would like to extract the relevant portions:
“PREANAESTHETIC ASSESSMENT
Whenever a decision is taken that a patient in the surgical outpatients’ department is to undergo an operation, he or she should be referred to the Preanaesthetic Clinic. Here the patient should be assessed carefully, treated if necessary and be made ‘fit for anaesthesia’. After taking the signal from this clinic, the patient should be admitted to the hospital for the operation. Undue delay of operation and prolonged stay in the hospital are thus avoided.
The preoperative visit should take place after admission. This is when the anesthetist meets his patient to examine him again and thus be up-to-date. This preoperative visit helps to make a good rapport between the patient and the anaesthetist. It also helps to allay preoperative fear, anxiety and tension by proper reassurance and an adequate sympathetic attitude.
Aims of preanaesthetic assessment
1. To know the physical condition of the patient.
2. To make the patient ‘fit for anaesthesia’ and operation.
3. To determine the operative risk, if any.
4. To choose anaesthetic agents and anaesthetic techniques for better and safe anaesthesia.
Routine considerations
Name : For identification
Age : Important for overall assessment, for calculation of drug dosage and so on.
Sex : Females are often afraid of anaesthesia and injections; they are more prone to nausea and vomiting.
Body Weight : Important for calculation of drug dosage; underweight and overweight (obese) patients need extra attention during and after anaesthesia.
Dental Hygiene : Dental infection may increase the incidence of postoperative lung complications; loose teeth may come out during laryngoscopy’ false teeth may be dislodged and cause respiratory obstruction and therefore should be taken out before induction of anaesthesia.
Jaws : Inability to open the mouth makes it difficult to perform laryngoscopy and intubation.
Neck : Extension of the neck is absolutely necessary for smooth intubation.
SOME INTRAVENEOUS ANAESTHETIC AGENTS
An ideal intravenous anaesthetic agent should provide smooth, pleasant and rapid induction. It should produce its action in one arm-brain circulation time and, in addition, rapid recovery with little hangover effect. Its physical properties should include stability in solution and water-solubility. The drug should have negligible effect on cardiovascular system and respiratory system. It should be nonirritant even if injected extravascularly and should not produce untoward side-effects like nausea, vomiting, emergence delirium, hallucinations, tremor, hypertonicity of muscles, allergic reactions, coughting, laryngospasm and so on.
Various agents have been used intravenously to produce a safe anaesthetic state but no one matches the characterstics of an ideal drug.
Thiopentone depresses the cardiovascular system, causing reduction of myocardial contractility. Hypotension may occur due to vasodilatation following a fall in peripheral resistance. In normal subjects this is of little importance as the blood pressure soon returns to normal level. But in patients with heart diseases like myocardial ischaemia, gross valvular diseases, constrictive pericarditis, complete heart block, and so on, it may cause severe hypotension and even cardiac arrest. Care should also be taken in cases with severe toxaemia, hyperkalaemia and metabolic acidosis.
PREVENTION OF CARDIAC ARREST:
1. Proper preanaesthetic assessment, proper determination of operative risk, skillful choice of safe anaesthetic agents and techniques.
2. Apparatus, equipment and cylinders should be checked beforehand.
3. proper and adequate premedication; atropinization is essential to inhibit unwanted vagal reflex activities; during decurarizationwith neostigmine adequate preatropinization is present.
4. Continuous monitoring of vital signs like pulse, respiration, blood pressure and body temperature is essential, eternal vigilance is the price of safety.
TREATMENT OF CARDIAC ARREST
The brain tolerates 3 ½ minutes of anoxia before succumbing to permanent damage, thus early diagnosis and vigorous treatment are mandatory. No time should be wasted. But in hyperthermic, toxic and hypoxic patients permanent neurological damage may occur from cardiac arrest even in a much shorter period. The commonest cause of death following cardiac arrest is undue delay in starting resuscitation, so when circulatory arrest has occurred, cardiopulmonary resuscitation should be commenced instantly.
The aim of such resuscitation is to restore oxygen supply to tbe body tissues, particularly in the brain as early as possible. Until the spontaneous circulation is regained, circulation must be maintained by external cadiac massage and oxygenation by artificial ventilation.
NECESSARY STEPS
1. Inform surgeon and other associates if the cardiac arrest occurs in the operation theatre. The time of commencing resuscitation must be noted for medicolegal and prognostic purposes.
2. Lower head end of the patient but supine position with legs slightly elevated is preferred.
3. Airway should be cleared; artificial ventilation with 100% oxygen preferably through endotracheal tube should be started”.
(Emphasis supplied)
19. Absolutely nothing has been brought on record showing the observance of the standard protocol summarized above. At this stage, it is important to look to the notes prepared by opposite party-doctor in the operation theatre on 15.09.98 which are to the following effect:
“Dated : 15.09.98 at 8 A.M.
H/o Ac. Attack One and half month ago on conservative treatment U.S.G. Ch. Cholco with Lithiasis for Lap/Choleo/Cholecystectomy
Signature
Dr. Anoop Kumar
0.7 Notes 9 A.M.
For Laproscopic Chol. : G.A.
Insuffolation Done Telescope inserted. Epigastric-Port made
Good Addhesions present in the G.B.area
Laproscopic Abondoned
Open Chole Cystectomy Done
No procedural Complications G.B. contains Calculi small contracted.
Signature
Dr. Anoop Kumar
9.30 Pt. Consious Stable condition
9.00 A.M D.N.S 4 Bottles full
Treatment Chart Oral Drugs Sushil Kumari Nil
Injections
Inj. Getamycin I/V B.D. 9’-9
Inj. Cifran I/V B.D. 9’-9
Inj Panocef I gm I/V
Start 9’
Inj. Histac I/V B.D. 9’ -9
Inj. FC I/V 9’
1.30 / AM
Advance 1000
One Thousand Rs. Only
Dated 15.09.98”
20. A bare perusal of the above notes of surgical procedure which are claimed to have been recorded contemporaneously would show that the entire notes are in the handwriting of Dr. Anoop Kumar and are initialed by him alone. These notes do not contain either the name of Dr. Mool Chand Jain or any other anaesthesiologist who was responsible for administering general anaesthesia to the patient. Likewise, it does not contain the name of any medical specialist who is claimed to have been present before or during the surgical procedure so as to ascertain and record the condition of the patient in respect of her fitness for general anaesthesia and thereafter, the scheduled surgical procedure. The anesthetic agent and its quantity used to induce the patient to general anaesthesiaare not at all mentioned. Even the basic parameters of health like, i.e., B.P., pulse rate, etc. before administering general anaesthesia, post anesthetic agent and during the course of surgical procedure are conspicuous by their absence in the surgical notes. Under the relevant directions of the Medical Council of India and as a matter of standard medical protocol, all such parameters are usually recorded in tabulated / graphical form which are termed as “notes of anaesthesia” which as per the opposite party –surgeon have not been kept in this case. Keeping no record / note of these important aspects, even if for the sake of argument it is assumed that ananaesthesiologist was present and had inducted the patient to general anaesthesia, is a glaring omission on the part of the operating surgeon. These omissions assume much greater importance and consequence because the patient landed in severe and fatal cardiac complications shortly after the procedure even if we believe the plea of the opposite party – doctor.
21. The next contention of the learned counsel for the appellant is that the patient must have suffered cardiac complication either during the course of surgery or soon thereafter, her condition was never stable after the procedure and she was not shifted out of the operation theatre to a room at about 9.30 A.M. as claimed by the opposite party – doctor. In the operation notes ( supra), there is a mention that patient was conscious and in stable condition at 9.30 A.M. and below that it is mentioned that at 9.00 A.M. D.N.S. 4 bottles full and oral drug to be given. But neither in these surgical notes nor other record, i.e., Bed Head Ticket / Fluid / Treatment Chart is there any mention that the patient was in fact shifted to recovery room (or room) either at 9.30 A.M. or any time thereafter. In the operation notes, there is, however, an entry of 1.30 AM in regard to receipt of sum of Rs.1000/- as advance on 15.09.98. The next entry starts from 2 P.M. in regard to the patient being conscious and her condition being stable. The other notes in regard to the treatment given to the patient are from 2.45 P.M. to 7.00 P.M. when the patient was treated and declared dead and read as under:
“Pt. Complaint of Palpitation and pain some suboternal region and difficulty in breathing.
Pulse 120, Respiration 20 mint., B.P. 100/80, chest Crepte Occasional.
Drain Draw 25CC.
Advice:- E.C.G. Medical Consultation Injection Trauma
3.15 PM
ECG Done Case seen by Dr. Puneet Uppal ( No Signatures)
Pulse 130 Mt. B.P. 90/60, ECG shows A/C Coronary Insufficiency
Signature of Dr. Anoop Kumar
Tab. Sorbitrate 5 mg., I.V. Dopamine 1 Amp with NS.
8-10 drops / mt. Oxizen inhalation continue cardiac monitoring
B.P. / 5 mt. Oxizen started
Sd/ Dr. Anoop Kumar
3.30 P.M. B.P. 80/30, Pulse 135/mt. P.Q. 86, Started Injection Dubutamine 2 Amp in Drip 20 mint. Drops as advise by Dr. Uppalsame advise continued.
Sd/ Dr. Anoop Kumar
4.00 P.M. BP 70/40 Pulse 140, oxizen 85, Injection Decadrone 2 MLIV, Mephentine 1 C.C. I.V. Injection Effcorline 400 mg I.V.
Sd/ Dr. Anoop Kumar
4.45 P.M. Dyanea, Patient Chest continuously, B.P.70/80, Pulse 145 02 80, Dopamine in Dexteoline I.V. continue 02 continue, Injection Mephentine 1 C.C. I.V.
Sd/ Dr. Anoop Kumar
5.30 P.M. Breathlessness Palpitation continue constant heart monitoring, Paller shows and ventricular tachycecardia, 120 P.mt I.V. xylo card 50 mg. I.V. start Rest same.
Sd/ Dr. Anoop Kumar
5.35 P.M. as advise by Dr. Uppal, terminated, xylocard Drip 1 vital with N.S. 8 drops P.Mt. B.P. 60/40 Pulse/Hr 130 occasionalveat extopic seen.
Sd/ Dr. Anoop Kumar
6.00 P.M. BP 60/40 ventricular ectopic and cuplete continuely dysnea pain, injection Katanov I.M. start Rest same.
Sd/ Dr. Anoop Kumar
6.15 PM Pt. again had ventricular tach cardia, U.T. zylo card Bolus 100 mg. I.V. given Anoop Kumar
6.20 P.M. Ventricular tachycardia, termination I.V. Cardurone 150 mg. slow I/V Decadron heart monitoring given.
6.30 P.M. D.C. shows 240 jewels
6.35 P.M. Ventri tachycardia converted
6.40 P.M. ventricular tachycardia converted to ventricular fibrillation D.C. showk 360 given Xylocard I.V. slowly 50 mg. No response.
6.45 P.M. Pt. incuvated cardiac massage injection adernilin, Niktha mide atioplene.
7.00 P.M. Respiration circulation failure. Pt. declared dead.
Sd/ Dr. Anoop Kumar”
22. Even if we take the above notes at their face value, it is manifest that they do not contain any description of the treatment given by the respondent / para medical staff to the patient between 9.30 A.M. to 2.45 P.M. Since the bed-head ticket does not show either the room or bed number to which the patient is claimed to have been shifted, the stand of the complainant that patient was in fact not shifted from operation theatre to a room and she breathed her last in the operation theatre itself gains more credibility.
23. The next contention put forth from the complainant’s side is that no medical specialist much less a cardiologist was summoned to manage the cardiac complications which the patient is stated to have developed at about 2.45 P.M. According to the opposite party when the patient showed symptoms of cardiac arrest, Dr. Puneet Uppal who is a medical specialist was summoned to examine the patient. He advised ECG which was immediately done and which in turn disclosed acute Coronary insufficiency and, therefore, the treatment as per the advice of Dr. Puneet Uppal was given. It is admitted that despite having detected complication of coronary insufficiency, no cardiologist was summoned and consulted to manage the problem faced by the deceased patient. The hospital of the respondent is situated in a city like Hoshiarpur which must be having a number of cardiologists even if none was attached to the hospital of the opposite party. In view of the severe complication of cardiac arrest, it was imperative on the part of the opposite party – doctor to have summoned and consulted a cardiologist so as to take better care and management of the said complication. Had a cardiologist been consulted and monitored and managed the complication, perhaps the life of the patient could have been saved. Therefore, not consulting a cardiologist to manage the critical state of health of the patient, once she suffered a cardiac arrest, is a serious omission on the part of the opposite party – doctor which will amount to deficiency in service.
24. Even if we assume that Dr. Puneet Uppal was competent to monitor and manage the critical health of the patient, in the absence of any record of treatment / management in the handwriting of Dr. Puneet Uppal, it is difficult to believe that said doctor had in fact treated the patient at the crucial hour.
25. What amounts to medical negligence on the part of a medical professional has been considered by the Hon’ble Supreme Court and Foreign Courts in number of its decisions. In this connection reference may be made to the celebrated and oftenly cited Queen’s Bench Division in Bolam V Frirn Hospital Management Committee Hospital Management Committee (1957) 1 WLR 582, (Queen’s Bench Division), Spring Meadows Hospital & Another V. Harjol Ahluwalia & Anr. (1998) 4 SCC 39 / Indian Medical AssociationVs. V.P. Shantha & Ors. (1995) 6 SCC 651, Dr. Laxman Balkrishna Joshi V. Dr. Trimbak Bapu Godbole and Another, AIR 1969 SC 128 / Savita Garg (Smt.) Vs. Director, National Heart Institute (2004) 8 SCC 56 / Malay Kumar Ganguly Vs. SukumarMukherjee Doctors & Ors. 2009 CPJ 17 (SC) / Martin F D’Souza Vs. Ishfaq – I (2009) CPJ 32 (SC)
26. We do not wish to burden this opinion by referring to all those decisions in detail. Certainly we would like to take into account the legal position which emerges from the said decisions. The Hon’ble Supreme Court on consideration of the above referred Foreign and Indian decisions in the case of Kusum Sharma & Others Vs. Batra Hospital (2010 CPJ) culled out the following principles:
“Negligence is the breach of a 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.
ii. 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.
iii. 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.
iv. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
v. 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.
vi. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a 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.
vii. 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.
viii. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
ix. 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.
x. 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.
xi. 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”.
27. Bearing in mind the above principles and applying the same to the facts and circumstances of the present case, the ultimate question for consideration is as to whether respondent- Doctor can be held guilty of medical negligence? Having considered the matter from different angles, there is no escape from the conclusion that respondent doctor has committed various acts of omission in the treatment of deceased Sushil Kumari at different stages, i.e., at pre, per and post-operation which clearly amount to deficiency in service on the part of the medical professional. Respondent doctor in the present case has exhibited a conduct which was unethical and not expected of a medical practitioner who has undertaken the task of performing a major surgery on a patient. The maintenance of medical record of treatment was far from satisfactory and in utter disregard of the prevalent practice and procedure and settled protocol in that behalf.
28. Learned counsel for the appellant has also invited our attention to a decision rendered by District Consumer Disputes RedressalForum, Ropar dated 13.10.203 passed in Complaint No. 167 of 2003 titled as Nasib Kumar Vs. Modern Hospital, Fatehgarh, Dr.Anoop Kumar, Dr. Mool Chand Jain and United India Insurance Company, by which order the said District Forum had held opposite parties including Dr. Anoop Kumar guilty of medical negligence and deficiency in service. The said District Forum had askedDr.Anoop Kumar to pay compensation of Rs.2,00,000/- subject to the indemnity clause under the insurance. In our view, we cannot take the said decision into account because the said decision was rendered on its own facts and circumstances and evidence and material led in that case. In any case, this Commission has reached its own finding based on the facts and circumstances of the present case and evidence and material produced by the parties.
29. This takes us to the ultimate question of award of compensation. As noted above, complainant in his amended complaint filed before the State Commission had claimed a total compensation of Rs.15,82,729/-, viz., a sum of Rs.5,82,729/- towards the loss suffered by the complainant on account of the loss of salary which his wife would have earned during her remaining service carrier i.e., uptil the year 2002, i.e., for a period of about four years when she would have attained the age of 60 years. The complainant has filed a certificate of the pay of Smt. Sushil Kumari which she would have drawn between 15.09.1998 to November, 2002, the expected date of superannuation. As per this certificate Smt. Sushil Kumari, had she not died prematurely on 15.09.1998 and had she continued in service uptil November, 2002, would have earned a gross salary of Rs.6,29,989/-. Taking this certificate on its face value and deducting about 1/3rd towards the personal expenses of deceased for her own maintenance and upkeep, the loss to the complainant on account of deprivation of the salary of income of the deceased cannot be said to be more than Rs.4,20,000/-.
30. That apart complainant has claimed a sum of Rs.10,00,000/- towards mental agony and loss of companionship etc. In our view, the amount claimed is excessive. Having regard to the age of deceased at the relevant time and all other relevant factors. In our view, it would adequately meet the ends of justice, if a compensation of Rs.1,00,000/- is awarded to the complainant under this head. Thus the total compensation payable comes to Rs.5,20,000/-.
31. In the result, the appeal succeeds and is allowed and the findings and order of the State Commission are hereby set aside. Complaint is partly allowed and respondent-doctor is hereby directed to pay a total compensation of Rs.5,20,000/-( Rupees five lakh twenty thousand only) to the complainant besides cost of Rs.50,000/- (Rupees fifty thousand only) throughout. The amount shall be paid within a period of four weeks from the date of receipt of the order, failing which awarded amount shall carry interest @ 12% p.a. from that date till the date of payment.
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( R. C. JAIN, J )
PRESIDING MEMBER
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(ANUPAM DASGUPTA)
MEMBER
Am/
