First Appeal No. 56 of 2006 decided on 14 th March, 2012 by the National Consumer Disputes Redressal Commission, New Delhi
Facts: 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 at G.B. Pant Hospital, New Delhi. In July 1998, she suffered severe pain in her abdomen, approached the opposite party-Dr. Anoop Kumar at Modern Hospital, Hoshiarpur for consultation and treatment who advised Cholecystectomy through laparoscopic procedure. On the scheduled date , i.e ., 15.09.1998, she was taken to the operation theatre at about 8.00 am after getting consent of her son-in-law for laparoscopic surgery. The complainant and other family members were shown eight pieces of stones which had been removed during the operation of the gall bladder of the wife of the complainant at 1 pm. At 5 pm 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. Complainant alleged 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. The cause of the death given by the opposite party in the treatment chart "cardiac arrest" was false and fabricated. For irreparable loss of his beloved wife besides mental agony, sorrow and also monetary loss from her salary drawn as a head of government primary school of about ` 12,000/- per month Complainant claimed a sum of ` 10,00,000/- and ` 5,82,739/- respectively.
Defence: The doctor's version was that he gave requisite treatment and advised laparoscopic surgery for the removal of stones which was scheduled for 15.09.1998. 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. Requisite consent was obtained from the son-in-law of the deceased which included the consent for conventional open cholecystectomy procedure. Open surgery was uneventful and concluded at about 9.30 am 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 pm, the patient complained of chest pain, palpitation and breathlessness. 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 pm.
(i) On Pre-Operative Blood Tests Like Hb, BT, CT, Blood Urea, Serum Creatinine, Fasting Blood Sugar, Serum Bilirubin And Other Clinical Tests Like ECG etc. :
Admittedly, the above referred tests were necessary to judge the suitability of the patient to undergo such a surgical procedure. 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. No record of such blood and other tests which are claimed to have been conducted on the patient has been produced. The opposite party pleaded that this was part of the OPD record which remains with the patient / attendant of the patient and not retained by the hospital. Subjected to cross-examination he stated that he had seen the OPD record which was with the patient including the investigation reports and other details and on going through 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. 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. 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.
(ii) On Informed Consent:
According to the opposite party-doctor, in the first instance, laparoscopy was attempted which showed the presence of adhesions in the gall bladder area and, therefore, laparoscopic procedure was abandoned and open cholecystectomy done. 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 laproscopic procedure had to be abandoned.
(iii) On Medical Record:
The entire notes are in the handwriting of Dr. Anoop Kumar and are initialed by him alone, 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. It does not contain the name of any medical specialist who is claimed to have been present before or during the surgical procedure. 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, is a glaring omission on the part of the operating surgeon. 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.
(iv) On Specialist Support:
Despite having detected complication of coronary insufficiency, no cardiologist was summoned and consulted. 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. 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.
Held : The 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. Complaint is partly allowed and respondent-doctor is hereby directed to pay a total compensation of ` 5,20,000/- (Rupees five lakh twenty thousand only) to the complainant besides cost of ` 50,000/- (Rupees fifty thousand only) throughout.