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--------------- Print Magazine --------------
  May 2016
  April 2016
CASE STUDY - by Anoop K. Kaushal

Burden of Proof in High Risk cases

CHL Apollo Hospital Indore v. Ashish Sanyal

Revision Petition No. 215 of 2008 decided by the National Consumer Disputes Redressal Commission, New Delhi on 15-5-2012

Facts: The Respondent had approached the Petitioners for consultation and treatment in respect of his wife, Reena Sanyal who was experiencing respiratory problems as also some problems in her chest and difficulty in walking, who after investigations and tests advised surgery to rectify a defective cardiac valve. Although, Respondent preferred to get this surgery done at Apollo Hospital, Chennai, he was persuaded that the surgery would be done with the same technique and procedure in the Petitioner-Hospital. Respondent, therefore, got his wife admitted on 19-8-2003, the surgery was performed on 22-8-2003 at 8.30 am and Respondent was told that his wife would be discharged on the fourth day. On the night of 22-8-2003 her condition deteriorated and Respondent was asked to arrange blood which was given to her the next day, there was no improvement and she passed away on 26-8-2003 at 4.35 am and the cause of death was stated as cardio-respiratory arrest. Respondent alleged that death had occurred because Petitioners were negligent in the treatment of his wife and the two doctors also absented themselves when the condition of his wife was very serious. After obtaining the necessary medical papers with some difficulty, Respondent found that as per his wife’s Blood Report dated 26-8-2003 her haemoglobin count was only 3.1 gm. and the surgery was conducted even though it is contra-indicated in a patient with such a low haemoglobin count. Respondent, therefore, filed a complaint on grounds of medical negligence and deficiency in service on the part of the Petitioners in causing the death of his wife aged 37 years who has 3 minor children, claimed compensation of ` 15 lakhs and reimbursement of medical expenses of ` 1,50,000.

Defence by Doctors: It was contended by the Petitioners that all necessary precautions were taken prior to the surgery, e.g. the patient was subjected to detailed pathological and diagnostic tests on 18-8-2003 which confirmed that her haemoglobin count was 11.2 gm. and all other parameters were also satisfactory for conducting such a surgery under local anaesthesia. There was no reason to repeat the same procedure since there cannot be a drastic drop in the haemoglobin count within a period of 3-4 days unless there is heavy bleeding etc.

However, when the condition of the patient deteriorated post-surgery, her haemoglobin test was done late at night on 22-8-2003 which showed that it was 3.1 gm. and necessary blood transfusion was arranged. In fact, Respondent had come to the Petitioner-Hospital for consultations in November, 2002 and although patient was advised for an immediate procedure, Respondent came back only after 9 months by which time the patient had become a high risk case. The surgical procedure was successful as is clear from the ECHO, but the patient continued to have persistent pulmonary hypertension which led to right side heart failure and cardiogenic shock etc. There was no negligence on the part of Petitioners and death occurred in a high risk case despite the best possible medical care that was given to her.

Orders by Fora: The District Forum allowed the complaint and directed the Petitioners to jointly and severally pay the Respondent ` 2 lakhs with interest @ 6% from the date of order and ` 1,000 as litigation cost. The State Commission enhanced the consolidated amount of compensation inclusive of expenses to ` 4 lakhs to be paid by the Petitioners jointly and severally to Respondent within one month failing which it would carry a simple rate of interest of 6% per annum on the grounds that:

(i) Since the patient was a high risk case careful precautionary measures and utmost prudence including Srepetition of some important pathological tests like haemoglobin count on the date of the surgery i.e. on 22-8-2003 were necessary especially since this test is simple and not expensive. This was, however, not done.

(ii) The pathological report of 22-8-2003 mentioning the results of various investigations done on that date is not signed by any nurse or technician which indicates a casual attitude on the part of the Petitioner-Hospital/its staff.

(iii) No records or reasons were shown by the Petitioners as to why doctors conducted a post-operative haemoglobin test followed by blood transfusion. In the absence of any explanation, it would be reasonable to assume that the haemoglobin test was done prior to the surgical procedure on 22-8-2003 and without waiting for this report which would have indicated the low haemoglobin count, the surgery which proved to be fatal was undertaken.

(iv) Instead of being made to fast prior to the surgery as per standard procedure, patient was given tea and biscuits which is not advisable even in cases where local anaesthesia is administered. This resulted in post-operative vomiting.

Held: In view of the fact that Counsel for Petitioners was unable either to explain the reasons for the drastic drop in the haemoglobin count and the records produced by the Petitioner also do not shed any light on this issue, we are inclined to agree with the findings of the Fora below which are courts of fact that the Petitioners-Doctors were deficient and negligent in the treatment of this patient. While it is well acknowledged that even with the best of professional care and management by doctors, mishaps including death can occur but in the instant case, we are left with many unanswered questions regarding proper care and treatment of this high risk patient including in respect of her haemoglobin status which was critical in this case. The revision petition is dismissed. The Petitioners are directed to jointly and severally pay the Respondent, ` 4 lakhs with interest @ 6% from the date of order passed by the District Forum and ` 1,000 as litigation cost within 6 weeks from the date of receipt of this order failing which simple interest @ 9% will be applicable on the entire amount from the date of default.

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