2010(1) CPR 269 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
R.C. Jain, Presiding Member and Anupam Dasgupta, Member
M.C. Katare —Complainant
versus
Bombay Hospital and Medical
& Ors. —Opp. Parties
Original Petition No. 167 of 1995
Decided on 18.12.2009

IMPORTANT POINT
The provisions of the Consumer Protection Act which is a self contained Code governing the filing of complaints and the procedure to deal with them, do not envisage strict application of legal proposition regarding the pleadings and the proofs by the adjudicating Consumer Fora set up under that Act. This would be more so in the cases of medical negligence/deficiency in the treatment of patients.

Headnote:Consumer Protection Act, 1986—Sections 2 and 14—Medical negligence—Surgery for removal of fibular implant and right ankle arthrodesis—Death of patient during the course of operation as she developed life threatening complication of Pulmonary Embolism—Complaint filed by husband of deceased alleging negligence on part of surgeon, anesthesiologist and the hospital—Deceased aged about 30 years having swelling in her right ankle was to be operated upon—No tests prescribed by Surgeon to confirm or rule out possibility of the patient being a case of Deep Venous Thrombosis (DVT)—Whether it could be said that the Surgeon committed any negligence in not entertaining suspicion about the deceased suffering from DVT—(Yes)—Whether Anesthesiologist committed any negligence by inducing general anesthesia to the deceased in the present case—(No)—Award of compensation of Rs. 3,00,000

       Held: It is important to recall that the Surgeon here is not one possessing merely ordinary medical skills. As a bare perusal of his written version would show, he claims that he is a renowned orthopedic Surgeon of India, having the level of skills and the range of experience and expertise at his, command, which are not those of an ordinary practitioner of orthopedics. As per his own showing, he had vast experience of performing the most complex orthopedic surgeries in India and abroad. He further claimed in his written version, “I say that I have brought to the task a high degree of professional skill and knowledge as prevalent and known at the relevant time. “(Emphasis supplied). For a medical man of such vast experience, high expertise and professional skills, better application of his self-proclaimed expertise and skills and resultant demonstration thereof were expected, which he has failed to do in the present case. If, as such an experienced Surgeon, he had exercised due care and diligence and carefully considered the history and clinical symptoms with which the patient was presented to him, it should not have been difficult to at once visualize the possibility of the patient being at least a likely, if not a high-risk, case of DVT. This is what would be expected of even an orthopedic surgeon of ordinary skills and experience, who was familiar with the current development of knowledge in his field, according to the authoritative texts cited above. It is strange, therefore, for such an eminent Surgeon that before undertaking the surgery (an elective surgery and not an emergent surgery), he did not consider the patient as at least a likely case of DVT and, therefore, of the desirability of advising certain test(s) prescribed in that behalf to confirm or rule out the possibility of the patient being a case of DVT. This failure of the Surgeon, not of ordinary but such a high level of experience, expertise and skills, clearly amounts, in our view, to serious negligence in making the correct diagnosis because it is the case of the Surgeon and the Anesthesiologist that the patient suffered Pulmonary Embolism (PE) on being inducted with general anesthesia on account of her pre-existing state of DVT, the PE ultimately leading to her death. Patients approach renowned and highly qualified, skilled and experienced medical professionals at comparatively much higher expenses with the trust that they are in the best hands and with the hope of getting correct and proper diagnosis and treatment of their medical problems. Saroj Katare and her husband, the complainant must have also approached the Surgeon at the Hospital with such trust and hope but these were belied in the present case. (Para 16)

       Therefore, on the basis of the evidence and material brought on record, including the above-referred medical records noted by the Anesthesiologist and the Surgical Team as well as the ICU records of the patient’s treatment on 30.12.1994, we must hold as under:

        (a) The Surgeon failed to diagnose, on the basis of his clinical examination of the patient on 28.12.1994, that she was, at least, a moderately likely, if not a high risk, case of DVT and hence prescribe appropriate tests to confirm or rule out DVT before undertaking the planned surgery.

        (b) From the record of “tourniquet time” and the time of the onset of the cardiac complication, the Surgeon appeared to have continued the surgery even after the patient went into cardiac stress at 4.05 p.m. on 29.12.1994.

        (c) The surgeon and the Anesthesiologist, primarily the former, failed to record the diagnosis of DVT followed by PE leading to the patient’s cardiac arrest on 29.12.1994, despite their assertions in this regard in their written versions.

        (d) The surgeon failed to prescribe, in the follow-up instructions to the ward/ICU staff after the surgery on 29.12.1994, the appropriate medication for DVT/PE and also to specify, during his visit to see the patient in the ICU the next morning, his diagnosis of the patient’s ailment; instead he blandly advised referral to “Dr. D. S. S.” and “Dr. P. L. Tiwari”.

        (e) The surgeon also failed, in view of (c) and (d) above, to alert the ICU doctor in charge and the staff to the full dimensions of the complications that the patient had suffered during the surgery and thus hindered appropriate care of the patient in the ICU.

        (f) The surgeon failed to maintain, or cause to be maintained, “Full record of the diagnosis, treatment, etc., “as mandated by the Apex Court.

        (g) The Anesthesiologist failed to record in his notes of 29.12.1994 the cause of the cardiac arrest of the patient though he claimed in his written version that it was due to the patient’s pre-existing DVT and consequent episode of PE. He also sought to claim, contrary to his own written version, that no medication for the DVT/PE was prescribed in the post-surgery follow-up instructions because the patient’s PE was confirmed only after she had been transferred to the ICU and examined by Dr. D. S. Saksena.

        (h) The hospital, representing the collective of all doctors and staff in-charge of the ICU as well as the expert doctors who visited and examined the patients on reference, failed in providing a bed for the patient in the ICU for well nigh 6 hours after her highly problematic surgery in the afternoon of 29.12.1994 and, thereafter, in not being able to marshal the medical resources capable of diagnosing the patient’s ailment and administering the correct course of treatment while she was in the ICU. (Para 26)

       Having held the opposite parties guilty of medical negligence as above, the next question which arises for our consideration is about the quantification of the compensation which should be reasonably awarded to the complainant in the present case. As discussed earlier, we have not found the opposite parties guilty of any overt act directly resulting in the death of Smt. Saroj Katare. They have been held guilty of certain omissions which, in our view, no physician of reasonably average skills and knowledge (and no hospital with reasonable medical facilities and trained human resources) would have failed to do. These aspects have to be borne in mind while quantifying the compensation. (Para 27

       At the time of her death, Smt. Saroj Katare was aged about 30 years. Besides the complainant, she has left two minor sons. The complainant has claimed compensation of Rs.25,00,000 for pecuniary loss suffered by him, computing the same @ Rs.2,500 per month and expecting her normal life around 70 years, besides claiming the non-pecuniary damages. Taking into account all the relevant circumstances and the nature and extent of negligence/deficiency in service that we have found in the case in hand, we are of the opinion that ends of justice would be adequately met if we direct the opposite party No.2, Dr. H. R. Jhunjhunwala to pay a lump sum compensation of Rs.3,00,000 (Rupees three lakh only) and opposite parties No.1 and 3 to pay compensation of Rs.1,00,000 (Rupees one lakh only) each to the complainant. (Para 29)

       Result: Complaint partly allowed.