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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dinesh Singh, Member
Post Graduate Institute of Medical Education & Research and Anr. —Appellants
versus
Shri Devendra Kumar Sharma
and Ors. —Respondents
First Appeal No.146 of 2011
(Against the Order dated 23/02/2011 in Complaint No.58/2000 of the State Commission Chandigarh)
Decided on 16.10.2020
Counsel for the Parties:
For the Appellants:Mr. Rajesh Garg, Senior Advocate, Mr. Vipin Mittal, Advocate
For the Respondents: Mr. Devendra Kumar Sharma, Complainant No.1 in-person
IMPORTANT POINT
Due to failure of first surgery, patient underwent second surgery. Therefore compensation of Rs. 15 lakh allowed for medical negligence.
Headnote:
Consumer Protection Act, 1986—Sections 2(1)(g) and 19 : [Consumer Protection Act, 2019—Sections 2(11) and 41]—Medical Negligence—Claim for—Scope—Patient was diagnosed with “right internal carotico ophthalonic aneurgusm”—She was admitted in hospital on 3.9.1999 and was operated on 27.9.1999 for-clipping of aneurysm—Brain surgery was started under anesthesice, but was abandoned due to unavailability of drill, without clipping of aneurysm—She was again operated on 7.10.1999—And she expired on next day i.e. 8.10.1999—State commission determined negligence on part of hospital and the doctor—Challenge against—Them was sufficient time to carefully prepare for the surgery—It was not a care as if the surgery was undertaken most immediately at admission—Hospital and director neither had a functional drill machine—Surgical note clearly estates that due to unavailability of drill, procedure abandoned and closure done without clopping of aneurysm—Due to failure of the first surgery, patient was unnecessarily required to undergo an additional second surgery—Negligence found writ large—Hospital and doctor shall jointly and severally, pay Rs. 15 lakh with interest @ 8% p.a.—And cost of litigation of Rs. 2.50 lakh, to complainants. (Paras 7 to 14)
Result: Appeal disposed of.
ORDER
Dinesh Singh, Member.—This Appeal has been filed under Section 19 of The Consumer Protection Act, 1986, hereinafter referred to as the ‘Act’, challenging the Order dated 23.02.2011 in C. C. No. 58 of 2000 passed by The State Consumer Disputes Redressal Commission, U.T. of Chandigarh, hereinafter referred to as the ‘State Commission’.
The Appellants herein, Post Graduate Institute of Medical Education & Research, Chandigarh and Dr. V.K. Khosla, Professor & Head of Neuro Surgery Department, were the Opposite Parties No. 1 and No. 2 before the State Commission, and are hereinafter being referred to as the ‘Hospital’ and the ‘Doctor’ respectively.
The Respondents No. 1 to No. 3 herein, Mr. Devendra Kumar Sharma, Mr. Anand Sharma and Ms. Aekta Sharma, were the Complainants before the State Commission, and are hereinafter being referred to as the ‘Complainants’.
Deceased Smt. Indrawati Sharma, wife of Mr. Devendra Kumar Sharma and mother of Mr. Anand Sharma and Ms. Aekta Sharma, expired in the Hospital after surgery by the Doctor, and is hereinafter being referred to as the ‘Patient’.
2. We heard arguments of both sides and perused the material on record including inter alia the impugned Order dated 23.02.2011 of the State Commission and the Memorandum of Appeal.
3. Brief facts, shorn of unnecessary rhetoric, are that the Patient was diagnosed with “right internal carotico ophthalmic aneurysm”. She was referred to the Hospital. She was admitted on 03.09.1999. She was first operated on 27.09.1999 for “clipping of aneurysm”. The brain surgery was started under anesthesia; it was abandoned “due to unavailability of drill”, without “clipping of aneurysm”. She was again operated on 07.10.1999. She expired the next day i.e. on 08.10.1999.
The Complainants filed a Complaint before the State Commission on 21.09.2000, alleging negligence / deficiency.
The State Commission vide its Order of 23.02.2011 allowed the Complaint and determined negligence / deficiency on the part of the Hospital and the Doctor.
4. We note that the State Commission has weighed the evidence and passed a reasoned Order.
For ready appreciation, extracts from the State Commission’s appraisal are reproduced below:
10. The contention of learned counsel for complainants is that Smt. Indrawati Sharma was only 47 years old, she was admitted in the PGI for treatment when an emergent operation was to be performed, she was taken for operation on 26.9.1999 but the operation was left midway due to non-availability of drill machine. The learned counsel for complainants referred to Annexure P-3 the operation note. It is not disputed that the operation was to be conducted by Dr. V.K. Khosla- OP No.2. It is also admitted that the drill machine did not work properly. There is no dispute about it that the operation was not completed and the skull was closed without clipping the Aneurysm. This necessitated second operation which was conducted on 06.10.1999. The learned counsel argued that it was a deficiency in service on the part of the OPs due to which two operations had to be conducted which resulted in the death of Smt. Indrawati Sharma. Learned counsel for OPs has opposed these contentions. He referred to the reply and the affidavit of Dr. V.K. Khosla in which it was specifically stated that the drill was not needed for completing the operation. According to him, there was no deficiency in service or negligence on their part. A perusal of the affidavit of Dr. V.K. Khosla shows that he is changing his stand. According to him, the drill was not necessary and operations in the past had been performed even without a drill machine. In para-4 of the affidavit, he admitted that the drill machine was available but did not function satisfactorily. Even the reason for not proceeding further with the operation as mentioned in the operation note Annexure P-3 is that ‘due to non-availability of drill, procedure abandoned and closure done without clipping of Aneurysm.’ There is no other r
