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ASSAM STATE CONSUMER DISPUTES REDRESSAL COMMISSION, GUWAHATI
A. POTSANGBAM, M.K. BAROOAH, JJ.
Satyanarayan Agarwala and Others – Appellants
Versus
Dr. Alaka Goswami and Others – Respondents
Complaint Petition No. 4 of 2004
Decided On : 10-10-2013
Advocate Appeared:
For the Appellants : Mr. O.P. Kejriwal, Mr. M. Talukdar.
For the Respondents: Mr. A.K. Bhattacharjee, Mr. A.K. Choudhury.
An informed consent is a consent that is given by a person after receiving adequate information about the nature of the treatment procedure, the expected outcome and the likelihood of success, the risks, the alternatives to the procedure, and the effect of no treatment or procedure.
Headnote:
CONSUMER PROTECTION ACT, 1986 - MEDICAL NEGLIGENCE - DEFICIENCY OF SERVICE - CONSENT - INFORMED CONSENT - UNNECESSARY SURGERY - REMOVAL OF HEALTHY ORGANS - BURDEN OF PROOF - RES IPSA LOQUITUR - COMPENSATION.
Fact of the Case:
Maya Agarwala, a 42-year-old woman, consulted Dr. Alaka Goswami, a renowned gynecologist, for heavy menstruation. Dr. Goswami diagnosed fibromyoma uterus with menorrhagia and advised laparotomy. After obtaining consent, Maya was admitted to East End Nursing Home and Research Centre for the surgery. However, during the surgery, Maya's uterus, fallopian tubes, ovaries, and cervix were removed, resulting in her death. The complainants, Maya's husband and children, filed a complaint with the Consumer Commission, alleging medical negligence, deficiency of service, and gross misconduct.
Finding of the Court:
The Consumer Commission found that the consent obtained from Maya was not an informed consent as it did not specify the removal of healthy organs. The Commission also held that the removal of Maya's ovaries was unauthorized and amounted to an invasion of her body. The Commission further found that Dr. Bonojit Choudhury, the consultant cardiologist, was not a qualified cardiologist and that his advice for hysterectomy was negligent. The Commission also held that the failure to produce the monitoring note by the anesthetist was a deficiency of service. The Commission concluded that the sudden and unexpected death of Maya on the operating table without the knowledge of the complainants warranted an autopsy to ascertain the cause of death, and the failure to conduct an autopsy was a deficiency of service. The Commission also found that the hospital was ill-equipped for such a major operation and that the opposite parties were jointly and severally liable for gross medical negligence amounting to deficiency of service.
Issues: 1. Whether the consent obtained from Maya was an informed consent. 2. Whether the removal of Maya's ovaries was unauthorized and amounted to an invasion of her body. 3. Whether Dr. Bonojit Choudhury was a qualified cardiologist and whether his advice for hysterectomy was negligent. 4. Whether the failure to produce the monitoring note by the anesthetist was a deficiency of service. 5. Whether the sudden and unexpected death of Maya on the operating table without the knowledge of the complainants warranted an autopsy to ascertain the cause of death, and whether the failure to conduct an autopsy was a deficiency of service. 6. Whether the hospital was ill-equipped for such a major operation and whether the opposite parties were jointly and severally liable for gross medical negligence amounting to deficiency of service.
Ratio Decidendi: 1. An informed consent is a consent that is given by a person after receiving adequate information about the nature of the treatment procedure, the expected outcome and the likelihood of success, the risks, the alternatives to the procedure, and the effect of no treatment or procedure. The consent obtained from Maya was not an informed consent as it did not specify the removal of healthy organs. 2. The removal of Maya's ovaries was unauthorized and amounted to an invasion of her body. There was no evidence that Maya's ovaries were suffering from any lesion or that their removal was necessary to prevent future ovarian malignancy. 3. Dr. Bonojit Choudhury was not a qualified cardiologist and his advice for hysterectomy was negligent. Dr. Choudhury had not acquired any formal degree or diploma in cardiology, yet he professed himself as a cardiologist and treated patients with cardiac problems. 4. The failure to produce the monitoring note by the anesthetist was a deficiency of service. The anesthetist had a duty to maintain a record of the patient's vital signs during surgery, and his failure to produce this record prevented the Commission from assessing whether the patient had received proper care. 5. The sudden and unexpected death of Maya on the operating table without the knowledge of the complainants warranted an autopsy to ascertain the cause of death, and the failure to conduct an autopsy was a deficiency of service. In such circumstances, it is the duty and obligation of the hospital and the doctors involved in the operation to cause a post-mortem or autopsy on the dead body to find out the exact cause of death. 6. The hospital was ill-equipped for such a major operation and the opposite parties were jointly and severally liable for gross medical negligence amounting to deficiency of service. The hospital did not have the necessary facilities and equipment for such a major operation, and the opposite parties failed to take adequate steps to ensure that Maya received proper care.
Final Decision: The Consumer Commission allowed the complaint and directed the opposite parties to pay compensation to the complainants. The Commission also directed the opposite parties to pay the costs of the proceeding.
ORDER :
1. Heard Mr. O.P. Kejriwal, learned Counsel, appearing for the Complainant, assisted by Mr. M. Talukdar, Advocate. Also heard Mr. A.K. Bhattacharjee, learned Sr. Counsel, appearing for the opposite parties, assisted by Mr. A.K. Choudhury, Advocate. The case has been heard on a number of days.
2. By an order dated 15.6.2004 passed by the commission, written versions submitted by opposite parties in the form of affidavit were ordered to be treated as evidence-in-chief and also the complaint petition filed by the complainants with the support of an affidavit was also ordered to be treated as evidence-in-chief. After an order passed on 1.10.2004 fixing 3.1.2005 for recording evidence, the case was not put up for about 8 years till the same was listed on 25.5.2012 and on that day, the complainant was directed to take step for service upon the opposite parties informing them about the pendency of the complaint. It may be pertinent to mention that the record of the complaint case which was handed over to the learned Advocate Commissioner for recording evidence of the parties, was returned only on 11.11.2008, therefore, the case could not be listed between 1.10.2004 to 11.11.2008, for want of record. After resignation of the immediate former President on 3.3.2006, the Commission remained without a President till 28.7.2011. This is how some unavoidable delay has occurred in disposing the complaint.
Case of the complainants
3. This complaint filed under Section 17(a)(i) of Consumer Protection Act, 1986, relates to sudden and unexpected death of Mrs. Maya Agarwala on 9.6.2003, on the operating table of the operation theatre, while being operated upon by Dr. Mrs. Alaka Goswami (opposite party No. 1), a renown Gynaecologist of Guwahati, (former Professor and Head of Department of Obstetrics and Gynaecology, Gauhati Medical College) with the assistance of a panel of doctors consisting of opposite party Nos. 3, 4, 5, 6 and 7, at M/s. East End Nursing Home and Research Centre (opposite party No. 2). The complaint also alleged of gross medical negligence, professional misconduct and deficiency of service resulting to the death of late Mrs. Maya Agarwala. The complainant No. 1 being the husband of late Mrs. Maya Agarwala and complainant Nos. 2, 3 and 4 being the daughter and sons of the deceased, filed this complaint as legal heirs and successors claiming compensation for a sum of Rs. 22,87,400 (Rupees twenty two lakh eighty seven thousand and four hundred) from the opposite parties. The opposite party No. 1 i.e. Dr. Mrs. Alaka Goswami, is a senior and renown Gynaecologist and opposite party No. 2 i.e. M/s. East End Nursing Home and Research Centre, Guwahati, is a private Hospital and opposite party Nos. 3, 4, 5, 6 and 7 are doctors who professed to be experts in their respective fields.
4. On 22.5.2003 Mrs. Maya Agarwala, since deceased, then only 42 years, consulted Dr. Mrs. Alaka Goswami, the opposite party No. 1, in her chamber at International Hospital, Guwahati, under registration No. 015698, for complaint of heavy menstruation. Dr. Mrs. Alaka Goswami clinically diagnosed the problem of Mrs. Maya Agarwala as a case of ‘Fibromyoma Uterus with Menorrhagia’. After recording blood pressure of Mrs. Maya Agarwala at 130/80, the opposite party No. 1 prescribed some medicines and advised Mrs. Maya Agarwala for a number of pathological tests, investigations including sonography and ultrasound of whole abdomen. A copy of the registration card of the International Hospital, Guwahati, containing clinical diagnosis, blood pressure, prescription of medicines and advice are proved as Exhibit No. ‘C’ (Colly).
5. On 6.6.2003, Mrs. Maya Agarwala, on her second visit, showed the reports of advised pathological tests to the opposite party No. 1, which are as follows:
(i) Urine: NAD (No abnormality detected)
(ii) Haemoglobin: HP 9.4 gms
(iii) Blood Gluco
