Shoda Devi (S) v. Ddu/Ripon, Hospital And Others (S).

continued to feel acute pain in her entire right forearm. No remedial measures were taken for 1½ hours of D&C procedure. The doctors attended to her after considerable delay and thereafter, referred her to Indira Gandhi Medical College & Hospital, Shimla (IGMCH); where amputation of her right forearm above elbow was performed. The complainant filed an FIR before the Police Station, Sadar Shimla; also filed a complaint before the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short "the State Commission") for alleged medical negligence against the OPs, which led to amputation of her right hand and 100% disability. She also had suffered loss of income at the rate of Rs.5,000/- per month; besides Rs.2,000/- as extra financial burden on keeping a personal attendant. The complainant claimed Rs.37,80,000/- before the State Commission.

2. The OPs resisted the complaint and raised preliminary objection that, the complaint was not maintainable because the complainant was not a consumer, and the OPs had not provided any services for any consideration. The services rendered to the patient were free of charge. Therefore, her case was not covered under Section 2(1)(d) and 2(1)(o) of the Consumer Protection Act, 1986. The OP-2 further submitted that, on 19-07-2006, Fractional curettage (D&C) was conducted under IV sedation in the minor operation theatre (OT). On the same day, about 14 other cases were scheduled for similar procedures in the minor OT. The complainant was taken to the minor OT at around 1:45 P.M.; the OP-3 administered IV Phenergan and Fortwin injections; for sedation and analgesia. The OP-3 was a qualified and experienced staff nurse having more than ten years of experience and competent to administer the injections. The Fractional curettage procedure was completed in minor OT within five minutes and there was no pain to the patient. The patient was fully cooperative and properly sedated. The patient was shifted to Gynec. ward and kept under observation. She had no complaint of any pain in her right arm. At about 2:30 P.M., the attendant of the complainant approached the OP-2 and informed about severe pain in her right forearm since 30 minutes; immediately the OP-2 attended the patient. As, there were no clinical signs or changes in color of the patient's right arm; the pain killer injection Voveran and IV fluids were prescribed. Again at 3:30 P.M., the OP-2 examined the patient, which revealed feeble Radial pulse and her right forearm was pale, thus, it was the beginning of ischemic process in the right hand. The OP-2 immediately called for second opinion from the Department of Medicine and in the meantime, prescribed injection Tramadol. Around 4:00 P.M. it was confirmed that the right hand had suffered ischemia and, therefore, the patient was immediately referred to IGMCH for further management. Consequently, on 27-02-2006 at IGMCH, amputation was performed because of gangrene of right hand. Thus, there was no negligence on the part of the OPs.

3. On the basis of the pleadings, evidence and medical record, the State Commission did not find either medical negligence or deficiency in service on the part of the OPs and dismissed the complaint. However, as per the directions vide Government Order dated 16-09-2008, an ex gratia amount of Rs.2,93,526/- was allowed to be paid to the complainant. Being aggrieved by the impugned order, the complainant filed this appeal for enhancement of the compensation.

4. We have heard the exhaustive arguments from both the parties. The learned counsel for the complainant vehemently argued that, given the facts of the case, the principle of "Res Ipsa Loquitor" is applicable; because the injection was administered wrongly in the Radial artery; therefore, the patient had lost her right hand. The doctors at DDU did not use IV canula; the patient was not sedated properly. The patient was referred to IGMCH in inhumane manner; the OPs did not call any ambulance, although it was heavily raining at that time. According to the

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discharge summary of IGMCH, the diagnosis was "Gangrene right arm-cause acute limb ischemia following some injection given in the right elbow at DDU hospital". The disability certificate stated that patient had suffered 50% disability. The statements made by few doctors of IGMCH before the State Commission, clearly establish that there was negligence during treatment at DDU hospital. The counsel submitted that, the anesthetist would have been in a position to manage the problem. Generally, as a common practice, before conducting any surgical procedure, IV canula should be placed to avoid such problem, and it could also be helpful for giving Brachial Plexus block.

5. The learned counsel for the OPs argued the matter and submitted that there was no negligence on their part. The learned counsel for the OP-2 submitted that the complainant was not a 'consumer', because the services at DDU hospital were free of charge. The State Government of Himachal Pradesh was also a necessary party, but was not impleaded; therefore, the complaint was bad for non-joinder of the necessary parties. The counsel further submitted that the Fractional curettage being a minor procedure, it was conducted in minor OT; under IV sedation. After the procedure, the patient was shifted to recovery room and attended properly. Initially, there were no changes suggestive of ischemia in the patient's right hand except pain in that hand. Therefore, injection Voveran and IV fluids were given, but there was no improvement. The patient was under the supervision of the OP-2, who re-examined the patient at 03:30 P.M. and noted the feebleness of the Radial pulse and also the right arm became pale; thus, it was suggestive of onset of limb ischemia.

6. We have perused the evidence of doctors from IGMCH. The medical record of IGMCH revealed that the primary disease was gangrene of right arm, because of acute limb ischemia, following injection given in right elbow at DDU hospital. The patient was admitted in IGMCH on 19-07-2006 and after three days, amputation was performed on 22-07-2006. Dr. R. J. Negi (CW2) who was Registrar of Cardio Thoracic Vascular Surgery (CTVS) at IGMCH; stated that at the time of admission, there were no finger movements and the hand of patient was closed. The Radial & Ulnar pulses were absent. Therefore, it was diagnosed as acute arterial occlusion with ischemia of limb after intra-arterial injection. He further stated that necessary steps were required to be undertaken immediately at DDU hospital, when the injection had been administered in the artery instead of vein. The patient complained about severe pain in her right forearm at 02:00 P.M. whereas Dr. Sanjay Mahajan at DDU hospital examined the patient at 04:00 P.M. and found that Radial pulse was feeble. The doctor who attended the patient was not in a position to diagnose the problem. Regarding use of canula Dr. Negi submitted that, there is no necessity to affix the canula, when the medicine to be administered or blood to be extracted is to be done only once. According to him, Brachial Block was not definite for restricting the limb ischemia in all the cases. Dr. Aparna, the Senior Registrar also gave similar statement as Dr. Negi had stated.

7. Dr. Rajneesh Pathania, Professor & Head of CTVS at IGMCH submitted that the reaction of an injection administered can take place irrespective of the route of administration. The severity of limb ischemia is more if the whole drug is given intra arterially. The immediate preventive measures to save the arm were necessary to be taken by doctors concerned. After administration of the injection, the patient was referred to IGMCH after four hours and it took about 1½ hours during transportation from DDU Zonal Hospital to IGMCH; therefore, there was only a remote possibility of saving the arm. He submitted that such situation could occur, once in millions and doctors in general are not in a position to manage such situations. The

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anesthetist would have been in a better position to manage such problem. He also submitted that generally before conducting a surgical procedure, an IV canula should be placed; then it will be 100% sure that injection has been injected into veins. In the present case, if IV canula had been used, the complainant would not have faced any problem. He also submitted that limb ischemia can occur even with IV injection of Phenergan.

8. We gave our thoughtful consideration to the arguments advanced by both the parties. As per the affidavit evidence of the complainant, there was delay in referring the patient to the IGMCH. Moreover, the patient was not provided ambulance, despite the fact that it was heavily raining outside. If the DDU hospital did not have facility for ambulance, then considering the situation, they could have called ambulance from IGMCH and shifted the patient properly.

9. From the evidence of Dr. Pathania and Dr. Negi, it is clear that the patient was not carefully attended at the first instance at 02:00 P.M. when she had suffered severe pain in her right hand. Therefore, the onus was upon the OPs to prove why the patient suffered limb ischemia. It is transpired from the medical record that the patient had suffered severe pain in her right forearm at 02:00 P.M. but neither the duty doctor nor the OP-2 attended the patient immediately. Therefore, the delay in examination of the patient had aggravated the ischemic process. Thus, the OP-1 hospital and he doctors failed in their duty of care towards the patient. In our view, the principle of 'Res Ipsa Loquitor' is squarely applicable in the instant case. No doubt, routinely IV canula is used to administer multiple IV infusions; but in the instant case, the medicine was to be administered at once only during the procedure. Therefore, in our view, it was not wrong on the part of OP-1 hospital for not using IV canula; however, the use of IV canula would be helpful to the patient to avoid such mishaps.

10. Considering the facts, the State Commission disposed of the complaint on the basis of Government Order dated 16-09-2008, as well as the Action Taken Report filed by Senior Medical Officer, DDU Zonal Hospital, Shimla and directed the OP-1 to deposit Rs.2,93,526/-, as it was agreed to be paid as ex gratia amount if the complainant agreed to accept it. In our view, the State Commission wrongly exonerated the OPs for medical negligence and deficiency in service. We hold that, it was negligence on the part of the OPs 2 & 3 working at DDU hospital. Therefore, the DDU hospital (OP-1) is vicariously liable. Therefore, we direct the OP-1 to pay an additional sum of Rs.2,00,000/- to the complainant within four weeks from the date of receipt of the order, in addition to the ex gratia amount as stated above. The DDU hospital is at liberty to recover the amount from their erring employees as per their rules and regulations.

11. The Appeal is hereby allowed. There shall be no order as to costs.

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DR. B.C. GUPTA

PRESIDING MEMBER

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DR. S.M. KANTIKAR

MEMBER

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