ORDER
APPEARED AT THE TIME OF ARGUMENTS THROUGH VIDEO CONFERENCING
For the Petitioners : Mr. Rahul Rathore, Advocate For the Hospital : NEMO
For National Insurance Co. : Dr. Sushil Kumar Gupta, Advocate For United India Ins. Co. : Mr. Maibam N. Singh, Advocate For New India Ass. Co. : NEMO
Pronounced on: 2nd July 2020
ORDER
PER DR. S. M. KANTIKAR, MEMBER
1. The Petitioners have filed these four Revision Petitions under Section 21 of the Consumer Protection Act, 1986 to challenge the impugned Order dated 24.11.2011 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula which dismissed the First Appeal No. 581 of 2007 filed by the Complainants for enhancement of compensation and allowed the Appeals Nos. 620/2007, 641/2007 and 723/2007 filed by the Opposite Parties. As a result the Complaint was dismissed.
This common order shall decide these four Revision Petitions mentioned above. The facts are drawn from the Revision Petition No.937 of 2012. The Parties designated as placed in the Original Complaint No. 121 of 2003 filed before the District Consumer Forum, Panchkula.
2. Brief facts that, a practicing lawyer Mr. Bhushan Kumar Kochar (since deceased, referred herein as 'the patient') suffered severe pain and discharge in the perianal region. On
5
4.12.2002 he approached Shori Hospital, (OP-1) at Pinjore and got himself examined from Dr. Sandhu (OP-3) . The patient's wife Smt. Veena Kochar (complainant no. 1) alleged that the OP-3 advised a minor small surgery for the perianal abscess and abdominal surgery (laparotomy) for appendicitis. On 5.12.2002 during laparotomy the anesthetist Dr.Sangeeta Shori (OP-2) and Dr.Sandhu (OP-3) noted pus in abdomen and it was not a case of appendicitis. There was gangrenous lesion also. The patient became critical the doctors OP-2 & OP-3 expressed their helplessness due to lack of facilities at OP-1 hospital and therefore on the same day evening referred the patient to PGI, Chandigarh. But unfortunately non- availability of ventilators in PGI, the patient was taken to Fortis Hospital, Mohali. The complainant no. 1 further alleged that at the time of shifting from OP-1 hospital, the detailed discharge summary, history and medical record of patient were not given. The OP doctors concealed their negligence who completely missed the diagnosis of ischeo-rectal abscess and performed wrong abdominal operation for appendicitis. Also, the OP-3 negligently put very small incision in the perianal region which did not help to remove large quantity of pus. At Fortis hospital, the patient stayed for 12 days, underwent two operations (6.12.2002 and 11.12.2002). It was diagnosed as large abscess in the perianal region extending to the medial aspect of thigh causing necrotizing fasciitis of the perineum. The patient died on 12.10.2002 in Fortis Hospital. The Complainant no. 1 alleged medical negligence and deficiency in service against the OP-1 to 3 causing death of her husband. She and her minor children filed a Consumer Complaint before the District Forum, Panchkula for seeking compensation.
3. The OPs filed their respective replies and denied their negligence during the patient's treatment. The OP-1 to 3 submitted that the patient approached OP-1 hospital in the morning on 04.12.2002 with severe pain and pus discharge from the perianal region. The patient was admitted and started IV fluids and higher antibiotics. Based on the clinical examinations and investigations, it was diagnosed as a case of septicemia with bilateral broncho pneumonia and ischeo-rectal fossa abscess with peritonitis. It was denied that the patient had appendicitis. The OP-3 is super specialized (MS,MCh.) having experience of 17 to 18 years. The patient was operated on 05.12.2002 by OP-3 with the anesthetist OP-2. During the operation, the collection of pus in the abdomen due to severe peritonitis noted. The Insurance Cos. OP-4, 5 and 6 in their written versions denied the negligence of the OPs 1 to 3. Their objection was that the Complaint was defective for non-joinder of parties as the Fortis Hospital was a necessary party, wherein patient stayed for 12 days and underwent two operations prior to his death.
4. On the basis of pleadings and evidence on record, the District Forum accepted the
Complaint and passed the following Order:
"8. In the result the instant Complaint is hereby allowed and it is directed that- The OPs No. 4 to 6 will pay a sum of Rs. 50,000/- towards medical treatment expenses;1.
The OPs No. 4 to 6 will also pay Rs. 1,00,000/- for mental agony and harassment to the Complainants;
2.
Further, the OPs No. 4 to 6 will also pay a compensation of Rs. 3,00,000/- to the Complainants.
3.
Also the OPs No. 1 to 3 will punitive damages of Rs. 5000/- and costs of Rs. 2000/- 4.
6
shall be paid in equal proportion by OPs No. 1 to 3. The punitive damages will be deposited with the Accountant of this Forum for being deposited in the legal Aid Account and the costs shall be paid to the Complainants.
5.
5. Being aggrieved, the three Insurance Cos. (OP-4,5 & 6) have filed separate Appeals (Appeal No. 620/2007,641/2007 and 723/2007) before the State Commission for setting aside the Order of District Forum whereas the First Appeal No. 581/2007 filed by the Complainants for enhancement of compensation. The State Commission allowed the three Appeals filed by the OP Insurance Cos. and dismissed the appeal filed by the Complainants for enhancement and consequently dismissed the Complaint.
6. Being aggrieved, two daughters and a son of the deceased have filed the instant four Revision Petitions.
7. Heard the learned Counsel for Parties on both the sides. They have reiterated their affidavit of evidence filed before the District Forum. We have perused the entire material on record including the hospital record of OP-1, PGI Chandigarh and the Fortis Hospital, Mohali.
8. The learned Counsel for the Complainants focused his argument on two counts. One the OP-1 hospital caused negligence during operation and two the negligence in referral without furnishing medical history or record.
9. We have carefully perused the indoor Bed Head Ticket of OP-1 hospital. It clearly shows that the patient was admitted in OP-1 at 7 AM on 04.12.2002. The OP-3 examined the patient and recorded the symptoms, signs and clinical findings. The patient was chronic alcoholic and very sick. There was diffuse abdominal tenderness, lungs showed bilateral crypts and bronchial breathing. The case was diagnosed as "Perianal abscess, Peritonitis? with Septicemia". The OP-3 advised to admit the patient with instruction for pre anesthetic checkup, consent and laboratory and radiological investigations, ECG etc. The patient was catheterized and treatment was started immediately with IV fluids, antibiotics (inj. Taxim, Metrogyl ), antacid (inj. Ranitidine), and analgesic (inj. Voveron).
10. It is pertinent to note that the consent form was signed by Veena Kochar- wife of the patient and Dr. N. S. Sandhu. We find it contains all the ingredients of informed consent i.e. the diagnosis, procedural details, risks & benefits and signatures. The details of operative procedure of laparotomy and IR fossa abscess drainage for her husband were clearly mentioned. It was the case of peritonitis and severe sepsis, patient had severe abdominal pain and in early ARDS, therefore the patient was not in a condition to give consent. It was an emergency, the treating doctor obtained the consent from the wife of the patient. In our considered view there was no illegality, it was a valid informed consent.
11. It is clearly evident from the material on record that on 04.12.2002, the OP-3 initially treated the patient conservatively. The patient was in early chronic renal failure (CRF), the fluid correction was advised. As per surgical consultation, there was urgent need for drainage for abscess along with laparotomy. On the next day i.e. 05.12.2002 before surgery, the patient was re-assessed. The reassessment findings are reproduced as below:
7
"Date 05.12.2002 Reassessment Patient has Ischiorectal fossa abscess leading to necrotizing fasciitis of perineum and abdomen wall. He is in septicemia with bronchopneumonia and early ARDS (Acute Respiratory distress Syndrome patient is also in early mild CRF (though urine output is adequate) he has remained afebrile and maintained his vital signs O/E he has feature of peritonitis in addition to the above problem. Pt needs surgery to drain the abscess as well as Lap in view of the peritonitis (needle aspiration showing purulent abdominal cavity fluid). The relatives have been explained the high risk of the surgery involved and the facts that he might need ventilation post OP for which he will need to be referred to PGI/GMCH as the facility is not available here. The have also been given the option of taking the pt to these places, if they desire but they declined and preferred full faith in the ability of the doctors at Shori Hospital and want to get treatment here.
In view of this the patient being taken up for surgery here."
Thus, in our view, the hospital and the treating doctors diagnosed the patient correctly and treated him as per the standard norms, we do not find any deficiency or negligence.
12. After the reassessment OP-3 operated the patient in the evening on 05.12.2002 with the help of anesthetist OP-2. The Operative Notes are reproduced below:
"Date: 05.12.2002 Operation Notes:
Dr. N.S. Sandhu Surgeon, Dr. Sangeeta Anesthetist GA (General Anaesthesia)
SA via midline incision lap done
About 5 liters of foul smelling purulent fluid in the peritorial cavity along with exudates and flakes.
Extensive necrosis and gangrene of the anterior abdomen wall more on right side. Necrosis originating with ischiorectal fossa extending perivrithrally, perineally, perivesically and extending upwards to the abdomen wall.
Thorough peritoneal toilet done and all loculation broken, all necrotic tissue removed, drain placed intra-abdominal right side with preperitonial layer (L) side in the subcutaneous tissue drain placed through the I.R. Fossa (Ishchiorectal Fossa) with the other end in preverical space.
Debridement perianal region done abdomen closed after checking haemostasis At the end of the operation the patient was conscious but his breathing effort was shallow. So it was decided to shift him to PGI for ventilator support. The relatives have been explained the situation and prognosis.
8
Thus, it is apparent from the operative notes (supra) written by OP-3 nothing was mentioned about appendicitis. Therefore, the allegation of Complainants about wrong operation for appendicitis and missed the diagnosis of ischeo-rectal abscess is not sustainable. After the operation patient became critical, had shallow breathing. Thus shifting of patient to PGI for ventilator support was correct decision of the doctors at OP-1. It was neither deficiency nor negligence, but it was reasonable practice and standard of practice.
13. There is nothing on record to prove that OP-3 committed medical negligence while performing the operation. The Complainants failed to produce any Expert evidence, except the solitary affidavit Dr. S.M. Bose, a Senior Consultant Surgeon in the Fortis Hospital who treated the patient (deceased). He stated that the patient was in-a state of shock when brought to the Fortis Hospital. The breathing was fast and there was difficulty in breathing. The patient was found to have a stitched wound on the abdomen and two drains on each side draining out foul smelling pus discharge. Also, noted a small incision on the right side of anal opening through which foul smelling pus was coming out. The District Forum has observed that one doctor in the emergency/casualty had talked Dr. Sangeeta (OP-2) who gave a brief summary of the case. Moreover, Dr. S. M. Bose nowhere stated that the treatment given by the OP-3 was improper or negligent.
14. Before parting with this order, the another grouse of the Complainants that the OP-1 hospital did not supply the detailed discharge summary and medical record to enable the doctors at Fortis Hospital to treat the patient more effectively. We note from the pleadings of the OP-1 hospital that detailed in-patient record was not given. Only referral slip was given and held the oral conversations between the doctors. We have perused the discharge summary of OP-1 hospital issued on its letterhead. It contains all the details like diagnosis, investigations and surgical treatment. It is evident that the patient was referred to PGI; Chandigarh wherein the doctors after going through the details in referral note, further referred him to Fortis Hospital due to non-availability of ventilators. Thus in our view the instant detailed discharge note was sufficient for management of emergency at Fortis hospital. Moreover, in case of need the Doctor at referral hospital (in the instant case Fortis Hospital) shall call for treatment record from the previous hospital or Doctor.
15. It is pertinent to note that nearly for 2½ years the OP-1 hospital did not file the medical record before the District Forum, till the evidence of Complainants' was completed including examination of Dr. S.M. Bose. The Complaint was filed in May 2003 and the medical record (Ex.R1) was produced at the time of OP's evidence in Aug/Sep 2005. The learned counsel for the Complainants relied upon the decisions of this Commission in RP/2605/2012 titled Dr. N.J. Karnavat v Patel Ishwarlal Mangalal & Ors. decided on 07.10.2014 and FA/387/2010 titled K.Kotaiah Iras versus Dr. T. Anjaiah & Ors. which held the hospital liable for the non-issuance of medical record. In our considered view it was not sufficient that a referral slip was given or that there was oral conversation between the treating doctors of referring hospital and second hospital. It should be borne in mind that the referring hospital is duty bound to provide complete medical record to the second (referral) hospital. The OP-1 hospital failed to supply entire medical record despite request at the time of discharge and then after death of patient. It was the deficiency in service of OP-1 hospital which is also contrary to Art.1.3 & 7.2 of MCI Regulations/rules 2002. The Art 1.3.2 of the Regulation is reproduced below:
'If any request is made for medical records either by the patients / authorized
9
attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours.'
16. The medical record is a vital document and property of patient. It is mandatory for hospital/doctor to issue it to the patient / attendant on request. Thus, non-issuance of medical record was deficiency in service, and the OP-1 hospital is liable to that extent only.
17. As discussed (supra) there was no medical negligence in the instant case, but non- issuance of medical record was deficiency in service of OP-1. In our view, the deficiency was not fatal and not attributed to the cause of death of critically ill patient. The patient was in OP- 1 hospital for 1 ½ days and thereafter 12 days in Fortis Hospital. The doctors at both the hospitals made their all efforts, but patient could not survive. Merely because a patient has not favorably responded or surgery has failed, the doctor cannot be held straightway liable for medical negligence. Similar view had been taken by Hon'ble Supreme Court in a number of cases in which medical negligence by the treating doctors / hospitals have been alleged.
18. Based on the forgoing discussion in the given facts and the entire material on record before us, it is not feasible to attribute negligence on the OP-1 hospital and doctors OP-2 & 3. However, as discussed supra ( para 13,14 and 15) the OPs are held liable for deficiency in service in not providing the Medical Record of the patient specifically when the attendants of patient had demanded it and the Regulations of Medical Council of India provide for it. Accordingly, the OP- hospital is directed to pay lump sum of Rs. 100000/- to the Petitioners within six weeks from today, failing which the amount shall carry 10% interest till its realization. The Insurance Cos. shall comply the order promptly, if the OP Hospital availed the Insurance Cover.
With the above terms all these four Revision Petitions are disposed.
......................J
R.K. AGRAWAL
PRESIDENT
......................
DR. S.M. KANTIKAR
MEMBER
10