CHITRA BHUWADIA vs CHIRAYU HEALTH And MEDICARE PVT. LTD.

THIS appeal is heard by this Single Bench constituted specially by the President of the State Commission to hear appeals/revisions arising out of order passed by the District Consumer Disputes Redressal Forum, Bhopal/Sehore in the proceedings of which, Member of this Commission, Smt. Neerja Singh has participated as Member of those District Forums (as then she was). There is no other Member in the Commission.

BY the order impugned the District Forum, Bhopal has dismissed complaint of appellant''s claiming compensation Rs. 19,45,000 against respondents for the alleged negligence on latter''s part in the matter of treatment of late Mr. P.N. Yadav, the husband of appellant No. 1 and father of appellant Nos. 2 and 3. Respondent No. 1-Chirayu Health and Medicare Pvt. Ltd. is a private hospital at Bhopal, commonly known as Chirayu Hospital owned and run by Dr. Ajay Goenka. Respondent No. 2-Dr. I.D. Chourasiya is a neurosurgeon working as Assistant Professor in Gandhi Medical College associated with Government Hamidia Hospital, Bhopal. Respondent No. 3 - Dr. Sunil Malik is a neuro-physician, D.M. in neurology practising as neuro-consultant at Bhopal. Both these doctors are visiting doctors of respondent No. 1- Hospital, and when called they go and treat the patients at that Hospital on payment of fees. The respondents on the relevant date were insured with respondent Nos. 4 and 5 Insurance Companies under Professional Indemnity Policies.

Late Mr. P.N. Yadav, Senior Scientific Officer at FSL Sagar (M.P.), along with his wife Smt. Chitra Bhuwadia (appellant No. 1 herein), was staying with his elder brother H.S. Yadav at latter''s residence 267, MIG, Bag Mugaliya, Bhopal, when on the morning of 26th January, 2004 he fell seriously ill and was taken by his brother and admitted in the ICU of respondent No. 1-Hospital. His BP was 220/130 mm/Hg. and blood sugar 339 mg/%. He had paralysis of left half of both body. His CT scan revealed a large right sided intra cerebral haemorrhage. He was examined by Dr. Sunil Malik and Dr. I.D. Chourasiya. It appears that he was given treatment for control of his BP and sugar. Dr. Chourasiya performed surgical procedure namely open craniotomy for hematoma evacuation. The patient, remained in the Hospital till 4.3.2004 when he was discharged and taken to Damoh a District Headquarter and paternal home of appellant No. 1. There he was admitted in Government District Hospital where he expired on 12.3.2004.

THE case of appellants before the District Forum, in short, was that surgical intervention of the patient having high blood pressure and high sugar was contra indicated and ought not to be performed by the opposite parties. THE operation was done without cerebral angiography or MRI and without controlling the sugar and BP. THE hospital, it was further alleged, did not have neuro-surgery unit and no permanent neuro-surgeon or neuro-physician are posted in the hospital nor available for 24 hours. It was further alleged that the surgery was done without the consent of appellant-wife. After operation, it was alleged, the condition of the deceased worsened and no proper post-operative care was taken and the patient instead of being referred to any higher centre for treatment such as Hamidia Hospital was forcibly discharged on 4.3.2004. According to the complainants, the respondent No. 1-Hospital was paid a total sum of Rs. 1,45,000 for the treatment of late Shri Yadav, but the hospital did not pass receipt of this payment which deprived the appellants from seeking reimbursement of treatment charges from the Government. THE complainants prayed for a total compensation of Rs. 19,45,000. Respondent-opposite parties denied all the allegations made by the complainants and submitted that respondent No. 1-Hospital is fully equipped having qualified and trained staff of 40 people with 8 doctors available in the hospital round-the-clock. The hospital, they claimed, is rated the best in Bhopal. They denied that there was any need for cerebral angiography or MRI inasmuch as the CT scan of the patient confirmed cerebral haemorrhage. The surgical procedure craniotomy was performed after necessary treatment and control of BP and sugar. The procedure was undertaken after obtaining due consent of the elder brother of the patient as also of appellant No. 1, who it is said had also consulted on phone, her brother doctor at Sagar. Dr. D.K. Satpathi, Former Director of Medico-Legal Institute, Bhopal and a family friend of deceased patient accompanied him and was also consulted. The critical condition of the patient and the risk/prognosis of medical treatment versus surgical treatment were clearly explained to all the se persons who accompanied the patient. The appellants denied that the patient should not have been operated upon. They explained that the patient had a large right sided intra cerebral haemorrhage and his neurological status was fast deteriorating. The patient had started decerebrating and his glasgow scale was just 7. Under these circumstances the surgery, they asserted, was the only life saving measure in this case and the chances of survival of the patient with medical treatment were negligible. The surgical procedure craniotomy performed on the patient was standard procedure as recognized by the medical science all over the world. Dr. I.D. Chourasiya, who did this surgery is a qualified and experienced surgeon while Dr. Sunil Malik, who examined and treated the patient before and after the surgery was a highly qualified and experienced neuro-physician. The anaesthetist was Dr. Anil Bhati who had all the pre-anaesthetic checkup done, had found and certified the patient fit for surgery. The condition of the patient, it was claimed, improved after surgery. The condition of the patient, it was claimed, improved after surgery. He was discharged from the hospital at the request of his family members who were unable to bear the hospital expenses. It is further alleged that the appellants have made a payment of Rs. 30,000 + Rs. 43,000 as against the total charges of Rs. 1,26,790. A sum of Rs. 28,467 is also due from them towards cost of medicines purchased by them from Chirayu Medical Stores, Bhopal. Appellant No. 1, it is contended, later on insisted for grant of certificate of payment of Rs. 1,26,790 which was refused by the respondent and it was for this reason that false complaint has been filed against them after more than six months of the death of the patient.

BOTH parties led evidence in the form of affidavits and documents. The treatment papers of the deceased patient were also produced and proved in evidence. The Forum below after evaluation of the evidence on record came to the conclusion that no negligence on the part of respondents was established. With this finding, the complaint of appellants was dismissed leaving the parties to bear their own costs as incurred. The appellants are now before this Commission in appeal. We have heard Dr. V.S. Yadu (he is medico-cum-lawyer) learned Counsel for appellants and Mr. Mohan Chouksey, learned Counsel for respondent Nos. 1, 2 and 3 and Mr. Pradeep Nighoskar and Ms. Bharati Arora, learned Counsel for respondent Nos. 4 and 5 who supported the case of the respondents. We have also very carefully gone through the entire evidentiary material available on record. The main allegation against the respondents was that the surgical procedure was not at all warranted in the case and the patient whose condition was not very serious ought to be treated conservatively i.e., by medicines. Learned Counsel appearing for appellants pointed out that late Mr. P.N. Yadav was having high blood pressure and high sugar. He has filed medical literature to support his argument that surgical intervention of the patient having high blood pressure and high sugar is contra-indicative and ought not to be undertaken by the opposite parties. However, the respondents have filed affidavits of Dr. Ajay Goenka, Dr. I.D. Chourasiya and Dr. Sunil Malik, who all have testified that before undertaking the surgical procedure the necessary treatment to control BP and sugar was given to the patient and his condition was continuously evaluated. He was also examined by anaesthetist Dr. Anil Bhati who got the all checks done to ascertain that the condition of the patient was fit for surgery. They all with the help of medical literature (quoted extensively in their affidavits) further testified that the condition of the patient was such that the surgical intervention was only life saving measure and the same was undertaken as per standard procedure recognized by the medical science. All these doctors, it is seen, are highly qualified and experienced persons in their respective fields and no motive could be attributed to them in their taking decision for the brain surgery of the patient. Their testimony remained virtually unchallenged inasmuch as no counter affidavit of any expert in the field of medical science could be filed by the appellants to establish negligence on the part of respondents.

IT is significant to note that while Dr. I.D. Chourasiya is a neuro-surgeon, Dr. Sunil Malik who examined and treated the patient before and after surgery is a highly qualified neuro-physician with long experience. The decision for surgery was taken jointly by these two doctors. Needless to say that Dr. Sunil Malik as Physician would not have agreed for the surgery had there been any chance even the remote, of survival of the patient on the basis of conventinal medicinal treatment.

MEDICAL literature has been produced by both the sides to support their rival contentions (vide Annexures A-11 to A-13 and Annexures R-1 to R-13). We need not to reproduce them here. Suffice to say that lot of medical literature is available to show that in a case like the one in hand where the condition of the patient after cerebral heamorrhage was fast deteriorating, the surgery was probably the last life saving measure. It is true that the patient was admitted in the hospital with high blood pressure and high sugar level, but as testified by the aforesaid three doctors and evidenced further by the treatment papers, all necessary treatment was given to the patient to control his BP and sugar level and it was only when the were brought under control that the surgical procedure was undertaken. Conflicting medical literature justifying the rival contentions notwithstanding, the question still remains whether the opposite party-doctors can be held guilty of medical negligence. We may usefully refer here the of quoted judgment of the Hon''ble Supreme Court in the case of Jacob Mathew (Dr.) v. State of Punjab & Anr., III (2005) CPJ 9 (SC)=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC)=VI (2005) SLT 1=AIR 2005 SC 3685, Their Lordships held: "Negligence in the contest of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational neligence is different from one of professional negligence. A simple lack of care, an error of judgment or on accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed."

(Emphasis supplied) Their lordships further observed: "A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a profes-sional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not in position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."

(Emphasis supplied)

In the instant case also, it cannot be said that the decision for surgery taken by the team of respondent-doctors coming from different disciplines of medical science, was wholly wrong. The treatment papers revealed that the condition of the patient improved after the operation. There is evidence to show that till the time the patient was taken away from the hospital, his condition was gradually improving. By 7th day, post-operatively his glasgow scale score had become 12 as against scale score 7 only before the operation. During hospitalization the condition of the patient was monitored continuously and he did not require any life support. It seems that he was discharged at the request of his family members, who were unable to bear hospital expenses. This is evident from the fact that the patient instead of being taken to any other higher medical center like Hamidia Hospital, he was taken by the appellant to their home town Damoh which certainly did not have better medical facilities than Bhopal. His discharge ticket of Civil Hospital Damoh also revealed nothing so as to indicate any negligence on the part of respondents.

IT was a case of hypertensive brain haemorrhage. The opposite parties have placed on record literature to show that in such a case angiography is rarely indicated. Similarly MRI was not done as the CT scan confirmed cerebral haemorrhage. The allegation made in this behalf by the appellants cannot be thus accepted. Due consent for surgery was also obtained from the elder brother Mr. H.S. Yadav of the deceased patient. It is significant to note that this brother Mr. H.S. Yadav has filed affidavit for the respondents corroborating their testimony. Affidavit of Dr. V.K. Satpathi, a family friend of the deceased patient is also filed clearly evidencing that consent for surgery was given after due deliberations with appellant-Smt. Chitra Bhuwadia. It is further stated by these witnesses that doctor brother of Smt. Chitra Bhuwadia at Sagar was also consulted on phone and it was only after his node that the consent for surgery was given. Again there is no rebuttal of this evidence led by the respondent. Even no affidavit of the brother doctor of the appellant is filed in rebuttal. It was, therefore, wrong on the part of appellants to say that no proper consent for surgery was obtained.

DR. Ajay Goenka in his affidavit has given details of the infrastructure available in his hospital. He is corroborated fully by the two other treating doctors DR. I.D. Chourasiya and DR. Malik. It was, thus, wrong on the part of appellants to say that no proper infrastructure was available in the hospital to undertake neuro-surgery. Interestingly the complainants have alleged that the patient ought to be referred to Hamidia Hospital which according to them was possessed of better amenities and facilities. It is, however, significant to note that DR. I.D. Chourasiya who performed surgery was from the same hospital and working as an Assistant Professor in Gandhi Medical College, Bhopal. It is further significant to note that on discharge the patient was taken by appellants to Sagar having no better medical facilities than Bhopal. If the appellants were of the view that the Hamidia Hospital was a better equipped for the treatment of the patient, they would not have certainly taken the patient to Sagar, and instead admitted him in Hamidia Hospital. Their conduct destroys their allegation that the respondent-doctors instead of undertaking treatment of the patient ought to have referred him to Hamidia Hospital. Appellants before filing complaint have served a legal notice (Annexure R/2) on respondent No. 1 -hospital on 2.4.2002. In this notice their grievance was only regarding non-grant of certificate of payment of Rs. 1, 45,000. Significantly no allegation regarding negligence in treatment was made in this notice served after three months of the discharge of the patient from the respondent-hospital. There is evidence available on record to show that beyond making payments of Rs. 70,000 no further payment was made by the appellants towards treatment and medicine charges. Still the appellants insisted for issue of receipt of payment of Rs. 1,45,000 which was rightly refused by the respondents. It will not be also unreasonable to infer that the dispute arose only when respondent No. 1-hospital refused to grant false receipt of payment to the appellants. The entire exercise on the part of appellants rather appeared mala fide. They have been rightly non-suited by the Forum below. Their appeal should also thus fail. In the result, the appeal is dismissed, but with no order as to costs. Appeal dismissed.