DEVENDRA KUMAR SHARMA vs RESEARCH

THE complainant Shri Devendra Kumar Sharma, Shri Anand Sharma and Miss Aekta Sharma have prayed for issuance of a direction to the opposite parties - Post Graduate Institute of Medical Education & Research Centre, Chandigarh though its Director, Dr. V.K. Khosla, Professor and Head of Neuro Surgery Department, P.G.I., Chandigarh and Dr. Gauri Joshi, the then Incharge/Senior Resident, I.C.U. Ward 3-A, 3rd Floor, P.G.I., Chandigarh to pay a compensation to the tune of Rs. 15 lacs for the deficiency in service on account of negligence of the opposite parties while performing the operation on the person of Smt. Indrawati Sharma w/o complainant No. 1 - Shri Devendra Kumar Sharma and mother of complainant Nos. 2 and 3. THE case as set out in the complaint filed under Section 17 of the Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act], which are relevant, may be mentioned briefly, as under.

SMT. Indrawati Sharma, the deceased, wife of the complainant No. 1 - Shri Devendra Kumar Sharma and mother of complainant Nos. 2 and 3 was taken to P.G.I., Chandigarh - opposite party No. 1 for treatment regarding internal caiotico ophthalmic Aneurysm on 3.9.1999 and was admitted there for further investigation on 3.9.1999 itself. Prior to her admission in P.G.I., she was getting treatment at Amritsar and Ludhiana and was referred to P.G.I. by Dr. Ajit Singh Randhawa of Neuro Centre, Old Jail Road, Amritsar vide letter of reference, the photocopy of which has been filed as Annexure P-46 with the affidavit of the complainant No. 1 - Shri Devendra Kumar Sharma. This letter of reference is dated 1.9.1999. It shows that Dr. Ajit Singh Randhawa advised urgent operation. At the time of her admission, SMT. Indrawati Sharma was aged about 41 years. She was running a boutique and was having her own earning there from. She remained admitted in P.G.I. and it was on 27.9.1999 when she was taken for operation. Copy Annexure P-3 has been placed on record showing that due to non-availability of drill procedure, the operation was abandoned and closure done without clipping of Aneurysm. The name of the surgeon was mentioned as Dr. V.K. Khosla. SMT. Indrawati Sharma was again taken for operation for the second time on 6.10.1999 and was operated upon and Aneurysm was clipped with clippers. It is alleged that the condition of the patient remained rather critical during the period from the first operation which was incomplete i.e. the one undertaken on 27.9.1999 and the second operation which was done on 6.10.1999. The patient SMT. Indrawati Sharma, it alleged, could not tolerate the stress and strain of the surgery done twice on her and she died on 8.10.1999 at 10 a.m. After the second operation which was performed by Dr. V.K. Khosla - opposite party No. 2, the patient was brought back to the I.C.U. where opposite party No. 3 - Dr. Gauri Joshi was Incharge and Senior Resident, who did not care at all for the patient. It is alleged that the said doctor that the patient could breath with great difficulty and was not responding to anything but she did not show any urgency and did not respond properly. It is alleged that Dr. Gauri Joshi summoned a Catheter which was inserted inside the mouth of the patient and due to the faulty handling of the said Catheter and its wrong use, SMT. Indrawati did not survive and died. Regarding the amount of compensation, it was alleged in the complaint in para 10 that the deceased was in the age of 47 years at the time of death. She had been running a boutique at Ludhiana and was earning about Rs. 4,000/- to Rs. 5,000/- per month. Apart from it, there was a lot of love and affection for the husband i.e. complainant No. 1 and children i.e. complainant Nos. 2 and 3 who are both unmarried and are still students. They have suffered on account of untimely death of their mother. The husband has also lost the company of his wife due to the negligence of the opposite parties. The complainants have thus claimed a sum of Rs. 15 lacs as compensation for the death of Smt. Indrawati which was caused due to negligence on the part of the opposite parties.

Notices were issued to the opposite parties who filed their joint written statement through the Counsel Mr. Anil Malhotra, Advocate. It has been categorically denied that there was any negligence, carelessness or deficiency in service on the part of opposite parties. It has been contended that it is not a case of consumer dispute under the C.P. Act. According to the opposite parties, both the operations were of a routine nature and not emergency operations. The complainant No. 1 himself gave his consent [Annexure R-1] for operation performed twice on 26.9.1999 and 6.10.1999. It was denied that the patient had been referred to P.G.I.M.E.R., Chandigarh as a case of emergency operation. It was on 3.9.1999 that the patient - Smt. Indrawati Sharma was seen and examined at P.G.I. She had a complaint of decreasing vision of one and a half months duration which was painless and progressive. There was no history to suggest any kind of acute emergency situation as the provisional diagnosis was "unruptured" bilateral IC-ophthalmic aneurysms. Since the aneurysm was cold and "unruptured" there was non-emergency situation at all. Also the patient was fully conscious and had no acute discomfort and was having problem for one and a half months.

THE operation of Smt. Indrawati Sharma was fixed for 26.9.1999 on that day. She had been taken to Operation THEatre. THE operation had started and the skull was cut and removed for clipping aneurysms with clippers. THE operation, however, had to be abandoned for various reasons and in the interest of patient. THE skull was replaced and stitched. THE patient had regained consciousness and was moving 4 limbs and her condition was stable. THE opposite parties have further contended that the drill was available but it did not function satisfactorily. THE operation had already gone for a long time. THE operative finding indicated that the patient moved on for another 4-6 hours roughly. It is alleged that in view of the entire situation, a decision was taken to postpone further proceedings and take up the operation again at a later date. It was a matter of highly skillful judgment to avoid any kind of risk to the patient that the decision to postpone was taken by the Surgeon. It has been submitted that the respondent No. 2 had taken the best possible surgical job under the given circumstances and as per the norms of medical ethics. It was reiterated that drill had no relation with the final outcome i.e. the death of this patient. This is proved by the fact, it is alleged, that the second operation done on 6.10.1999 was totally successful and the aneurysm was clipped without any problem during the operation. After the second operation, the patient was conscious which proved the success of the operation. Regarding the allegation of negligence and carelessness on the part of the opposite party No. 3 - Dr. Gauri Joshi, it was contended that the indoor patient file clearly showed that Dr. Gauri Joshi attended to the patient fully and all necessary medical measures as indicated were undertaken. A.C.T. Scan, X-Ray Chest, Blood Test were carried out in the post operative period and the treatment executed accordingly. Dr. Gauri Joshi did not use catheter as has alleged by the complainant but she used Endo-Tracheal tube which was required to treat respiratory infection and respiratory difficulty of the patient. It was specifically mentioned that full medical care was provided to the patient. The treating doctor was available to attend to the patient and take care of all immediate needs and medical attention. The opposite parties have contended that the second operation was successfully carried out after due consent of her husband and aneurysm was clipped. The patient regained the consciousness. However, the condition of the patient deteriorated later on because of other unrelated cause which may have been a possible chest infection which was not directly caused by the brain operation done on the patient. It is alleged that such chest infections are known to occur under different medical conditions and after different kinds of surgical operations. It was contended that since the husband of the deceased - Smt. Indrawati Sharma refused to give consent to the post mortem examination of the dead body of Smt. Indrawati Sharma, the cause of death would not be established. The case of the opposite parties as set out in the written statement is that the patient was given the highest degree of care and both operations were well-planned. The patient had no complications after the first operation. The aneurysm was successfully clipped and the patient was fully conscious even after the second operation.

THE complainants have filed their affidavits in the evidence and Annexures P-1 to P-46. THE opposite parties led evidence in the shape of affidavit of Dr. V.K. Khosla, Professor and Head of Neuro Surgery Department, PGIMER, Chandigarh and of the affidavit of opposite party No. 3 - Dr. Gauri Joshi, Senior Lecturer, Department of Neuro Surgery, Government Medical College, Sector 32, Chandigarh who at the time of this case was Senior Resident in Neuro Surgery, Ward 3-A, PGIMER, Chandigarh. THE opposite parties have filed two Annexures i.e. R-1 and R-2. Annexure R-1 contains the consent of complainant No. 1 - husband of the patient Smt. Indrawati Sharma regarding the two operations conducted on 26.9.1999 and 6.10.1999. We have heard Mr. R.S. Ahluwalia, Advocate, learned Counsel for the complainants and Mr. Anil Malhotra, Advocate for the opposite parties. We have carefully perused the evidence on record of the case. The learned Counsel for the opposite parties raised a preliminary objection about the non-applicability of the provisions of the C.P. Act in the instant case. It was averred in para 1 of the preliminary submissions in the written statement of opposite party Nos. 1 to 3 that the complaint was wholly misconceived as neither any consumer dispute nor any deficiency in service is allegedly made out as per the allegations made in the complaint. The Hon''ble Supreme Court in the case of Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC)=AIR 1996 SC 550, held that "Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ''service'' as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free Service would also be ''service'' and the recipient a ''consumer'' under the Act". So far as the plea of the opposite parties on facts regarding the complaint not making out allegations of deficiency in service is concerned, we will take up the said plea when we consider the case of the complainant regarding the alleged medical negligence and deficiency in service on the part of the opposite parties.

IT is the admitted case of the parties that Smt. Indrawati Sharma w/o complainant No. 1 - Shri Devendra Kumar Sharma was brought to the P.G.I., Chandigarh on 3.9.1999 where out patient ticket [Annexure P-1] was prepared which showed provisional diagnosis of right internal carotico ophthal aneurysm and was referred to Dr. V.K. Khosla - opposite party No. 2. IT is not much of significance as to whether the operation was of emergency nature or of routine nature because the patient remained admitted in P.G.I. and showed no deterioration in the condition of her disease aforesaid. The ground of emergency has been raised on the basis of the reference letter of Dr. A.S. Randhawa of Neuro Centre, Amritsar [Annexure P-46] dated 1.9.1999 where it is mentioned "advised urgent operation". A perusal of the out patient ticket prepared at the P.G.I. which is Annexure P-1 would go to show that there is no reference to the aforesaid letter of Dr. A.S. Randhawa [Annexure P-46]. A perusal of the affidavit of Dr. V.K. Khosla - opposite party No. 2, the concerned Surgeon who was working as Professor and Head of Neuro Surgery Department, P.G.I., Chandigarh would go to show that the operation in the case of the patient - Smt. Indrawati Sharma was described of a routine nature and not emergency operation. IT has been deposed in the affidavit of Dr. V.K. Khosla that "since the aneurysm was cold and unruptured, there was no emergency situation at all. Also the patient was fully conscious, had no acute discomfort and was having problem for one and a half months" [vide para 3 of the affidavit]. The complainants have not been able to show that the operation for the aforesaid disease of the patient - Smt. Indrawati Sharma was not of a routine but of emergency nature and it was delayed at P.G.I., Chandigarh. On the other hand, the statement of Dr. V.K. Khosla made in his affidavit clearly shows that the operation was of a routine nature and not an emergency operation.

THE grievance of the complainants is that the second surgery for clipping the aneurysm with clippers could be avoided, had the opposite parties taken due care and caution at the time of the first operation. Mr. R.S. Ahluwalia, learned Counsel for the complainants referred to Annexure P-3, photocopy of the operation notes which shows the following entry against the column "Operation completed" : "Due to unavailability of drill procedure, abandoned and closure done without clipping of aneurysm."

THE name of the Surgeon mentioned is Dr. V.K. Khosla. It is not disputed that Annexure P-3 is not the correct copy of the notes of the operation undertaken on 26.9.1999 on Smt. Indrawati Sharma. THE complainant No. 1 - Shri Devendra Kumar Sharma has in his affidavit deposed that when Smt. Indrawati Sharma was brought out of the operation theatre, she was not responding to anything and seemed to be in a critical condition. He further deposed that she was in an unconscious condition and was unable to move her limbs. It is transpired that the clippers which were to be used were not used and were in fact returned back to the deponent i.e. complainant No. 1 who talked to Dr. V.K. Khosla who told him that the operation was rightly performed. It has been further deposed that on further questioning Dr. V.K. Khosla admitted that altogether the operation had started and the skull of the said Smt. Indrawati Sharma was also moved for fixing the clippers but due to unavailability of the drill, the said operation could not be completed and it had to be abandoned without fixing the said clippers. This averment of the complainant No. 1 finds ample support from Annexure P-3 which is the photocopy of the record of the opposite parties prepared at the time of the first operation. THE opposite parties have, however, denied the abandonment of the first operation due to non-availability of the drill procedure and have gone to the extent of saying that the drill machine was altogether not an essential item for conducting this operation. It has been contended by the opposite parties that the first operation had to be abandoned on a number of grounds and that too in the interest of the patient. We have carefully gone through the affidavit of Dr. V.K. Khosla and find that the stand taken by Dr. V.K. Khosla regarding the use of drill machine in the operation is quite shaky and even contradictory. In the first place, the evidence of Dr. V.K. Khosla is contrary to the own record of the P.G.I. [Annexure P-3]. In para 4 of his affidavit, Dr. V.K. Khosla deposed, inter alia, as under : "...The clips were not used and, hence, returned to the attendants. The drill was available but did not function satisfactorily, and also the operation had already gone on for a long time. Furthermore, the operative findings indicated that the operation would go on for another 4-6 hours roughly. It may also be added, once again, that this was a case of non-ruptured aneurysm and not a ruptured aneurysm. In view of the entire situation, a decision was taken to postpone further proceedings and take up the operation again at a later date. So, it will not just for want of a drill that further proceedings were deferred. It was a matter of a highly skillful judgment to avoid any kind of risk to the patient that the decision to postpone was taken by the Surgeon. ....It may be added that the drill had no relation with the final outcome (death) of this patient ........"

In para 5 of his affidavit, Dr. V.K. Khosla deposed, inter alia, as under : "....With the foresight that drill may be required. It was arranged from another department as is done on several other occasions. For this operation also a drill was borrowed from another department. It is pertinent to add that such operations have been done without a drill also. But in this particular case it was decided during the operation that it would be hazardous to proceed further and hence further proceedings were postponed...."

[Emphasis supplied]

IT will be seen from the above extracts of deposition made in the affidavit of Dr. V.K. Khosla that the stand taken by him regarding the use of, availability of the drill machine is self contradictory. Suffice it to say that the need for the drill machine in the instant case was felt as the same was allegedly borrowed from another department, but the same allegedly did not function at the time of the operation. Dr. V.K. Khosla has admitted in his deposition in para 5 that the drill did not function at the time of the operation though he claims that the same was immaterial. IT is thus quite evident from the affidavit of Dr. V.K. Khosla himself that the first operation had to be abandoned due to un-availability of the drill machine, which is mentioned in Annexure P-3 or may be due to the drill machine though available and borrowed from another department but not functioning properly at the time of the operation. The other situations for posponing the operation have not been mentioned as the cause for abandoning of the operation, in Annexure P-3. The evidence on record thus clearly shows that at the time of the first operation, due care and caution was not taken. The operation commenced, the skull of the patient was cut and removed for clipping the aneurysm with clippers but the same had to be abandoned due to the unavailability of the drill procedure as mentioned in Annexure P-3. This clearly amounts to carelessness and negligence on the part of the opposite parties and if adequate arrangements regarding the drill machine had been made and it had been ensured that the drill machine available in O.T. was functional, the operation could be finished on 26.9.1999 itself by clipping the aneurysm with the clippers. The necessity to operate the patient for the second time on 6.10.1999 could thus be avoided. So far as the defence of the opposite parties regarding the written consent given by the complainant No. 1 - Sh. Devendra Kumar Sharma to undergo surgery of his wife at his own risk is concerned, Annexure R-1, photocopy of the consent given on the date when the operations took place i.e. on 26.6.1999 and 6.10.1999 is concerned, it may be pointed out that the complainant No. 1 gave his written consent to undertake the risk involved in the surgery of his wife done according to the established medical standard and with all due care and precaution. The consent cannot be taken to be a valid defence where the complainant is able to show that there was negligence and carelessness on the part of the opposite parties at the time of the surgery. Therefore, it cannot be taken as an absolute defence that since complainant No. 1 had given his written consent for the risk involved in the surgery of his wife, hence, he cannot now raise a plea of negligence or carelessness, if any, taking place at the time of operation. It is in this background that we have to consider the allegations of negligence and carelessness made in the complaint at the time of the first operation taking place on 26.9.1999.

HOWEVER, it is to be considered as to whether the abandonment of the operation on 26.9.1999 was in any way responsible for causing the ultimate death of the patient Smt. Indrawati Sharma. In other words, it is to be considered whether the aforesaid carelessness, negligence and deficiency on the part of the opposite parties in not properly ensuring the availability of a functional drill machine at the time of the first operation is in any way the cause in the ultimate death of the patient Smt. Indrawati Sharma. The evidence of the opposite party No. 2 - Dr. V.K. Khosla clearly shows that the patient - Smt. Indrawati Sharma regained the consciousness after the first operation and her condition remained stable and she was fit enough to be taken for surgery for the second time on 6.10.1999. The complainants have alleged that the condition of Smt. Indrawati Sharma was critical during the period from 26.9.1999, the date of first operation and 6.10.1999, the date of the second operation. This allegation made by the complainant which is also deposed to in the affidavit of complainant No. 1 - Shri Devendra Kumar Sharma is controverted by the clear, cogent and specific deposition made in the affidavit of Dr. V.K. Khosla. Apart from it, there is document on record to show that the condition of Smt. Indrawati Sharma deteriorated after the first surgery and her condition became critical. It is significant to mention that the complainant did not consider it necessary to cross-examine Dr. V.K. Khosla or Dr. Gauri Joshi in respect of their deposition made in their respective affidavits. Therefore, the averments made by the opposite party Nos. 2 and 3 in their affidavit remained uncontroverted. Apart from it, these opposite parties were the doctors concerned with the operation and treatment of the patient Smt. Indrawati Sharma. We find no valid reasons to disbelieve the statement of Dr. V.K. Khosla regarding the condition of the patient at the time of first surgery and thereafter till second surgery was stable and had not deteriorated. The averments made in the affidavit of complainant No. 1 regarding the condition of his wife Smt. Indrawati Sharma being critical during the aforesaid period is thus not worthy of credence. The second operation performed on Smt. Indrawati Sharma was successful inasmuch as the aneurysm were clipped with the clippers and after the completion of surgery, the patient regained consciousness and she had been shifted to I.C.U., Ward-A of the P.G.I., Chandigarh where she remained alive till 6.00 p.m. of 8.10.1999. The allegations made in the affidavit of the complainant regarding the second operation performed on the patient - Smt. Indrawati Sharma negligently by Dr. V.K. Khosla is general in nature and is not supported by any record of the P.G.I. On the other hand, the deposition made by the opposite party Nos. 2 and 3 i.e. Dr. V.K. Khosla and Dr. Gauri Joshi in their respective affidavits shows that the second operation was successful and the patient had been removed after regaining consciousness to I.C.U., Ward-3A.

WE are thus of the considered opinion that though there was carelessness on the part of the opposite parties in not assuring the availability of a proper and functional drill machine at the time of the first operation done on 26.9.1999 but the same could not be established as the cause for the ultimate death of the patient Smt. Indrawati Sharma.

SINCE the opposite parties have been found to be careless and negligent at the time of the first operation performed on 26.9.1999, the amount of compensation and liability on the opposite parties to pay the same is to be considered. Dr. V.K. Khosla - opposite party No. 2 is the concerned doctor who was heading the team of Surgeons while performing operation on the person of the patient Smt. Indrawati Sharma on both the occasions i.e. 26.9.1999 and 6.10.1999. A perusal of Annexure P-3 shows that opposite party No. 2 - Dr. V.K. Khosla is shown against the column "Surgeon". It was under his supervision that the first operation was abandoned on account of non-availability of the drill procedure. We have held above that it was a case of lapse, carelessness and negligence to the extent of not ensuring the availability of a proper and functional drill machine. In our considered view, it was for opposite party No. 2 - Dr. V.K. Khosla to ensure that all the instruments required in connection with the surgery to be performed for clipping the aneurysm of the patient with clippers were in proper order and were functional. In our considered view, the liability of Dr. V.K. Khosla for this lapse, carelessness and negligence is quite obvious and established.

So far as opposite party No. 3 - Dr. Gauri Joshi is concerned, she is not in any way concerned with the surgery that was performed on 26.9.1999 and there are no allegations against her for the abandonment of the surgery due to the non-availability of the drill procedure. The case of the complainants against the opposite party No. 3 is about her not taking due care and precaution on 8.10.1999 when the condition of the patient Smt. Indrawati Sharma deteriorated and she had difficulty in respiration. It has been deposed by the complainant No. 1 - Shri Devendra Kumar Sharma in his affidavit that the opposite party No. 3 - Dr. Gauri Joshi did not listen to him and did not summon the senior doctor to attend to the patient and on the other hand, she inserted a catheter in the mouth of the patient which caused considerable pain to her and she eventually died. We have already referred to the affidavit of Dr. Gauri Joshi in this regard. She has categorically mentioned in para 4 of her affidavit that she had inserted Endo-Tracheal tube in the windpipe of the deceased patient Smt. Indrawati Sharma on October 8, 1999 when she developed respiratory problems to enable her to breathe adequately. She categorically denied that the handling of the said Endo-Tracheal tube was in any way faulty and led to the death of the patient. She deposed further that the insertion of the aforesaid tube was the immediate remedy in such like situations to enable the patient to have free breathing. She further averred that she took all possible steps to provide emergent medical aid for the best interest and welfare of the patient. In the last para No. 5, she referred to the refusal of the complainant No. 1 - Shri Devendra Kumar Sharma for conducting a post mortem to ascertain the cause of death. Dr. Gauri Joshi was not cross-examined on behalf of the complainants. We find no valid reasons to disbelieve the statement of Dr. Gauri Joshi and consequently hold that there was no negligence, carelessness or lapse on the part of Dr. Gauri Joshi and she is not personally liable for any amount of compensation to be paid to the complainants.

THE complainants have claimed a sum of Rs. 15 lacs on account of the untimely death of Smt. Indrawati Sharma who was aged around 47 years and was running a boutique at Ludhiana from which she had an earning ranging between Rs. 4,000/- to Rs. 5,000/-. THE complainants spent a sum of more than Rs. 1 lac in treatment of Smt. Indrawati Sharma at P.G.I. and has filed Annexures regarding the payment made to P.G.I. and over the purchase of medicines which are Annexures P-5 to P-44. Since the complainants could not establish the aforesaid negligence and carelessness on the part of the opposite party Nos. 1 and 2 as being the cause for the death of Smt. Indrawati Sharma, the compensation cannot be determined on that ground. THE negligence and carelessness is to be determined only to the extent to which the opposite party Nos. 1 and 2 have been found liable. Upon careful consideration of the facts and circumstances of the case, we are of the considered opinion that a consolidated sum of Rs. 2 lacs would be adequate amount of compensation besides the costs of litigation which we quantify at Rs. 5,000/-. In view of the foregoing discussion, the complaint is allowed to the extent that a consolidated sum of Rs. 2 lacs [Rupees two Lacs only] as compensation for carelessness, negligence and deficiency in service at the time of the first operation and a sum of Rs. 5,000/- is awarded as litigation costs. The opposite party Nos. 1 and 2 are directed to pay the aforesaid amount of compensation and costs to the complainants within a period of two months from the date of receipt of this order, failing which the complainants would get interest on the amount of compensation @ 10% per annum till its realisation. The opposite party No. 3 - Dr. Gauri Joshi is not held liable to pay the said compensation and litigation costs and complaint against her is dismissed. Copies of this judgment be supplied to the parties free of charges. Complaint allowed.