GEETHA vs WOCKHARDT HOSPITAL

COMPLAINANT No. 1 is the wife and complainant Nos. 2 and 3 are the children of one Prakash Chintamani. They have filed this complainant for a direction to the opposite parties (for short "O.Ps") to pay a sum of Rs. 19,50,000 as compensation and for other reliefs.

THE case of the complainants is as follows: Prakash Chintamani (for short, the "patient") was referred to O.P.-1 Hospital as there were mild changes as found in the E.C.G. Report. Accordingly, the patient approached O.P.-1 Hospital on 1.8.1999. On that day, Dr. Uday Kanolkar examined the patient and advised immediate surgery and fixed the date of operation as 5.8.1999. On that day, the complainant was given to understand that he was required to pay Rs. 1,15,000 towards fee as a ''Package Deal'' and there will not be any change in the total cost of Rs. 1,15,000 and that the O.Ps would not charge any extra amount over and above the said package price. Being attracted by the said offer, the patient was admitted to the Hospital on 2.8.1999. On 5.8.1999, the patient was operated upon at about 8.00 a.m. by a team of Doctors headed by Dr. Vivek Javali. THE further case of the complainants is that Dr. Vivek Javali after the operation informed the brother of the patient that the surgery was successful. THEreafter, the patient was shifted to ICU. On 7.8.1999 at about 8.00 a.m., the patient was shifted from ICU to the Ward and the relatives of the patient were advised to give oral food. But the patient had developed severe cough and was not accepting the oral food. On 8.8.1999, the attending Doctors said that the condition of the patient was stable. On 9.8.1999, the condition of the patient became bad. THEre were no Senior Doctors and Specialists in O.P.-1 Hospital. THE said condition continued till the next day. On 10.8.1999, Dr. Kanolkar came to the Hospital at about 10.30 a.m. and said that he had gone to Hyderabad for two days. It is further averred that Dr. Kanolkar examined the patient and directed immediate shifting of the patient from the Ward to the ICU and, accordingly, the patient was shifted to ICU. Since the condition of the patient had become worse, the same was informed to Dr. Vivek Javali who in turn informed that needful would be done. On 13.8.1999, the patient was put on respirator. But, unfortunately, the patient died on 21.8.1999. The further case of the complainants is that no Senior Doctor of O.P.-1 Hospital had taken proper post-operative care and this has resulted in taking away the life of the patient. Further, though the complainants were required to pay Rs. 1,15,000 towards the fee under the package deal, the O.P.-1 Hospital has charged Rs. 2,40,963.80 contrary to the assurance given by O.P.-1 Hospital under the package deal. It is also the case of the complainants that O.P.-1 Hospital did not conduct the necessary pre-operative tests before the operation. On the above said facts the complainants have filed this complaint seeking for a direction to the O.Ps to pay a sum of Rs. 19,50,000 as compensation.

The O.Ps have filed their version. In the version they have narrated the infrastructure available in O.P.-1 Hospital and the qualification of the Doctors who are working therein. The O.Ps in their version have stated that whatever tests were required before conducting the "Coronary Artery Bypass Grafting" were conducted and there is no negligence in following the procedure in respect of the said operation. The O.Ps have also explained the steps taken and the procedure followed in conducting the said operation. The sum and substance of the version filed by the O.Ps is that there was no negligence on their part in conducting the operation.

AS far as the averments made by the complainants regarding the fee payable by the complainants are concerned, it is stated that so far as the package deal is concerned, the fee payable is Rs. 1,15,000. But the fee demanded by the O.Ps at Rs. 2,40,963.80 includes the charges which were not included in the package deal. It is stated that the complainants and their relatives paid a sum of Rs. 1,77,000 only and the remaining amount though was promised to be sent by the brother of the patient has not been paid. Therefore, the O.Ps have prayed for dismissal of the complaint stating that the complaint is frivolous and vexatious. Complainant No. 1 has filed an Affidavit by way of evidence and she was subjected to cross-examination by the O.Ps. The brother of the patient has also filed an Affidavit by way of evidence in support of the case of the complainants. The O.Ps have filed a joint Affidavit of one Mr. Vishal Bali, General Manager of O.P.-1 Hospital, Dr. Uday B. Khanolkar (O.P.-2) and Dr. Vivek Javali (O.P.-3) by way of evidence. The averments made in the Affidavits filed by the parties are the repetition of the averments made in the Complaint and the Version. Though O.P.-2 filed his Affidavit he has not been made available for cross-examination. However, O.P.-3 was subjected to cross-examination by the complainant. Both the parties have produced documents in support of their case and they are all marked as Exhibits, O.P.-1 Hospital has also produced the records maintained by it in the case of the patient. In addition to oral evidence, the O.Ps have also filed their written arguments.

ON the above said pleadings, the points that arise for consideration are: (1) Whether the complainants prove negligence as against the O.Ps? (2) Whether the complainants prove that the O.Ps are not entitled to collect anything more than the amount fixed under the package deal? (3) To what relief the complainants are entitled?

Point No. 1: The complainants in their complaint have alleged that O.P.-1 Hospital did not conduct the required tests such as: (1) Carotid Doppler Test, (2) Pulmonary Function Test, (3) Myocardial Perfusion Scan, (4) Thallium Perfusion Scan, (5) Glycolated Haemoglobin Test.

The O.Ps. in their evidence and arguments have stated that there was no need to conduct the above tests before conducting Coronary Artery Bypass Grafting. O.P.-3 has been cross-examined as R.W.-1. In his cross-examination he has stated that the above tests were not necessary in this case as pre-operative routine tests because the Surgeon is concerned with the immediate glycaemic control of the patient and not the happenings of last three months as denoted by the Glycosilated Haemoglobin, which is usually required by the Diabetologists for long term management. He has further stated that the patient was known diabetic and it is not necessary that the diabetic is co-related with critical carotid artery diseases. R.W.-1 in answer to the question as to whether because of non-conducting of the Carotid Doppler Test the patient suffered Cerebro Vascularthrombo Embolism, he has stated in the negative. He has further stated that the commonest cause of strokes post operatively after a by-pass surgery are embolic fragments from the altheroselrotic arota and small vessel disease in cerebrovascular system (intracranial). From the evidence of R.W.-1 it is seen that the above tests were not required before conducting Coronary Artery Bypass Grafting. What type of tests should be conducted prior to the operation is within the judgment of the concerned Doctor. In the instant case, the complainants have not produced any expert evidence to show that the tests referred to above were actually required before conducting the operation. Hence, we hold that the complainants have failed to prove that the tests referred to in the complaint ought to have been conducted before the operation. The evidence and the affidavit filed by the O.Ps explain the procedure that was followed in the case of the patient. After going through the procedure followed by the O.Ps, we feel that there is no negligence so far as the operation is concerned. The learned Counsel appearing for the complainants submitted that there is no negligence so far as the by-pass operation conducted by O.P.-3 is concerned. Hence, we hold that there is no negligence on the part of the O.Ps so far as the by-pass operation is concerned.

THE further case of the complainants is that O.P.-3 after the surgery informed the brother of the patient that the surgery was successful. If the surgery was successful, there was no scope for any further complications. If at all if there were any complications the same were necessarily due to lack of post-operative care after the surgery.

THE patient was advised to take oral food. But, according to the averments made in the complaint, the patient was not accepting oral food. On 8.8.1999, the attending Doctors said that the condition of the patient was stable. But on 9.8.1999, the condition of the patient became bad. THE further averment made in the complaint is that there were no Senior Doctors available to provide treatment when the condition of the patient was bad. Dr. Kanolkar appears to have examined the patient on 10.8.1999 and on examination he directed that the patient be shifted to ICU and, accordingly the patient was shifted to ICU. Though complainant No. 1 in her affidavit has stated that Dr. Kanolkar informed her that he was not in station for two days and he had been to Hyderabad, she has stated in her cross-examination that "it is not true that Dr. Kanolkar had gone out of station and he was on duty". No doubt, complainant No. 1 who is housewife and not well-versed with the worldly affairs might have stated so in a confused state of mind. THE positive case of the complainants in the complaint is that Dr. Kanolkar was not available to provide treatment when the condition of the patient was serious on 9.8.1999. Though Dr. Kanolkar is also one of the persons who has sworn to the affidavit along with other O.Ps he has not been made available for cross-examination. Assuming that Dr. Kanolkar was present at the time of providing treatment, there could not have been any complications, provided proper care was taken after the operation, since the surgery was successful. THE complainants have stated that the O.Ps promised that if the patient were to undergo the operation under the package deal he would be all right. But the O.Ps have not explained as to why the complications developed after the operation. Admittedly, the patient was a diabetic. THErefore, before operation the patient, O.P.-1 should have taken all possible care to see that no complications arose after the operation. In the instant case, the O.Ps have not explained what was the reason for development of further complications after the surgery. When such being the case, the death of the patient, in all probability, was due to not taking proper post-operative care by the O.Ps. Further, we are of the view that if the required post-operative was taken, in all probability, the patient would not have died, since the surgery was successful even according to the Doctor who operated the patient. THErefore, we are of the considered view that there is negligence on the part of the O.Ps in not taking proper post-operative care. Hence, we answer point No. 1 in the affirmative. Point No. 2: It is not in dispute that under the package Deal, the complainants were required to pay Rs. 1,15,000 towards the fee payable. According to the complainants, the O.Ps. have promised before admitting the patient that there was no need for the patient to pay anything more than the fee fixed under the package deal. This particular averment of the complainants is not specifically denied by the O.Ps in their version. The O.Ps. in their version have stated what are all the charges included and what are not included in the package fee. The complainants have also produced a list of rates specified by the package fee, which is marked as Exhibits ''R-84'' and ''R-85''. It is not known whether the rate list of package deal was furnished to the patient or his relatives. No doubt certain charges are not included in the package fee. But the very object of offering package deal is to collect the fee payable by the patient from the date of admission till the date of discharge. The Bill prepared by the O.Ps. has also been produced as Exhibit ''R-86''. The complainants have also produced the said Bill as Annexure ''C-8''. According to the rates specified as per Exhibits ''R-84'' and ''R-85'', the number of days to be stayed is stated as 5 (1+1). But, in the written arguments, the O.Ps. have mentioned the number of days to be stayed in the hospital as 6+2 - 8 days. This is inconsistent with the price mentioned in Exhibits ''R-84'' and ''R-85''. When once the O.Ps. had collected the entire fee under the package deal, there was no reason for them to charge anything more on any other item. The very object of introducing package deal is to see that treatment is given for a particular disease from the day one till the discharge of the patient. In the instant case, it is not so. The complainants have stated that the O.Ps. have demanded a sum of Rs. 2,40,963.80. But they have not produced any evidence to show that they have paid the entire amount as demanded by the O.Ps. However, the O.Ps. in their evidence have admitted that the complainants and the relatives of the patient have paid Rs. 1,77,000. This appears to be because the patient was kept in the ICU for more number of days than the required days in the normal course. The patient was kept in the ICU and also has been treated for more number of days than what was required under the package deal and this was because of the complications which developed due to lack of post-operative care after the surgery. For this the patient cannot be blamed. therefore, the O.Ps. ought not to have collected anything more than the package fee payable under the package deal. When once the O.Ps. have fixed the package fee under the package deal, they ought to have provided treatment by putting their best efforts to save the patient from the day the patient was admitted till he was discharged or died. As stated earlier, the O.Ps. have informed the patient and the complainants that the patient was required to pay Rs. 1,15,000 only and they would not charge any extra amount over and above the said package price. Therefore, they ought not to have collected anything more than the package fee. The amount collected by the O.Ps. in excess of the package fee is illegal and this amounts to "Unfair Trade Tactics". Hence, point No. 2 is also answered in the affirmative. Point No. 3:

The patient died leaving behind his wife and two children. According to the averments made in the complaint, the patient was a B.Sc. Graduate with a diploma in pharmacy and he was doing Pharmaceutical Retail Business. Taking into consideration the business of the patient and the age of the legal representatives and also in view of the fact that the O.Ps. have collected more amount from the complainants than what was required to be collected under the package fee, we are of the view that awarding a sum of Rs. 1,50,000 as compensation in favour of the complainants would meet the ends of justice.

IN the result, we pass the following order: (1) The complaint is allowed in part. (2) The O.Ps. are directed to pay jointly and severally Rs. 1,50,000 (Rupees one lakh fifty thousand only) to the complainants with interest at 9% (nine percent) per annum from the date of the complaint till realization. (3) The O.Ps. are also directed to pay Rs. 5,000 (Rupees five thousand only) jointly and severally to the complainants towards the costs of these proceedings.

Complaint partly allowed.