PUSHPA BHATNAGAR & 2 ORS. vs M/S. VARUN HOSPITAL & 2 ORS.

Smt. Pushpa Bhatnagar, the complainant/appellant, filed this first appeal under Section 19 of the Consumer Protection Act, 1986 against the order dated 16-10-2014 passed by Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred as State Commission) in Complaint Case No.71 of 2003.

Mr. Jaiprakash Bhatnagar, an advocate by profession since deceased (hereinafter referred as the "patient"), on the evening of 17.01.2002, sustained fracture of upper arm near shoulder and took treatment in the nearby Ortho Care Centre. In the evening of 19.1.2002, he was admitted in Varun Hospital i.e. OP1 under care of Dr. K.K. Singh (OP3), an orthopaedic surgeon. Without performing any pre-operative examination, the anaesthetist Dr. Sanjay Bhargava (OP-2) fixed the operation on the next day morning. Accordingly, on 20-01-2002 at 6:30 A.M. the patient was taken to operation theatre, OP2 and OP3 performed the operation. At about 10 A.M., the OP-doctors came out of OT and informed the patient''s relatives that operation was successful at 9:15 A.M and patient will come out soon. Thereafter, at 10:45 A.M. the OP 2 and 3 came out and first time informed the complainants and the other relatives that the patient expired due to heart attack in OT. Dr. Ajay Singhal, a cardiologist was called, it took almost 30 minutes, thereafter, the patient passed away. The post-mortem was conducted. At 11.00 A.M. the complainant-1, Smt Pushpa Bhatnagar ( wife of deceased) lodged a FIR under Section 304A, IPC against the OP for causing death due to negligence. Thereafter, in 2003, the complainants filed complaint before the State Commission.

The State Commission dismissed the complaint. Therefore, aggrieved by the impugned order the complainants preferred this first appeal.

We have heard the learned counsel for the parties. Counsel for complainants, Mr. Partha Sil, vehemently argued that, it was the OT death due to gross negligence of OP2 and 3. The anaesthetist (OP2) did not conduct any pre-anaesthetic check-up, patient''s weight, obesity etc. The clinical and preoperative assessment details are not maintained. Therefore, it was negligence. The patient was obese, it is evident from post-mortem report that mentioned as "fatty and heavily built appearance". As the patient was around 45 years of age, ECG is a mandatory test, but the OP-3 failed to do the ECG in this case. The OP-3 had not assessed intubation difficulties and not followed ASA guidelines. The counsel for the complainant further argued that, forged lab reports are annexed and to improve their case, for the first time, in the affidavit of evidence, both the OPs have come up with a plea that pre-operative tests were conducted on the patient.

The rival argument on behalf of OPs was that, the patient sustained minor fracture injury. All the pre-operative investigations were performed like blood sugar and routine tests. It was not a major operation, therefore, anaesthesia was not given, and it was done under muscle relaxation, injection Norcurone. As there was no past history of any cardiac disease, therefore, ECG was not

advised. The operation theatre is well equipped having cardiac monitors, anaesthesia unit, Medisys Medivent Servo Ventilator. The counsel further submits that, Dr.Ajay Singhal''s letter is more relevant in absence of medical records. He further submitted that , the notes were prepared by the nurses, therefore, the statement of nurses may be of vital importance. Counsel relied upon medical text books like Lee''s Synopsis of Anaesthesia, Davidson''s Principles and Practice of Medicine and Medico Legal Aspects of Death articles.

We have requisitioned the file from the State Commission and also perused the medical record. It should be borne in mind that, it was a planned surgery, and not an emergency. Therefore, as a standard of practice, it was the duty of anaesthetist to perform pre-anaesthetic check up. As per the Vershey laboratory reports, routine blood investigations were performed. There is no record pertaining to ASA grading, weight, BMI, intubation difficulties etc. No postoperative details mentioned.

The operative notes by ortho surgeon Dr. K. K. Singh, as below: Treatment 20.01.2002. Patient was given G.A. (General Anaesthesia) at 6.30 A.M. in the form of oxygen, nitrous oxide and muscle relaxant. Throughout operation pulse oxygenation was 98% patient was extubated at 9.15 A.M. with oxygenation 98%. Patient was given oxygen for 5 minutes thereafter. Patient was obeying oral commands. Operative Notes:

Three fragment fracture with Anterior dislocation of head of humerus was approached through Anterior Deltopectoral splitting approach. Anterior origin of Deltoid from Clavicle detached and lower and delivered out of wound. Coraoacromial ligament was divided capsule divided Anterior and head manipulated with shane screw, screwed in head. Dislocation reduced & fragment approximated and fix by Stainless Steel wire by tension band ligature. Three compression screws cancellous 4 m.m. passed to achieve inter fragmentary compression closure done in layers U slab given."

It is pertinent to note that the patient developed cardiac arrest at 9:45 A.M. while sitting, after recovery, during the resuscitation, patient re-intubated, put on 100% oxygen, given adrenaline intra cardiac, injection Efcorlin was given. But patient died at 10:15 A.M.

We have perused the expert opinion given by Dr. Vineet Sharma. It was taken, after direction from the State Commission. It discussed about necessity of ECG and pre-operative assessment. The relevant extract from expert opinion is reproduced as below: "ECG is essential in cases of patients with history of cardiac disease and cardiac symptoms such as angina, chest pain, dysponea. The age at which ECG is routinely done is quite controversial though it is routinely recommended in patients above 50 years of age even if there are no symptoms of cardiac disease. Echocardiography is only indicated in special circumstances such as old MI, CHF, Cardiomyopathy or patient is giving history of any pre-existing cardiac disease."

We have gone through the relevant extract from the book on Anesthesia by Ronald D. Miller. It is stated that Goldberger and O''Konski concluded that the risk of obtaining a preoperative ECG and subsequent reactions probably exceeds its benefit if patients are asymptomatic, do not have important risk factors for coronary disease and are under 45(men) or 55 (women) years of age. An expert panel of the Americal Medical Association though that a routine preoperative ECG was desirable in most middle aged surgical patients but failed to agree on a definition of middle age. Some members thought they should be performed in men over the age of 30 and women over the ages of 40. Others thought there was no need until the ages of 50 and 55 respectively.

The role of anaesthetists before surgery is stated as follows:

System Features of Interest

General Nutritional state, fluid balance, condition of the skin and mucous membranes (anaemia, perfusion, jaundice)Temperature

Cardiovascular Peripheral pulse (rate, rhythm, volume) Jugular venous pressure and pulsation Arterial pressure Heart sounds, Carotid bruits, dependent oedema Respiratory Central Vs. peripheral cyanosis observation of dyspnoea Ausculatation of lung fields Airway Mouth opening, neck movements Thyro-mental distance, Dentition?

Regarding airway management, the preoperative evaluation is essential. The obese patient should be evaluated in thorough non-judgmental fashion with particular emphasis on the difficulty that obese presents to anaesthetist to assess the cardiac function, ECG and X-Ray chest should be scrutinised for evidence is ischemic heart disease, LV for RV hypertrophy. Physical examination of the patient should include the Mallampati classification, based on an ability to visualize the uvula may help identify those with potentially difficult laryngeal visualization or consultation with an otolaryagologist for a specialized workup may help delineate airway difficulties preoperatively.

According to Wylie and Churchill-Davidson''s book on "A Practice of Anaesthesia," Under Chapter 29, " Preoperative Assessment and Premedication for Adults" that; The goals of preoperative medical assessments are to improve patient outcome, to reduce patients'' anxiety by acquainting them with their doctors and by explaining procedures and protocols; and to obtain informed consent. Medical assessments enable physicians to reduce morbidity by optimizing health status and planning preoperative management. Because perioperative morbidity and mortality increase with the severity of pre-existing disease, careful evaluation and treatment should reduce their occurrence. Consequently, patients would benefit from a reliable method of preoperative assessment by which laboratory tests could be selected. Although laboratory screening tests can aid in optimizing a patient''s preoperative condition once a disease is suspected or diagnosed, they have several shortcomings; they frequently fail to uncover pathological conditions; the abnormalities they detect do not necessarily affect patient care or outcome; and they are inefficient in screening for asymptomatic diseases. Finally, most abnormalities discovered on preoperative screening, or even on admission screening for non-surgical purposes are not recorded (other than in the laboratory report) or appropriately pursued.

The history and physical examination done accurately indicate all areas in which subsequent laboratory testing proves beneficial to patients.

In this context, the counsel for complainant, relied upon the cases Suresh Nanda Vs. Dr. Anoop Kumar , II (2012) CPJ 228 (NC), the Paras''14 and 20 of the judgment are reproduced as hereunder: "14. Thus, on consideration of the evidence and material brought on record and the submissions put forth on behalf of the parties, this Commission has no hesitation in holding that the opposite party has failed to establish on record that the pre-operative test which were necessary to decide the fitness of the patient for undergoing such a major surgery were actually conducted. This omission, in our opinion, is a glaring act of deficiency in service on the part of the respondent-doctor. Non-production of the ECG report on record also raises a great doubt and adverse presumption is liable to be drawn against the opposite party, in particular due to the fact that soon after the surgery, serious cardiac complication developed which could not be successfully managed and the patient died of that complication.

The anesthetic agent and its quantity used to induce the patient to general anaesthesia are not at all mentioned.

Under the relevant directions of the Medical Council of India and as a matter of standard medical protocol, all such parameters are usually recorded in tabulated / graphical form

which are termed as otes of anaesthesiawhich as per the opposite party urgeon have not been kept in this case. Keeping no record / note of these important aspects, even if for the sake of argument it is assumed that an anaesthesiologist was present and had inducted the patient to general anaesthesia, is a glaring omission on the part of the operating surgeon. These omissions assume much greater importance and consequence because the patient landed in severe and fatal cardiac complications shortly after the procedure even if we believe the plea of the opposite party doctor."

Considering the entirety and the references from medical books, we are of considered view that, the OP2 failed to do Standard Pre-anaesthetic assessment, administered medicines, without taking allergy-test. Thus due to lack of proper pre-operative assessment, the patient passed away. There is no record that neither Physician nor anaesthetist certified the patient fit for surgery; but the OP-3 performed surgery. It is very important for the treating doctor to properly document the management of a patient under his care. Medical record keeping has evolved into a science of itself. This will be the only way for the doctor to prove that the treatment was carried out properly. Thus, "Poor records mean poor defense, no records mean, no defense" .

The OPs filed a criminal revision before Hon''ble High Court of Allahabad and the proceedings were stayed. The investigation officer recorded statement of Dr. Nagendra Prasad Sharma, a Senior Anethetist, Dr. S. R. P. Mishra, Senior Surgeon and Dr. D. D. Bhardwaj, a medical officer that there was no excess dose of anaesthesia or Norcurune (muscle relaxant). The post-mortem report is not conclusive for the cause of death and visera report do not show that any chemical poison was noted. In our view, it will not absolve the negligence of OP doctors.

For determining the quantum of compensation, recently in Balram Prasad Vs. Kunal Shah and Ors . (2014) 1 SCC 384, the Honble Supreme Court has again emphasized that, " it is the duty of the Tribunals, Commissions and the Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation."

Therefore, to arrive at proper quantum of compensation, we need to consider several factors. In this case, complainants had prayed for a total compensation of Rs. 45 Lacs. It is true that, deceased left behind his family consisting of old father, wife and two children. Therefore, the loss cannot be measured in monetary terms alone. Although the deceased, was a practicing lawyer, having good earnings, yet, unfortunately, no cogent material has been produced on record to prove the monthly income of the deceased, which makes our task more difficult to decide compensation. Hence, we would like to take reference from Income Tax Slabs for Individuals for the Financial Year 2000-2001 and Assessment Year 2001-2002, as the income below Rs.50,000/- was not taxable. Therefore, average yearly income of Rs.48,000/- for an advocate is just and proper in this case. The deceased Jai Prakash was 45 years of age. I f we consider that, he would have been in active legal practice up to the age of 70 years, i.e. another 25 more years, he would have earned about Rs. 12 lacs. The prospective income, after deducting 1/3 towards his expenses; will be Rs.8 lacs Therefore, we take the basis of apportioning for inflation, as observed by the Bench consisting of Hon''ble Mr. Justice Jagdish Singh Khehar and

Hon''ble Mr. Justice S.A. Bobde in the case of V.Krishna Kumar Vs. State of Tamil Nadu & Ors. JT 2015 (6) SC. Therefore, we apply the same formula to compute the required Future Value is; FV = PV x (1+r) ; it will be 11,54,188.79/- rounded to 11,55000/- n { PV - Present Value= 9,00,000/- ( 36,000x25), r - rate of return = 1%, n - time period = 25}

At the instance, we do not want to ignore that, this complaint was filed almost more than a decade back, the family suffered distress and mental agony, therefore, we award compensation in the sum of Rs.2,00000/- and Rs.25,000/- towards cost of litigation. Therefore, the total compensation will be Rs.13,80,000/-. For the reasons stated herein above, we direct the OPs(1,2 and 3) pay Rs.13,80,000/- to the complainants, jointly and severally, within 2 months from the date of receipt of this order, failing which, entire amount will carry the interest @ 10 % per annum from today i.e. date of pronouncement, till its realisation.