R P Bhola vs V K Mehta

THE case of the complainant is that Dr. (Mrs.) V.K. Bhola, who was wife of complainant No. l Dr. R.P. Bhola and mother of complainant Nos. 2 to 4, had pain in the abdomen on 5.8.1999. Dr. R.P. Bhola and his late wife Dr. (Mrs.) V.K. Bhola consulted OP-1 Dr. V.K. Mehta at his clinic OP-5 and they were informed that Dr. (Mrs.) V.K. Bhola had stones in the gal bladder. Dr. V.K. Mehta, without taking ultrasound of abdomen of Dr. (Mrs.) V.K. Bhola came to the conclusion that she had stones in the gal bladder. This conclusion was arrived at in a great haste. It has been contended that Dr. V.K. Mehta assured and allured them that OPs 5 and 6 were duly recognised and registered with Government authorities and that the operation theatre of OP-5 was well equipped with all necessary equipments and life saving methods required in case of emergency. He was also informed that the operation would hardly take half an hour and there will be hardly one or two cuts in the body as is the case in laproscopic operations. Dr. V.K. Mehta demanded an amount of Rs. 20,000 as advance payment, which was arranged by Dr. R.P. Bhola and was given to Dr. V.K. Mehta. However, no receipt was issued on the pretext that the accountant had left and Dr. V.K. Mehta assured that the receipt would be issued on 6.8.2000.

ON 6.8.1999 Dr. (Mrs.) V.K. Bhola entertained certain doubts and was to get the operation postponed but OPs 1 to 4 somehow assured and allured Dr. (Mrs.) V.K. Bhola and took her to the operation theatre. She was not permitted to given even a second thought. The opposite parties did not even wait to take consent of Dr. R.P. Bhola or consent of Dr. (Mrs.) V.K. Bhola for operation. Dr. Bhola went to the clinic OP-5 as Dr. (Mrs.) V.K. Bhola had not returned and was shocked to know that the OPs 1 to 4 were conducting laproscopic operation on her. Dr. R.P. Bhola noticed Dr. V.K. Mehta coming out of operation theatre two or three times and he telephoned various persons including agency who supplied oxygen which shows the non-availability of life saving items like oxygen in the operation theatre. The operation took considerable time and at about 12.00 noon OPs 1 to 4 came out of the operation theatre and informed Dr. R.P. Bhola that Dr. (Mrs.) V.K. Bhola had expired during the operation. Dr. V.K. Mehta, in great haste took the dead body of late Dr. (Mrs.) V.K. Bhola in his car and threw it at the place of the complainant. No papers/documents were given by the opposite parties to the complainants in respect of the operation. In fact, no document was prepared prior to the operation or during the operation. After the cremation and completion of necessary rituals Dr. R.P. Bhola met Dr. V.K. Mehta and was shocked to know that the opposite parties had not prepared any document nor had kept any record and informed him that the records would be got prepared from OP-2 Dr. M.S. Lathar. On 18.8.1999 OPs delivered a few papers to the complainants which appeared to be cooked up, concocted and manipulated to save the skin of the opposite parties. The documents handed over to the complainants did not bear the signatures of OP-3 Dr. Neeraj Aggarwal and OP-4 Dr. S.K. Chhabra, who had conducted the operation. All the papers were signed by Dr. V.K. Mehta alone. According to the complainants, pre and post operation conduct of the opposite parties confirmed that there was negligence in the operation of Dr. (Mrs.) V.K. Bhola, which resulted in her untimely death.

THE complainant had filed complaint with the police and thereafter a complaint case was filed against OPs 1 to 4 in the Court of A.C.M.M., Patiala House, New Delhi under Sections 304, 120, 165, 468, 470 and 471 of IPC. It is alleged that the operation was conducted without fulfilling the requisite formalities, without carrying out requisite and proper tests or ultrasound and no proper anaesthetic tests were done by competent Anaesthetist which should have been done before operation is conducted. The cause of death was stated to be cardiac arrest with respiratory failure but no specialist was called to deal with cardiac arrest and respiratory failure. According to the complainants, there was no cardiac arrest and respiratory failure, as the deceased has no sign of any such problem. It is further stated by the complainants that the OPs injected a drenaline in the heart to revive it which process has been banned since long and long research has proved that the patient should be taken on ventilator or defibrillator in such conditions which was not tried in the case of Dr. (Mrs.) V.K. Bhola. It is also pointed out that the monitor does not go off instantly as alleged by the opposite parties, but continues for 3-4 minutes and during this period the patient could be revived. Therefore, according to the complainants Dr. (Mrs.) V.K. Bhola died due to lack of experience and negligence of the opposite parties as they failed to carry out the operation properly. It is also stated that certain drugs like Lasix, Deriphyline and Dexa Methasone were given but there was no explanation as to why they were given and what was their effect. It is specifically contended that no post-mortem was advised by the OPs and this fact has been written in the operation notes afterwards.

DR. (Mrs.) V.K. Bhola was Obstretion and Gynaecologist and was getting pension of Rs. 9,100 per month. After retirement she started practicing and was earning on an average of Rs. 50,000 per month. Thus, her income was around Rs. 7 lakh per year. She was 54 years old. Her father died at the age of 70 years and mother at the age of 68 years and looking into longevity of life in the family, she would have lived upto the age of 70 years. According to the complainants, the compensation would come to Rs. 98 lakh (Rs.7 lakh x 14 years) but the complainants are claiming only a sum of Rs. 50 lakhs. For pain and agony suffered by the complainants, compensation of Rs. 10 lakh is claimed besides Rs. 20,000 paid for the operation. The compensation is claimed with 18% interest.

THE opposite party Nos. 1, 5 and 6 have in their reply stated that the complainants are not consumer since no amount was charged by them for the operation and the operation was performed on obligatory basis for which nothing was charged by opposite parties towards professional fee or hospital charges. Dr. R.P. Bhola and his wife had approached Dr. V.K. Mittal on 5.8.1999 as known diagnosed case of chronic cholechystitis with cholelithiasis since 3 to 5 years and hypertension on hypertensive treatment since five years with ultrasonography (USG-Abdomen) report with complaint of increasing tendency/frequency of right hypochondrial pain. Dr. V.K. Mehta examine Dr. (Mrs.) V.K. Bhola clinically, investigated with the help of ultrasonography (USG-Abdomen) afresh and diagnosed it to be a case not only of the ailment referred to above but also of distended gal bladder. The entire case was discussed with R.P. Bhola and his wife, who was to be operated and it was decided to go for surgical treatment in the form of laproscopic removal of deceased part of gal bladder as early as possible. The case was also discussed with Dr. Neeraj Aggarwal. Verbal consent for operation was taken and surgery was fixed on 6.8.1999. OP-2 Dr. M.S. Lathar was informed for pre-aesthetic check up and physician clearance, induction of anaesthesia during surgery and for essential investigations which were necessary for PAC were complied on the same date of examination. Dr. S.K. Chhabra OP-4 was inducted in the team on obligatory basis as Assistant Surgeon.

DR. (Mrs.) V.K. Bhola and R.P. Bhola reached OP-5 clinic at 7.00 a.m. on 6.8.1999. PAC, physical clearance, fitness for surgical treatment and anaesthesia as well as written consent was taken before taking Dr. (Mrs.) V.K. Bhola to operation theatre where all necessary equipments were available details of which are given in the reply. It is specifically pleaded that Dr. V.K. Mehta and Dr. R.P. Bhola, husband of the deceased supervised all the procedure; OPs-3 and 4 Dr. Neeraj Aggarwal and Dr. S.K. Chhabra were Surgeon, and Assistant Surgeon respectively. The manner in which the surgical procedure was done has been detailed in the reply. According to Dr. V.K. Mehta, the patient came out from effect of general anaesthesia and started responding/obeying verbal commands including sensory and motor reflexes and was to be shifted to the room but suddenly there was change in cardiac monitor beep pattern and flat ECG-Pattern were noticed. The patient had developed cardiac arrest (cardiac stand still with respiratory failure) and all possible requisite steps were taken to safeguard the life of the patient in the form of cardio pulmonary resussiecitation and a Cardiologist was also called but the patient could not be saved. According to Dr. V.K. Mehta, Dr. R.P. Bhola was present during the operation in the operation theatre and had witnessed and supervised operation and was satisfied that there was no negligence. The dead body of Dr. (Mrs.) V.K. Bhola was shifted as per direction of Dr. R.P. Bhola only after preparing detailed treatment records in original and photocopy of the same was given to Dr. R.P. Bhola. It is urged that the operation was performed as per prescribed norms, after proper examination, investigation and diagnosis and there has been no negligence. The hospital was equipped with all necessary emergency equipments including oxygen cylinder. The allegations of undue haste have been denied. Dr. V.K. Mehta has given his qualifications in the reply. Dr. R.P. Bhola was present during pre-operative and post-operation period. It is specifically pleaded that OPs 1 to 4 had advised Dr. R.P. Bhola to go for medico legal autopsy if he had any doubts but Dr. Bhola had declined to go for autopsy. Dr. R.P. Bhola requested to arrange for ambulance and shift Dr. (Mrs.) V.K. Bhola to AIIMS for donation of eyes and the ambulance was accordingly provided. In respect of registration it is stated that there was no registration as required from DHS, Government of NCT, Delhi but the registration had already been applied and was pending. The allegation relating to asking for oxygen cylinder on phone has been denied.

OPPOSITE party Nos. 2, 3 and 4 have filed separate written statement but the stand taken by them is more or less same as the one taken by Dr. V.K. Mehta in his reply.

THE complainants have filed rejoinder to the reply by opposite parties in which stand taken in the complaint has been reiterated and the stand taken by the opposite parties in their reply has been disputed.

AFFIDAVIT evidence has been filed by Dr. R.P. Bhola. Affidavit evidence has also been filed by Dr. V.K. Mehta, Dr. M.S. Lathar, Dr. Neeraj Aggarwal and Dr. S.K. Chhabra. Dr. R.P. Bhola was cross-examined by the opposite parties. Likewise Dr. V.K. Mehta, Dr. M.S. Lathar, Dr. Neeraj Aggarwal and Dr. S.K. Chhabra were cross examined by the Counsel for the complainants.

WRITTEN arguments have been filed by Counsel for the parties and Counsel for the parties were also orally heard.

WE have considered the submissions made before us and have gone through the record.

THE opposite parties have raised preliminary objection that the complainants are not consumer inasmuch as no fee was charged from Dr. R.P. Bhola and the operation was performed on obligatory basis. According to them, deceased and her husband pertain to common friend circle/group and as such no fee was charged. Besides this, the parties are from the same profession and normally fee is not charged from a co-professional from the same branch. In addition, the complainants have failed to produce any receipt of payment to the opposite parties. The stand of the complainants that fee of Rs. 20,000 was paid in advance on a day prior to the operation, cannot be accepted. All the four opposite parties Drs. have confirmed that no fee was received by them and the operation was performed on obligatory basis for which no professional fee or hospital charges were taken. Keeping in view the judgment of the Apex Court in Indian Medical Association v. V.P. Shanta and Others, III (1995) CPJ 1 (SC)=I (1996) CLT 81 (SC)=1995 (6) SCC 651, it is held that the complainants are not consumer within the definition of Section 2(1)(d) of the Consumer Protection Act, 1986. Accordingly, the complaint is liable to be dismissed on this count alone.

ON merits, it has been urged on behalf of the complainants that the deceased was forced to undergo the operation and was taken to operation theatre without her valid consent. Admittedly complainant Dr. R.P. Bhola and his wife Dr. (Mrs.) V.K. Bhola had consulted Dr. V.K. Mehta on 5.8.1999 in connection with pain in the abdomen and on clinical examination as well as afresh ultrasonography it was diagnosed to be a case of chronic cholechystitis as also distended gal bladder. According to Dr. V.K. Mehta, Dr. R.P. Bhola and his wife had also shown to him previous ultrasonography report and after getting verbal consent for surgical operation, surgery was fixed on the next date. According to Dr. R.P. Bhola on the next day only Dr. (Mrs.) V.K. Bhola had gone to the clinic of Dr. V.K. Mehta since she wanted to clear certain doubts, but she was allured to undergo the operation and was not even permitted to give second thought. As against this version of the complainants, all the four opposite partieshave stated that complainant No. l along with his deceased wife Dr. (Mrs.) V.K. Bhola had reached opposite party No. l clinic on 6.8.1999 at about 7.00 a.m. At that time written consent was taken before shifting the deceased to operation theatre where all necessary equipments were available, details of which are given in the reply filed by the opposite parties. In respect of consent, the opposite parties have filed authorisation for operation, which is at page 342 of the record. Dr. Niraj Aggarwal OP No. 3 and Dr. M.S. Lathar in their cross examination have stated that deceased had given consent. In this connection it is urged by the learned Counsel for the complainants that this document is a forged document in respect of which charge sheet has been filed against opposite party No. l Dr. V.K. Mehta for forgery in the criminal Court. No opinion of the handwriting expert has been annexed by the complainants. Besides this, complainant No. l and his wife both are Doctors and had discussed the ailment of the deceased with Dr. V.K. Mehta on 5.8.1999 after which the operation was fixed on the next date. On the next day complainant Dr. R.P. Bhola and his deceased wife came for operation at 7.00 a.m. According to the opposite parties Nos. 1 to 4, Dr. R.P. Bhola was present throughout in the operation theatre and had taken part in the pre-operative and post-operative treatment of the deceased. In view of this the consent for the surgical procedure was certainly there on the part of complainant Dr. R.P. Bhola and his deceased wife, who being Doctors had agreed for the operation. The stand of the complainant that the opposite parties allured deceased Dr. (Mrs.) V.K. Bhola to undergo operation cannot be accepted. Therefore, in the context nothing turns out on the issue of consent raised by the complainants.

THE grievance of the complainants is that the operation was done without even conducting ultrasound of abdomen or without conducting the required tests necessary for the purpose of operation. In this connection, the opposite parties Nos. 1 to 4 have stated that fresh ultrasound was done and necessary tests were carried out. The examination record dated 5.8.2000 shows that blood test (HB, TLC, DLC, BT, CT, Blood Sugar, S. Bilirubin ECG, Unit R/E) were advised and were done. Pre anaesthetic clearance was conducted at 7.15 a.m. Results of investigation and pre-anaesthetic check is recorded on back side of page 342. The case was seen by Dr. Neeraj Aggarwal and Dr. S.K. Chhabra on the ultrasound machine also and all the tests were normal. Therefore, the contention of the complainants that neither ultrasound was done nor requisite tests were performed is not correct. Pre-anaesthetic check record bears the signature of Dr. M.S. Lathar OP-2.

ANOTHER grievance of the complainants is that inadequate dose of Thiopentonesodium was administered to the deceased which must have developed serious complications in the respiratory system leading to her death. However, in support of this contention there is no material to sustain the same that because of inadequate dose of Thiopentonesodium the patient must have developed serious complications in respiratory system leading to her death.

THE complainants have also relied upon the opinion of Medical Board of AIIMS dated 25.4.2000 that in the anaesthetic records certain facts remained unexplained; there is no mention of intracardiac adrenaline being given which is not recommended route now a days and there is no mention of repeat adrenaline even if it was given intracardiac; it is not clear from the operation notes why three drugs, namely, Lasix, Deriphyline and Dexamethasone have been given intraoperatively when it is mentioned that operation was uneventful; and it is not clear from the operation notes whether patient suffered any time ventricular fibrillation and whether defibrillator was available and it was used or not; and the opinion as to cause of death could not be given in absence of post-mortem report. In this connection clarification was given by Dr. M.S. Lathar vide letter dated 10.6.2000 to the Investigating Officer which is at page 305 of the record. The clarifications given are as under: "(a) Intracardiac adrenaline tartarate has given as laid down therapeutically thrice at intervals of 5 minutes. Through mentioned in notes only intracardiac adrenaline but it may understandably be reconciled. It is submitted that under pressuring situation of life saving procedure earlier accepted measures may be fruitful, hence adrenaline intracardiac as accepted to be given in a standstill heart following cardiac arrest was given. (b) At 0905 a.m. during controlled ventilation, some secretory sounds were heard. Auscultation revealed secretory sounds. Bronchial suction was done and thick viscid mucous was sucked out. The chest was clear. As a save guard to Bronchospasm, possible fluid overload in a obese hypertensive in laparoscopic procedure involving possible physiological changes due to inter abdominal pressure changes, Inj. Deriphylline lasix and dexamethasone was given. There was no-recurrence of possible Bronchospasm or secretion in airway, hence the anaesthesia course was smooth. (c) The patient was on cardiac monitor all through and these was no verticular fibrillation at any stage. The Nursing Home has its own Defibrillator and was readily available in the OT and was used on the patient as one of the resuscitative measures."

THE explanation of Dr. M.S. Lathar OP-2 was forwarded by the Investigating Officer to the Medical Board of AIIMS and the Medical Board sent reply vide letter dated 12.9.2000 to the Investigating Officer, which is at page 357 of the record. The explanation given by Dr. M.S. Lathar was found acceptable in the given circumstances and in view of the above explanation no prima facie negligence was observed on this account.

THE matter was also taken up by the complainant Dr. R.P. Bhola with the Delhi Medical Council in which it is stated that the cause of death could not be ascertained on the basis of information available from the documents on record and examination of Doctors who treated the deceased since no post-mortem was done in this case. It has been stated therein that there was no obvious case of negligence. The post-mortem should have been advised as the death occurred suddenly under unexplained circumstances. It is pertinent to note that Dr. R.P. Bhola was associated and present during pre-operative and post-operative period and if anything was hidden by the opposite parties or remained unexplained, the same could very well be explained even by Dr. R.P. Bhola as also the circumstances pointing out medical negligence on the part of the opposite parties leading to the death of his wife.

ALL the opposite parties have stated that they had suggested to Dr. R.K. Bhola to get post-mortem done, but the complainant Dr. R.P. Bhola declined. If the stand taken by Dr. Bhola is accepted that as to say that the deceased was allured to undergo operation and was not given second thought and even consent was not taken for the operation and that oxygen and other necessary equipments were not available, then in such a situation he would have insisted for post-mortem of the deceased. The fact that he did not insist for the post-mortem of the deceased would itself go to show that the stand taken by Dr. R.P. Bhola is completely an afterthought. In such circumstances even a normal ordinary person would have asked for post-mortem and it would be more so in the case of a Doctor who has made all sort of allegations against the opposite parties.

THE complainants have also raised issued of non-availability of the oxygen cylinder and the non-registration of the clinic in question. All the four Doctors OPs 1 to 4 have confirmed that the oxygen cylinder was available and all necessary equipments including ventilator were there. On the question of registration it has been submitted that the registration had been applied for and was subsequently granted.

THE allegation of the complainants that no papers/documents or operation notes were furnished to the complainant is also not proved. The opposite parties have categorically stated that photocopies of the documents were furnished to complainant R.P. Bhola.

THE complainants have even levelled allegation that OP-1 Dr. V.K. Mehta took the dead body of late Dr. (Mrs.) V.K. Bhola in his Car and threw it at the place of the complainant which is not proved. On the contrary, there is evidence on record that ambulance was provided by the opposite party clinic for taking the dead body of the deceased from the hospital to AIIMS for the purpose of donating eyes. The stand of the complainant Dr. R. P. Bhola in the complaint suffers from serious infirmity and has not been substantiated by any cogent evidence or material and many of the allegations made in the complaint are not found to be correct.

IT is pertinent to note at this stage that in the complaint made by Dr. R.P. Bhola on 18.8.1999, S.H.O., Malvia Nagar Police Station no specific allegation of medical negligence as such was made nor that he was not supplied necessary documents by the opposite parties. The only allegation made therein was that the clinic is not recognised by Delhi Administration, the consent had not been signed, clinic was not fully equipped for operation and revival facilities were not available. It is only subsequently that in the F.I.R. of 20th September, 1999 it was alleged that the death of Dr. (Mrs.) V.K. Bhola was on account of negligence and in competency of the Doctors who operated.

ON evaluation of the material on record and preponderance of evidence, we are of the opinion that the complainants have failed to make out any case of medical negligence on the part of the opposite parties so as to justify any compensation.

ACCORDINGLY, the complaint is dismissed with no order as to costs. Complaint dismissed.