Savitri Devi vs Union of India

IN this complaint filed under Section 17 read with Section 12 of the Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act), the complainant Smt. Savitri Devi widow of late Shri H.L. Sharma prays for compensation of Rs. 18 lacs against Union of INdia through Secretary, Ministry of Health and Welfare, New Delhi, Chandigarh Administration, Chandigarh through its Home Secretary, Government Medical College, Hospital (for short hereinafter referred to as GMCH) Sector 32, Chandigarh through its Director Principal, Doctors M.S. Sekhon, R.K. Batra, Miss Menakshi of GMCH aforesaid for carelessness and negligence during Laproscopic Cholecytectomy, leading to the death of her husband on the day of operation performed on 22.6.1999 itself, around 5.45 p.m. Late Shri H.L. Sharma aged about 68 years, resident of House No. 405, Sector 5, Panchkula was admitted in GMCH, Sector 32, Chandigarh on 21.6.1999 for surgery by Laproscopic Cholecytectomy for removal of his gallbladder which had stones and due to which Shri H.L. Sharma was suffering. Shri H.L. Sharma got ultra-sound done under the advice of Dr. Mirchia from Dr. (Mrs.) Walia''s Ultra-sound X-Ray Centre, Chandigarh. A copy of the ultra-sound report dated 21.6.1999 is annexed as Annexure C-1. The ultra-sound report showed no abnormality in the body system of Shri H.L. Sharma and he was found to be fit and fine. It has been alleged that Dr. Dalal of GMCH, Sector 32, Chandigarh was to perform surgery on the husband of the complainant and the operation was fixed for 22.6.1999. The husband of the complainant was detailed on turn No. 6 for surgery operation. All the requisite tests were conducted and everything was found perfectly fine except a small stone in the gallbladder. Since Dr. Dalal who was to operate originally was not present in the Operation Theatre on 22.6.1999, the surgery was performed around 12 p.m. by the team of surgeons headed by the opposite party No. 4 - Dr. M.S. Sekhon. The other two members were opposite party No. 5 - Dr. R.K. Batra and opposite party No. 6 - Dr. Miss Meenakshi. The complainant and other family members were waiting outside the Operation Theatre. The operation, as per doctors assessment was to last not more than half an hour. However, after about 45 minutes, Dr. Miss Meenakshi came out of the Operation Theatre and contacted the complainant and her son Ravinder to append signatures on another sheet and informed that the condition of Shri H.L. Sharma in the Operation Theatre was precarious and another surgery was to be performed. It is alleged that the opposite party No. 6 at that time was nervous and upset, apologetic and it could be inferred that something had gone wrong in the Operation Theatre. The complainant was informed that six units of blood had to be arranged immediately for the surgery and consequently made arrangements of six units of blood. During this period, opposite party Nos. 4 and 5 also came out of the Operation Theatre and joined opposite party No. 6 and were discussing something. It has been alleged that Shri H.L. Sharma breathes his last and was pronounced dead around 5.45 p.m. and his body was brought outside the Operation Theatre. The allegation of the complainant is that the death of Shri H.L. Sharma during the course of surgery happened due to negligence and carelessness on the part of the opposite party Nos. 4 to 6 who also committed forgery and fabrication in the hospital records.

A legal notice dated 9.8.1999 was served on the opposite parties demanding a sum of Rs. 40 lacs towards damages due to untimely and torturous demise of the complainant whose life, it is alleged, was curtailed owing to negligence act of the opposite parties. The notices were initially not received by the opposite parties. The complainant was entirely dependent upon her husband and the death of her husband put her virtually on road. At the time of his death Shri H.L. Sharma, it is alleged, was doing the business of sale and purchase of motor parts and was earning as sum of Rs. 3 lacs per annum. The notice of the complaint was sent to the opposite parties for their reply. The opposite party Nos. 1 to 3 filed one set of written statement while opposite party Nos. 4 to 6 filed a separate written statement. The opposite party Nos. 1 to 3 took preliminary objection that the complaint was not maintainable as the GMCH, Sector 32, Chandigarh and doctors working within were not covered under the provisions of the C.P. Act. It is further contended that the operation was conducted after the patient and his relatives gave a free consent. The allegations of negligence and deficiency in service were denied. It was alleged that a team of surgeons comprising Dr. M.S. Sekhon, Dr. Batra and Dr. (Miss.) Meenakshi operated upon the patient Sh. H.L. Sharma on 22.6.1999. During the course of surgery, it was noticed that there were adhesions in the region of the gallbladder and Porta. It is alleged that while separating adhesions more than usual bleeding started and due to the bleeding it was decided to perform open surgery in place of surgery by Laproscopic method. Since the decision was taken for open surgery, it was thought appropriate to have a free written consent of the relatives and the same was obtained after explaining the situation to them. During the entire procedural surgery, blood supplemented by other fluids was being regulated to combat the loss. It was categorically denied that during this period, Shri H.L. Sharma had already expired. It was alleged that Shri H.L. Sharma was resuscitated after he had cardiac arrest following arrhythmia. The conversion from Laproscopic surgery to open surgery was done in compelling circumstances only. It was denied that lengthy surgery was performed on the patient Shri H.L. Sharma unnecessarily. It was further contended that there was no reason to cover up the case and the family members of Shri H.L. Sharma were duly explained the entire situation and their consent was obtained. The family members were asked to arrange the blood and there was no motive to divert their attention by way of delaying the declaration of the death of Shri H.L. Sharma up to 5.45 p.m. Shri H.L. Sharma, it was alleged, actually died at 5.45 p.m. The allegations of forgery and fabrication on record of G.M.C.H. were specifically denied. It was contended that there was no reason to shift the responsibility of any doctor, as surgery is basically teamwork and the same also applies when the operation of the patient is being carried out. The receipt of the notice sent by the complainant was accepted and its reply was sent a copy of which has been annexed as Annexure R-1. It was alleged that the complainant was not entitled to any amount of compensation. The opposite party Nos. 1 to 3 in their joint written statement took the similar pleas by way of preliminary objections as were raised by the opposite party Nos. 1 to 3. In addition to it, it was alleged that the complainant has wrongly used the words "accused/respondents" against the names of opposite party Nos. 4 to 6. As a matter of fact, they are to be described as opposite parties. They have alleged that the surgery on the husband of the complainant was performed with meticulous care and diligence by the opposite party Nos. 4 to 6 who belong to the Surgery Department of GMCH, Sector 32, Chandigarh. It was alleged that during surgery till the release of the patient from the recovery room attached to the operation theatre, the duty to monitor, regulate and keep under control the vital functions of the patient is that of the team of Anaesthetists belonging to the Department of Anaesthesia, acting independently though in complete coordination with the surgery team, which concentrates only on the surgical procedures. In addition, there is a third team, namely of the Nursing Staff which performs its duties of monitoring the functions of the patient in the ward (before the operation) and in the recovery room (after the operation) independently of the Surgical and the Anaesthetist team, though in unison with them. The patient Shri H.L. Sharma had been declared fully fit for surgery as "Grade-I" by the Anaesthetist through his Pre-Anaesthetist Clearance (P.A.C.) checkup done on 21/22.6.1999. It was, thereafter, contended that the patient was taken up for surgery on 22.6.1999. There was no negligence or carelessness on the part of opposite party Nos. 4 to 6 or on the part of the Anaesthetist team. The patient died for none of their faults although all steps known to modern medical science had been taken by the surgery and Anaesthetist teams working together to save him. Elaborating the surgery of Shri H.L. Sharma, it was alleged that during initial surgery for removal of his gallbladder by Laproscopy, the patient had bleeding from the non-specific engorged veins (due to his hidden portal hypertension) which lay masked by dense adhesions around that region. While separating the gallbladder from those dense adhesions connecting it to other organs, bleeding occurred from those hidden portal veins, which could be controlled only by converting surgery by Laproscopy to open surgery. After receiving a free and conscious consent of the patient''s relatives, conversion to open surgery was made while blood requisitioned from the Blood Bank as supplemented by other fluids was being given to combat the blood loss caused by the said bleeding. After such conversion, bleeding was stopped effectively and promptly. However, during operation by open surgery, the patient had a cardiac arrest from which he could be revived by the Anaesthetists team and then the open surgery proceeded normally to completion. After he was shifted to the recovery room while on ventilator and under monitor, accompanied by the surgery as well as the Anaesthetists teams, he had another cardiac arrest of a severe nature from which he could not be revived by the Anaesthetists team headed by Dr. K.K. Gomber, Professor and Head of Anaesthesia Department of GMCH, in spite of its best possible efforts at his resuscitation. Ultimately and unfortunately, he was declared dead at 5.45 p.m. on 22.6.1999 in the recovery room. The whole position was explained thereafter to his relatives by the answering opposite parties and they were fully satisfied about it. They had removed the dead body of the patient from the mortuary without getting the post-mortem examination performed, from which it is evident that they had no such grievance as now concocted in the present complaint. It was further contended that the complainant had concealed from this Commission that the income of the patient at the time of his admission GMCH, Sector 32, Chandigarh was shown as "0.00", i.e. Nil. On the basis thereof, the patient received almost almost free treatment at negligible rates. The complainant, it is alleged, is now estopped from claiming that the deceased husband Sh. H.L. Sharma was earning at the age of about 69 years an income of Rs. 3 lacs per annum.

The photocopies of the relevant record were annexed. The complainant Smt. Savitri Devi filed her affidavit in support of the averments made in the complaint case and besides her son Shri Ravinder Kumar filed his affidavit annexing therewith photocopies of the reports filed in the Income Tax Department. On behalf of the opposite party Nos. 4 to 6, Dr. M.S. Sekhon, former Professor and Head, Department of Surgery, GMCH, Sector 32, Chandigarh filed his affidavit. The opposite party No. 5 Dr. R.K. Batra and opposite party No. 6 - Dr. (Miss) Meenakshi filed their separate affidavits. On behalf of opposite party Nos. 1 to 3, Professor S.B.S. Maan, Director-Principal, GMCH, Sector-32, Chandigarh aforesaid filed his affidavit.

THE complainant sought permission of cross-examining opposite party Nos. 4 to 6. Out of the three opposite parties, only opposite party No. 4 - Dr. M.S. Sekhon was cross-examined by the learned Counsel for the complainant. THE other two opposite parties i.e. Nos. 5 and 6 were present for cross-examination and their initial statements with reference to their affidavits filed in the case were recorded. THE learned Counsel for the complainant, however, decided not to proceed with the cross-examination of opposite party Nos. 5 and 6 and made a statement to that effect and, thereafter, these opposite party Nos. 5 and 6 were discharged. The original record relating to the case of late Sh. H.L. Sharma was requisitioned by the Commission and the same was filed for perusal of the Commission which has been kept in a close envelope.

WE have heard the learned Counsel for the appellant Mr. H.S. Lali, Advocate and the Govt. Pleader Mr. K.C. Sahu for opposite party Nos. 1 to 3. WE have also heard Mr. Amrit Paul, Advocate for opposite party Nos. 4 to 6. WE have carefully perused the evidence on record. In nutshell, the grievance of the complainant, as submitted by the learned Counsel for the complainant Mr. H.S. Lali, Advocate is that once the team of surgeons found that there were adhesions which were not allowing the gallbladder to be separated by Laproscopy, the surgery by Laproscopy at that stage should have been abandoned rather than continuing the surgery by Laproscopy during which the excessive bleeding from unknown region is said to have been taken place from which, the decision was taken to convert the surgery from Laproscopy to open surgery. The other grievance of the complainant is that Shri H.L. Sharma had in fact died at the operation theatre during the surgery when he suffered the first cardiac arrest but the surgery is shown to have been continued and the pronouncement of his death was unnecessarily delayed and was ultimately declared dead clinically at 5.45 p.m. In this connection, an attempt was made to point out that the record relating to the patient was forged regarding the time of monitoring him in the Operation Theatre and recovery room. It was also pointed out that in the reply notice, to the notice sent by the complainant, the time of pronouncement of death has been mentioned as 4.45 p.m. instead of 5.45 p.m. Mr. H.S. Lali, Advocate appearing for the complainant contended that once the team of surgeons led by Dr. M.S. Sekhon opposite party No. 4, while conducting surgery by Laproscopy on the patient Shri H.L. Sharma (since deceased) found that gallbladder was not free and was attached to the liver due to adhesions, the method of Laproscopy for surgery ought to have been abandoned then and there and the operation should have been performed by open surgery which was eventually done but not before there was profuse bleeding from the non-specific engorged veins. Mr. H.S. Lali, Advocate submitted that the medical negligence was committed by the opposite party Nos. 4 to 6 in the sense that they unnecessarily and carelessly pursued the surgery by Laproscopy though according to the standard medical norms, once there was adhesions, the surgery should not have been performed by Laproscopy.

APART from the aforesaid ground negligence and carelessness, the learned Counsel for the complainant pointed out that the patient Shri H.L. Sharma suffered cardiac arrest while he was still being operated and in all probability, he had died but the opposite party Nos. 4 to 6 proceeded with the open surgery only to cover up their negligence and carelessness. The opposite party Nos. 4 to 6 on the pretext of proceeding with the open surgery asked for six units of blood and obtained fresh consent from the son of patient Shri H.L. Sharma. The patient Shri H.L. Sharma was later on shifted to the recovery room around 3.50 p.m. where the team of surgeons and anaesthetists monitored the patient and was eventually pronounced dead at 5.45 p.m. Primarily these are the two main grounds urged on behalf of the complainant. It may be, however, mentioned that there are also allegations of fabrication of the medical record of the patient Shri H.L. Sharma regarding the actual time of his death. It has also been pointed out that in reply to the notice served on behalf of the complainant on the opposite parties that the death of Shri H.L. Sharma had taken place at 4.45 p.m. As mentioned above, the stand taken by the opposite parties in their written statement is one of denial of the allegation of medical negligence and carelessness while performing surgery initially by Laproscopy and later on by open surgery. The allegation of the death of Shri H.L. Sharma having taken place at the time when he suffered the first cardiac arrest was also categorically denied. The allegations of forgery and fabrication of the medical record of the patient Shri H.L. Sharma were also specifically denied.

IT may be mentioned that the patient Shri H.L. Sharma had been brought to the GMCH, Sector 32, Chandigarh by the complainant and her son with the complaint of having stone in his gallbladder. He had got admitted on 21.6.1999. Prior to his admission, he was taken by the complainant to Dr. (Mrs.) Walia''s Ultra-sound X-Ray Centre, Chandigarh for ultra-sound. The report of ultra sound has been placed on record by the complainant as Annexure C-1. This report runs as under : "The lung fields and costophrenic angles are clear. Cardiac size and sillhoutte is normal. Both hila are normal. Both domes of diaphragms are placed at normal level. Bony cage and soft tissue shadows are normal. Impression : No abnormality detected." This report has been signed by Shri H.K. Walia. After admission to GMCH, Sector 32, Chandigarh, Shri H.L. Sharma was diagnosed as a case of acute cholecystitis with cholelithiasis on 7.6.1999 and was advised surgery. Consequently, the patient Shri H.L. Sharma was admitted on 21.6.1999 and was checked by the team of anaesthetists belonging to the department of Anaesthesia of GMCH, Sector 32, Chandigarh and had been declared fully fit for surgery as (Grade - I). After pre-anaesthetic clearance checkup was done, the patient was put on the list of patients due for surgery on 22.6.1999 at Serial No. 6. The surgery was to be initially performed, as alleged in the complaint, by Dr. Dalal of GMCH, Sector 32 but he was not available at the time of operation and the operation was undertaken by the team of surgeons led by Dr. M.S. Sekhon. The two other members of the team were opposite party No. 5 - Dr. Batra and opposite party No. 6 - Dr. (Miss) Meenakshi. It has been contended on behalf of the opposite party Nos. 4 to 6 that the patient Shri H.L. Sharma and his relatives wanted the surgery to be performed by Laproscopy. The consent of the relatives of Shri H.L. Sharma was obtained for surgery. It will appear from the affidavit of Dr. M.S. Sekhon opposite party No. 4 that the written consent was given for performing cholecystectomy for which patient Shri H.L. Sharma had been admitted as per the OPD Card (Annexure R-4/1) i.e. for the removal of his gallbladder itself. The patient was shifted for the said surgery for removal of his gallbladder from the ward to Operation Theatre at about 12.20 p.m. on 22.6.1999. In the Operation Theatre, the patient Shri H.L. Sharma was put on anaesthesia by the Anaesthetists team comprising Professor (Dr.) K.K. Gomber, Head of Anaesthesia Department and Dr. Sukhanaya, etc. at about 12.45 p.m. on the operation table. The operation of the patient for the said surgery by Laproscopy for removal of his gallbladder started at about 1.00 p.m. by the team of surgeons and the physical condition of the heart, lungs and other organs was being monitored and keep under control by the aforesaid team of Anaesthetists. It was clearly deposed in Para 5 at internal page 4 of the affidavit of Dr. M.S. Sekhon that the surgeon team and the anaesthetist team worked independently but in harmony with each other with the main common goal of the success of the surgery. Reference to the surgery by Laproscopic procedure in sub-para 6 of Para 4 was made, wherein, it was deposed as under : "(6) That it was found during surgery by Laparoscopic procedure by the deponent assisted by the respondent Nos. 5 and 6 that when the gallbladder along with the liver of the said patient was pushed up in order to separate them for removing the gallbladder, the patient was not having a normal interior. There was dense adhesions seen all over the gallbladder and porta. The gall bladder which is generally free, was found connected tightly by those adhesions to the liver and other organs. In order to remove the diseased gallbladder from the body of the patient, it had to be separated from those organs. It was while separating those adhesions that it was further found that the patient was also having hidden early portal hypertension. Because of this hidden early portal hypertension, his portal collaterals lay mixed up inseparably with those dense adhesions with the engorged veins. Therefore, during the careful process of separating the gall-bladder from other organs of the patient by clearing it free of those dense adhesions, more than usual bleeding started from the collateral vessels as a sequel to his said hidden complications such as dense adhesions, early portal hppertension, engorged portal collaterals, etc., visualized during laparoscopic surgery. All possible methods to stop the said bleeding were employed through the laparoscope which offers a limited area of operation site. The bleeding was stopped initially, but after some time the spurt of bleeding again erupted due to the said hypertension of portal collaterals which the patient was suffering from. Seeing this, it was immediately decided by the surgery team to go in for open surgery which offers bigger operational site for controlling such unusual bleeding by inserting bigger swab aided by other methods. By that time, it was around 1.30 p.m. Therefore, the deponent asked the respondent No. 6 in the complaint, Dr. (Miss) Meenakshi Malhotra, to go out of the operation theatre, at about 1.30 p.m. and not at 12.45 p.m. as wrongly alleged in the complaint, and to explain it all to the relatives of the patient and to have their consent for open surgery of the patient for removal of his gallbladder, for which their free consent would be needed and they shall have to arrange for six units of blood to be recompensed to the Blood Bank of the Hospital (which shall, and which did, initially supply the same immediately).

In Para 7, it was deposed that six units of blood had been requisitioned from the blood Bank of GMCH and was promptly made available in the operation theatre. Transfusion of blood and all other fluids were immediately started on the patient to combat his blood loss without waiting for the blood to be arranged by the patient''s relatives and without waiting for the said consent for conversion to open surgery. The patient was fully alive at that time and it is wrong and denied that the consent for conversion to open surgery was required in order to revive him. In Para 8, it was deposed that Shri Ravinder Kumar son of the patient Shri H.L. Sharma gave his consent which read as under : "I am willing for open surgery (cholecystectomy) of my father H.L. Sharma. Sd/- Ravinder Kumar."

IT was further deposed that they also agreed to arrange six units of blood to be made good to the hospital''s Blood Bank. IT was deposed categorically that the patient was fully alive at that time. Dr. M.S. Sekhon denied that the patient had already breathed his last prior to asking his relatives for arranging six units of blood. In Para 9, it was deposed, inter alia, as under : "...By doing so, the bleeding was immediately controlled and stopped. Transfusion of blood supplemented by other fluids was regulated by the Anaesthetists team to combat earlier blood loss of the patient, the 6 units of blood having already been made available for that purpose by the Blood Bank of the Hospital in the operation theatre for that patient. The surgery for removal of his gallbladder, by separating it from the dense adhesions jointing it with other organs, thereafter proceeded swiftly without any further obstacle. And it stood completed by around 3.35 p.m. when his wound was closed in layers and antiseptic dressing had been done, and he was fully alive on the operation table."

In subsequent paragraph Nos. 10, 11 and 12, the events which happened subsequent to the completion of open surgery were narrated.

IT was deposed in Para 10 that due to the excessive bleeding which occurred prior to the conversion to open surgery, the patient''s B.P. had fallen and he had gone into shock around 1.30 p.m. it was deposed further "...To combat it, the Anaesthetists Team in the operation theatre headed by Professor K.K. Gomber, which was constantly monitoring and regulating the vital functions of the patient independent of the surgeons team, immediately took all possible steps to bring him back to normalcy. In spite of it, he had an initial cardiac arrest during open surgery. However, the Anaesthetists team was able to resuscitate him and his heart revived and his B.P. started showing up. In that revived condition, the open surgery was completed by around 3.35 p.m. as aforesaid, while he was fully alive on the operation table. Thereafter, he was shifted to the Recovery Room around 3.55 p.m. on 22.6.1999 while on ventilator and under monitor, where he was attended upon constantly by the anaesthetists team, accompanied by the surgeons team headed by the deponent." It will appear from deposition made in Para 11 that Shri H.L. Sharma, the patient, while in recovery room had shown recordable B.P. of 70/50 at about 4 p.m. but at about 5.10 p.m., he had another cardiac arrest in the recovery room. Constant efforts were made to resuscitate him there by all methods known to modern medical science, but ultimately these efforts failed and he was declared clinically dead at 5.45 p.m. by opposite party No. 5 - Dr. Batra in the recovery room on 22.6.1999. In Para 12, it was deposed that Dr. M.S. Sekhon along with Dr. R.K. Batra and Dr. (Miss) Meenakshi Malhotra came out of recovery room with a saddened heart and explained the whole position to his relatives around 5.45 p.m. and they on that time accepted it as the Will of God and were satisfied about the best possible efforts made to save the patient by the anaesthetists team and the surgeons team, which could not succeed.

THIS is the clear and complete picture of the events which took place in the operation theatre on the fateful day i.e. 22.6.1999, on which day, despite all medical care and following the established medical norms, the surgery was performed and all efforts were made to resuscitate the patient Shri H.L. Sharma who unfortunately could not survive after the second cardiac arrest and was pronounced dead at 5.45 p.m. A careful perusal of the affidavit of Shri M.S. Sekhon will go to show that Dr. M.S. Sekhon did all at his command and according to his considerable experience as a surgeon while performing a surgery on the patient Shri H.L. Sharma. The deposition of Dr. M.S. Sekhon in his affidavit does not show any case of per se negligence and carelessness. In the operation theatre, as would appear from the perusal of the affidavit of Dr. M.S. Sekhon and which has not been controverted by the complainant, three teams were independently working with each other but in unison of each other, while surgery is being performed on the patient. So far as the functioning of the vital organs of the patient during surgery is concerned, it is the main duty of the team of anaesthetists who are in no way subordinate to or under supervision and control of the team of surgeons. Likewise, paramedical staff i.e. the nurses working in the operation theatre are working independently, though as stated earlier, in unison with the team of anaesthetists and surgeons. It is only after the anaesthetists gave clearance to the surgeon to proceed with the surgery, the surgery is performed. During the performance of the surgery, the responsibility of the proper functioning of the vital organs of the patient is on the team of anaesthetists. The surgeons are required to perform the surgery. Evidently, surgery can be performed only after the team of anaesthetists are satisfied that the patient is under anaesthesia and can be operated upon. Significantly, the complainant has not made any grievance against the team of anaesthetists nor the team of anaesthetists headed by Dr. K.K. Gomber, Professor and Head of Department of Anaesthesia of GMCH, Sector 32, Chandigarh were impleaded as opposite party in the complaint case. That notwithstanding, still the complainant was required to show that the team of surgeons was so negligent, callous and careless that the patient suffered cardiac arrest due to their negligence to which the other two teams of anaesthetists and the nursing staff had no contribution. It was in this connection that Mr. H.S. Lali, Advocate for the complainant vehemently argued that the decision to persist with surgery by Laproscopy despite perfused bleeding was an act of medical negligence and carelessness.

DR. M.S. Sekhon as per prayer made by the complainant was called for cross-examination with reference to his affidavit. The complainant had thus an opportunity of enquiring and ascertaining from DR. M.S. Sekhon about his decision to proceed with the surgery despite knowing that there were adhesions and gallbladder was not free from liver and other organs for being removed by the surgery done by Laproscopy. A perusal of cross-examination conducted on DR. M.S. Sekhon on 2.8.2001 will go to show that the cross-examination was substantially and mainly done in respect of the written consent given by Shri Ravinder Kumar aforesaid son of Shri H.L. Sharma patient and not a single question was put to him regarding this aspect of the matter where the surgery by Laproscopy was continued despite the adhesions which held the gallbladder and the same was not free to be removed till separated from the liver and other organs. And only reference which was made in regard to the change of the method of surgery from Laproscopy to open surgery is about the fresh consent taken by the team of surgeons from Shri Ravinder Kumar son of the complainant. The relevant portion of the cross-examination of DR. M.S. Sekhon in this regard, reads as under : "...The attendant is, however, informed of the further details regarding the surgery during the course of operation, if such need arises. The attention of the deponent was drawn to the averments made in Para 4(2) of his affidavit where there is the reference of a written consent given by the patient was also signed by his son, Sh. Ravinder Kumar for performing cholecystectomy by Laparoscopy i.e. Lape Chole. It was enquired from the witness as to whether fresh consent was taken when it was decided to perform open surgery. The witness replied that once the general consent is taken and thereafter if it is decided that open surgery be performed then the attendant it usually called outside the OT and he is informed about the decision so taken for the performance of open surgery on the patient. Para 8 of my affidavit contains an averment regarding the consent given by the son of the patient i.e. Sh. Ravinder Kumar regarding the conversion of the surgery into open surgery from the earlier method of surgery i.e. Lape Chole...."

It is thus evident that even in the cross-examination the complainant could not elicit and for that matter made no attempt to elicit from Dr. M.S. Sekhon about the surgery being continued by Laproscopy after it was found that there were adhesions withholding the gallbladder and there was bleeding when separating the gallbladder from the liver and other organs. It may be pointed out that it is the surgeon who has to consider and take a decision while performing a surgery as to what is best in the interest of the patient and for the successful performance of the surgery, he takes decisions which are to be taken at the spur of the moment. Such decisions cannot be found fault with and said to amount to medical negligence and carelessness.

The other two members of the team of surgeons Dr. R.K. Batra and Dr. (Miss) Meenakshi Malhotra in their affidavit took the same stand as taken by Dr. M.S. Sekhon. On behalf of the complainant the request was made for cross-examination of these opposite parties i.e. Dr. R.K. Batra and Dr. (Miss) Meenakshi Malhotra. Both the deponents Dr. R.K. Batra and Dr. (Miss) Meenakshi Malhotra appeared before the Commission and presented themselves for cross-examination. However, the learned Counsel for the complainant did not cross-examine these witnesses with reference to their affidavits. The averments made by Dr. R.K. Batra and Dr. (Miss) Meenakshi Malhotra are thus uncontroverted and these are no valid reasons to disbelieve the averments made by them in their respective affidavits.

THE matter regarding the medical negligence and deficiency in service within the scope of Sections 2(i)(g) and (i)(o) of the C.P. Act came up for consideration before the Hon''ble National Consumer Disputes Redressal Commission, New Delhi recently in the case of Bhajan Lal Gupta & Anr. v. Mool Chand Kharati Ram Hospital & Ors., I (2001) CPJ 31 (NC)=2001 CTJ 159 (CP) (NCDRC), and the Hon''ble National Consumer Commission has quoted from Halsbury''s Laws of England, Ed. 3 - Vol. 26, pp. 17-18, in Para 22 as under : "22. Negligence : Duties owed to Patient-A person who holds himself out as ready to give medical advice or treatment impliedly undertaken that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."

Degree of skill and care required-THE practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires; a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men."

Thereafter, the Hon''ble National Commission cited the case of Bolan v. Friern Hospital Management Committee, (1957) 1 WLR 582, Lord Justice Mac Nair while briefing the Jury and directed : (i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that take a contrary view. Subsequently the earlier decision of the Hon''ble National Commission in the case of Smt. Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors., III (2000) CPJ 18 (NC)=2000 CTJ 814 (CP), an extract was quoted from Taylor''s Principles and Practice of Medical Jurisprudence XII Ed. which was extracted in Para 11 as under : "I myself would prefer to put it in this way : A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by responsible body of medical men skilled in that particular art. Medical science has conferred great benefit of mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advance in technique is also attended by risks."

SO far as negligence per se is concerned, Hon''ble Supreme Court in the case of Poonam Verma v. Ashwin Patel & Ors., II (1996) CPJ 1 (SC)=AIR 1996 SC 2111, observed as under : "Negligence has manifestations - it may be active negligence, collateral negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active negligence and passive negligence, wilful or reckless negligence or negligence per se which is defined in Black''s Law Dictionary as under : Negligence per se : Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes."

In the case of Laxman v. Trimbak Bapu Godbole & Anr., AIR 1969 SC 128, the Hon''ble Supreme Court held in Para 15, inter alia, as under : "A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill, diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases which the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."

In view of the position of law regarding the medical negligence and careless as referred to above, in the instant case, the complainant has failed to show that the opposite parties were guilty of medical negligence and carelessness in performing surgery on the patient Shri H.L. Sharma. It is unfortunate that Shri H.L. Sharma died due to the cardiac arrest suffered by him after surgery.

SO far as the other contention regarding the actual death of Shri H.L. Sharma patient in the operation theatre is concerned, it is sufficient to point out that Dr. M.S. Sekhon in his affidavit has clearly and categorically mentioned that the patient Shri H.L. Sharma was alive at the time when he was operated upon. In cross-examination, he specifically stated as under : "....The operation was completed around 3.35 p.m. and the patient at that time was alive...." The patient as per hospital''s record was pronounced dead at 5.45 p.m. The mere over-writing in the time mentioned in the notes of the medical record or for that matter, wrong reference to the time of 4.45 p.m. in the reply notes will not be sufficient to hold that the patient did not die at 5.45 p.m. Even if it be assumed for a moment that the patient had died at 4.45 p.m., as mentioned in the reply, it does not advance the case of the complainant because the death in any case took place after the surgery was completed.

IN view of the foregoing discussion, the complainant has failed to substantiate the allegations made in the complaint case regarding the medical negligence and carelessness on the part of opposite parties as the cause of death of Shri H.L. Sharma, patient. Resultantly, the complaint lacks merit and is dismissed. The costs shall however be borne by the parties themselves. Copies of this judgment be supplied to the parties free of charges. Complaint dismissed.