VEENA MAHAJAN vs VED KUMAR GUPTA

-BRIEFLY stated the facts are that Sh. Subhash Mahajan was A-class Government contractor, whose annual income was more that Rs. 5 lacs. Smt. Veena Mahajan-complainant No. 1 is his widow while complainant Nos. 2 to 6 are his children and all were dependent upon him.

IT was next averred that on 14. 4. 2001, Subhash Mahajan visited the hospital known as Dr. Ved Hospital, Heart Care and General (Amritsar) and Dr. Ved Gupta-OP No. 1and Dr. B. B. Goel OP No. 2 declared that he was suffering from Cholilithiesis and chronic obstructive airway disease as mentioned in OPD card. He was advised by OP Nos. 1 and 3 to be admitted immediately in their hospital for operation/surgery for removal of gall bladder with the help of laparoscopic Cholecystectomy. Thus, on their advice, he got himself admitted in the hospital on the same day. It was further averred that he was a known COAD case but neither his X-ray (chest) was done to rule out any lungs disease, nor any ECG test was taken to rule out any cardiac disease which showed great negligence on the part of OP Nos. 1 and 3. OP No. 1 being not a surgeon, was not competent to admit and operate Sh. Subhash Mahajan because he was medical specialist but OP No. 1 admitted him for greed to extort money through unfair means. The operation theatre maintained by them was not having proper facility for conducting operation/surgery in his hospital.

It was next averred that OP No. 2 Dr. B. B. Goel must have been a dummy surgeon or inexperienced person to perform laparoscopic surgery for which Subhash Mahajan was admitted but later on operation was done by exploration of abdomen without informing about the same to Subhash Mahajan or his attendants. However, OP No. 2 was working as Professor in Government Medical College, Amritsar without holding any surgical qualification and was not competent to operate Subhash Mahajan.

IT was further averred that pre-operative ABG findings were clearly suggestive of respiratory acidosis calls for which treatment was necessary before he could be operated upon but this was not done and on the other hand, he was labelled chronic smoker and alcoholic. During surgery, Subhash Mahajan suffered respiratory cardiac arrest but OP failed to revive the patient in time i. e. within five minutes and resultantly Subhash Mahajan went into cerebral hypoxia leading to brain damage or brain death and he never regained consciousness till his death. It was next averred that three units of blood were given to Subhash Mahajan during operation after cardiac respiratory arrest which showed that there must be acute blood loss as a result of some serious injury to major artery or aorta which sent the patient into a shock and this showed negligence on the part of operating team and ultimately he went into coma.

IT was further averred that Subhash Mahajan was discharged on 15. 4. 2001, just after one day and that too on the request of his attendants but attendants never made such request and OP No. 3 accompanied Subhash Mahajan to D. M. C. Ludhiana and even the death summary of D. MC. suggested that biliary leakage led to biliary peritonitis leading to septicemia which showed incomplete surgery of gall bladder by inexperienced and negligent persons. The copy of the death summary is Annexure C-4. In the D. M. C. Hospital OP No. 3 falsely furnished history of Subhash Mahajan by stating that he was chronic chain smoker and alcoholic which was not true. Ultimately Subhash Mahajan died on 6. 5. 2001. Alleging negligence in treatment of OPs of Subhash Mahajan, present complaint was field on 6. 5. 2003 and claimed compensation of Rs. 22. 00 lacs. Opposite parties contested the complaint. OP Nos. 1 and 3 denied the allegations and stated that there was no deficiency in service on their part. They denied that Subhash Mahajan was A-class Government contractor whose annual income was more than Rs. 5 lacs. They further stated that on 14. 4. 2001 Subhash Mahajan through Dr. B. B. Goel had approached their hospital and both Dr. B. B. Goel as well as Subhash Mahajan had asked for providing nursing facilities and also for providing use of operation theatre in the hospital. Earlier on 11. 4. 2001 the relatives of Subhash Mahajan had also brought him with the ultrasound report for admission for removal of gall bladder but during medical examination, it was found that he was having chronic obstructive airway disease with history of heavy smoking. Accordingly he was advised best medical treatment and was further advised to defer surgery for the removal of gall bladder till such time his respiratory problem was under control. Thereafter, Subhash Mahajan and his relatives themselves had contacted Dr. B. B. Goel after Subhash Mahajan was relieved of the symptoms and Dr. B. B. Goel had planned surgery when bronchitis problem was completely under control. They denied that they had advised Subhash Mahajan to get himself admitted in the hospital for immediate surgery for removal of gall bladder. They denied that they had ever told Subhash Mahajan that his operation shall be conducted with the help of Laparoscope, rather on the contrary Dr. B. B. Goel had made it clear to Subhash Mahajan and his attendants that Subhash Mahajan had to undergo conventional surgery for removal of his gall bladder. They next stated that ECG and X-ray chest of Subhash Mahajan were taken on 11. 4. 2001 to rule out possibility of any cardiac disease. They further stated that Dr. B. B. Goel who was renowned surgeon had conducted operation of Subhash Mahajan with his consent and the consent of his relatives and they had provided only nursing care facility and use of operation theatre. They next stated that Dr. Ved Gupta was a world famous heart specialist and a known medical teacher with teaching experience of 30 years at State Medical College in various capacities and his operation theatre was one of the best operation theatres in the northern India. They next stated that Dr. B. B. Goel was a qualified surgeon. They denied that there was any serious injury to any artery/aorta of Subhash Mahajan or there was any negligence on the part of operating team which led to the death of Subhash Mahajan. They next stated that Dr. Karan accompanied Subhash Mahajan to D. M. C. , Ludhiana at the request of attendants of patient and there was no mala fide intention in sending Subhash Mahajan to D. M. C. They denied other allegations and stated that the complaint should be dismissed.

OP No. 2 sent letter dated 9. 6. 2003 which was received on 13. 6. 2003 in which he mentioned that allegations made against him were incorrect and he never recommended for operating Subhash Mahajan at Dr. Ved Gupta Hospital and further he had not conducted any operation of Subhash Mahajan at Dr. Ved Hospital on 14. 4. 2001. He further stated that he was not a laparoscopic surgeon and on the other hand, he was working as professor of Surgery at Government Hospital, Amritsar and had no link with Dr. Ved Gupta Hospital, Amritsar. However, none appeared on behalf of OP No. 2 after sending his reply through post.

OP No. 4 was impleaded vide order dated 7. 2. 2007. However, OP No. 4 did not file any reply and adopted the reply filed by OP Nos. 1 and 3. Parties adduced their evidence by way of affidavits and documents.

We have heard Counsel for complainant Mr. G. L. Bajaj, Counsel for OP Nos. 1 and 3 Mr. Karanbir Singh, Counsel for OP No. 4 Mr. Gaurav Bhardwaj and carefully gone through the file.

IT is alleged by the complainants that Mr. Subhash Mahajan (now deceased) visited the hospital of OPs 1 and 3 in connection with his trouble and as per their diagnosis, he was found to be suffering from Cholilithiesis with chronic obstructive airway disease and was advised by them to get admitted in the hospital immediately for operation/surgery for removal of gall bladder with the help of laparoscopic Cholecystectomy as it involved very short duration indoor hospitalization. Therefore, Sh. Subhash Mahajan consented himself to be operated for the same and got admitted in the hospital on the same day i. e. 14. 4. 2001. However, as per normal medical ethics, a patient to be operated should undergo physical and laboratory investigation and clinical observation at least for 24 hours, prior to surgery which was not followed in his case as he was a known COAD case. Further neither his X-ray (chest)was done to rule out any lungs disease nor any ECG test was taken to rule out any cardiac disease which showed great negligence on the part of OPs 1 and 3. It was further stated that surgeon i. e. OP No. 2 who was called by OP No. 1 must have been dummy surgeon or inexperienced one to perform lapro surgery as he was admitted for lapro surgery but the operation was done by exploration of abdomen without taking his consent Counsel for OP Nos. 1 and 3 on the other hand contradicted the allegations and stated that Sh. Subhash Mahajan visited OPD of OP No. 1 on 11. 4. 2001 and was properly examined and was diagnosed to be a case of chronic smoker''s bronchitis and accordingly OP No. 1 prescribed certain medicines and never advised any such surgery. He further contended that on 11. 4. 2001 Sh. Subhash Mahajan was properly examined and his X-ray (chest), ECG and all required blood examination, tests i. e. blood sugar, blood urea (11. 4. 2001), HIV, VDRL, BTCT, HB, TLC,dlc, Urine complete (10. 4. 2001) were carried out before the surgery and the suppression of these facts by the complainant proves that it was false case set up against them. It was also denied that OP No. 1 did not possess proper facilities for carrying on operation. On the other hand, it was contended that OP No. 1 was world famous heart specialist and known medical teacher with teaching experience of more than 30 years at State Medical College in various capacities and the operation theatre of OP No. 1 was one of best operation theatres in the Northern India.

IT was next contended that three relatives of the deceased Subhash Mahajan as well as complainant had business dealing with OP No. 1 as they were dealing in surgical goods, etc. inasmuch as Sh. Janak Raj Mahajan, one of brothers in-law (brother of Veena Mahajan, complainant) was running his firm in the name of M/s. J. R. and Bros. , Amritsar, who is manufacturer and supplier of hospital and steel furniture and had business dealing with OP No. 1 for the last several years and very well knew the quality of service provided by OP No. 1. He next contended that another real brother of the deceased Subhash Mahajan (brother of Veena Mahajan , complainant) namely Narinder Mahajan was running a firm under the name and style of M/s. K. C. M. Surgicals, Amrisar and was in the business of surgery and had dealing with OP No. 1 The third brother-in-law of the deceased was running firm in the name and style M/s. Ganpati Fabricators with whom OP No. 1 had business dealings and these persons were aware that OP No. 1 had been a Professor and Head of the Department of Cardiology, Medical College, Amritsar and a highly qualified physician being MD, MNAMS, MRCP (UK ). He further contended that OP No. 2 was never called by OP No. 1 but was arranged and selected by the patient, complainant No. 1 and her relatives and OP No. 2 was not dummy and inexperienced surgeon, rather he was a qualified surgeon, being MS. There is report of Gupta Clinic Laboratory dated 10. 4. 2001 of Subhash Mahajan at page 90 of the file which shows that his HB, VDRL, HIV I and HIV II antibodies and urine examination were done on 10. 4. 2001. There is another report of Gupta Clinical Laboratory of 11. 4. 2001 at page-92 which shows that Hematology of Subhash Mahajan was done which included his TLC, DLC, Neutrophils, Lymphocytes, Monocytes, Eosinophils, Basophils were determined and glucose was also determined, besides kidney functioning test was conducted and his blood urea was measured. On 14. 4. 2001 some other tests were conducted as per report of the laboratory which is at page-93 of the file. His ECG was also done and report of ECG is at page 94 of the file. His blood gas analysis was also done which is at page 95 of the file. There is another report of Advanced Diagnostics at page 101 of file which shows that Dr. Atul Kapoor, M. D. had conducted ultrasonography regarding gall bladder, liver and kidneys of Subhash Mahajan on 11. 4. 2001 and the report reads as under: gall bladder is contracted with increased wall thickness. Lumen shows calculi CBD is of normal Calibre. Liver shows homogenous echotexture. Portobiliary-radicles are normal. No discrete SOL is present. Peritoneal cavity is clear. Pancreas has normal size and echogenicity. No lymphadenopathy is present. Spleen is of normal size, shape and echotexture. Both kidneys are in normal site and have normal size. Cortex has normal echogenicity. No calculus/hydronephrosis is present. U bladder is well distended is with regular wall. Lumen is clear. Prostate has normal size with homogenous echo texture. IMPRESSION: CHOLELITHIASIS WITH CHR. CHOLECYSTITIS. Sd/-Dr. Atul Kapur The report shows that Gall bladder was contracted with increased wall thickness. Lumen shows calculi. Further under the heading "impression" it is stated that Cholelithiasis with CHR. Cholecystitis. Therefore, allegation of the complainant that tests of Subhash Mahajan were not conducted and only with a view to extort money through unfair means they performed operation is not correct. It is also incorrect that the clinic of OP No. 1 was not well equipped and further OP No. 2 was only a dummy surgeon. OP No. 2 has sent reply dated 9. 6. 2003 by post which was received on 13. 6. 2003. According to this reply, Dr. B. B. Goel has been working as professor of surgery at Government Medical College, Amritsar, therefore, it cannot be said that he was a dummy surgeon. It is true that he was not laparoscopic surgeon but he was professor of surgery at Govt. Medical College, Amritsar and was competent to perform surgery and to operate Subhash Mahajan for removal of gall bladder by exploration of abdomen.

THERE is no document on file that OP Nos. 1 and 3 had agreed to perform laparoscopic surgery. In fact according to them, no facility for lapro surgery existed in their clinic and as such there was no question of performing laparoscopic surgery. It is true that OP No. 2 has denied everything. He stated that he was not connected in any way with Dr. Ved Gupta Hospital, Amritsar and Subhash Mahajan never consulted for operation of Gall bladder and further he never visited Ved Hospital for conducting of any operation. These facts, it appears he denied as he was a Government servant and was not entitled to private practice. Otherwise, complainant as well as OP Nos. 1 and 3 had admitted that Subhash Mahajan was operated upon by Dr. B. B. Goel.

IT is difficult to believe that Dr. Ved Kumar Gupta OP No. 1 had called Dr. B. B. Goel for performing operation because he is well known cardiologist and he may not have got time to engage other doctors for performing small operation. Moreover, three relatives of Sh. Subhash Mahajan were in the trade of sale of surgical goods/equipments and as such must have known Dr. B. B. Goel and for this purpose, they engaged him to do surgery at the clinic of Dr. Ved Kumar Gupta or Dr. Ved Gupta had called him to perform surgery but there is no dispute about the competency of Dr. B. B. Goel to perform surgery by exploring abdomen as he was working as Professor of Surgery at Govt. Medical College, Amritsar. According to the operation notes, it was cholecystectomy. It was next contended by the complainant that pre-operative ABG findings were clearly suggestive of Respiratory Acidosis calls for which treatment was required before the patient should have been put under surgery which was not done and it was elective surgery and not an emergency one and further the patient was a chronic smoker and alcoholic. On the other hand, it was contended on behalf of Counsel for OP that Arterial Blood Gases ABG test was done twice after surgery and not before surgery i. e. 14. 4. 2001 at 7. 04 p. m. and mild acidosis was discovered because of under-ventilation which was properly treated before the second surgery was undertaken. The second ABG test was carried out on 15. 4. 2001 at 9. 50 a. m. after the second surgery which clearly revealed that the medical problem had been cured. Report of Advanced Lab Systems dated 14. 4. 2001 is at page 95 of the file while report dated 15. 4. 2001 is at page 100 regarding blood gas analysis and supported the contention of OPs 1and 3. On 14. 4. 2001 Oxygen saturation in the blood of Subash Mahajan was 95. 1 % but on 15. 4. 2001 it was 99. 4%.

He next contended on behalf of complainant that during first surgery Subhash Mahajan suffered respiratory and cardiac arrest and OPs were not competent and failed to revive the patient in time i. e. within five minutes which resulted into cerebral hypoxia leading to brain damage and thereafter Subhash Mahajan never regain consciousness till his death and further during operation, he was given three units of blood and this must have been given as some serious injury was caused to some major artery/aorta which sent the patient into a shock. On the other hand, it was contended on behalf of OP that Subhash Mahajan never suffered cardio respiratory arrest during surgery but only he had cardiac respiratory distress during post operative days which was properly attended and the patient was revived and then second surgery was done to stop the internal bleeding. They also contended that bleed was caused during the post operative period because of restlessness of the patient. It was quickly detected, attended and stopped by re-exploration and blood transfusion was given to make up for the loss of blood. They denied that there was any serious injury to major artery or aorta which sent the patient into shock. They further contended that the patient was given medical treatment with all best efforts by the most competent team of doctors but the patient unfortunately developed cerebral (brain) hypoxia, inspite of rapid resuscitation and this type of moderate bleeding does not lead to cerebral hypoxia in a normal person but since the deceased was a chronic smoker with chronic obstructive airway disease so he responded badly to this situation and attendants of the patient requested for his discharge and for taking him to D. M. C.-Ludhiana for further treatment and OP No. 3 was sent along with the patient to get him admitted in D. M. C. , Ludhiana and to avoid any untoward mishap in the transit.

THERE is no evidence on file that any serious injury had occurred to any major artery or aorta. Subhash Mahajan may have developed cerebral hypoxia leading to brain damage as he was chronic smoker and alcoholic but there does not appear any deficiency or negligence on the part of operating surgeons or attending doctors. It was next contended that in the death summary of D. M. C. , Ludhiana it was stated that biliary leakage led to biliary peritonitis leading to septicemia which showed incompelete surgery of gall bladder by an inexperienced and negligent surgeon and thus it was OPs who performed and created such a complicated situation. Of course, it is stated in the death summary of D. M. C. , Ludhiana which is at page 25-26 of the file that Subhash Mahajan had a impression of biliary leakage with possible biliary peritonitis but this impression occurred on the six post operative day. Thereafter the peritoneal drainage decreased and bowel sounds appeared and hence it cannot be said that the operative surgeon in the clinic of OP No. 1 had negligently performed operation and caused biliary leakage. The operating surgeon performed two operations and consent was duly given. He had remained admitted in D. M. C. , Hospital from 15. 4. 2001 till his death on 6. 5. 2001. It is just possible that he may have developed septicemia during his stay in D. M. C. , Hospital as he had developed right sided pneumonia during hospital course. It is true that according to prescription of Dr. Ved Gupta Hospital, Subhash Mahajan developed respiratory arrest and cardiac arrest but he was revived.

HE also contended that there was no ventilator with OP Nos. 1 and 2 and sufficient time was wasted in shifting to D. M. C. and in the meantime the patient went into coma. Of course, it is true that OPs did not have ventilator and for this reason, he was shifted to D. M. C. , Ludhiana for proper management but oxygen was provided to the patient by mask and on 15. 4. 2001 level of oxygen saturation was 99. 4 % which was best. There is no expert evidence on file that OPs were in any manner negligent in operating Subhash Mahajan or were further deficient in providing due care and caution. It is accepted that surgical operation involved some risk. A doctor is not guilty of negligence if he had acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. A doctor or hospital is expected to take reasonable care and they could not be condemned in case of misadventure. In the present case it cannot be said that there was lack of medical skill or they have not taken due and proper care in the administration of treatment. Simply because the patient had gone in coma or ultimately had died on this score, OPs cannot be condemned. It has been observed by this Commission in Parminder Singh v. General Hospital and Another, II (2005) CPJ 205=2005 (2) Con. LT 396, that medical opinion may differ with regard to 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 Courts find that he attended to the patient with due care, skill and diligence, then it would be difficult to hold the doctors to be guilty of negligence. In the present case also there is no evidence much less of medical expert to prove that OPs had not acted with due care, skill and diligence or had not properly performed the operation. Hence, the complaint is dismissed.

COPIES of this order be communicated to the parties, free of charge. Complaint dismissed.