NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 732 OF 2010
 
(Against the Order dated 17/11/2009 in Appeal No. 1298/2006 of the State Commission Delhi)
1. VIMHANS HOSPITAL & ANR.
Through its Chief Administrative Officer Dr. (Gen.) R.P. Arora, 1, Institutional Area, Nehru Nagar
New Delhi
Delhi
2. DR. (PROF.) A.K. BANERJI, VIMHANS H HOSPITAL
1, Institutional Area, Nehru Nagar
New Delhi
Delhi
...........Petitioner(s)
Versus 
1. ANAND KUMAR JHA & ORS.
226, GF, Shaktikhand - 4, Indrapuram
Ghaziabad - 201 014
U.P.
2. THE ORIENTAL INSURANCE CO. LTD.
Jeevan Bharti, Tower No. 1, 124, Connaught Place
New Delhi
Delhi
3. THE NATIONAL INSURANCE CO. LTD.
Jeevan Bharti, Tower No. 2, Connaught Place
New Delhi
Delhi
...........Respondent(s)

BEFORE: 
 HON'BLE MR. DR. S.M. KANTIKAR, PRESIDING MEMBER

For the Petitioner :
For Petitioner No.1 : Mr. A.K. Hajelay, Advocate
For Petitioner No. 2 : Mr. V. K. Malik, Advocate
For the Respondent :
For the Respondent No. 1 : Mr. Anand Kr. Jha & Mr. B. Shekhar, Advocates
For the Respondent No. 2 : Ms. Harsh Lata & Ms. Manjusha Wadhwa, Advocates
For the Respondent No. 3 : Dr. S. K. Gupta, Advocate

Dated : 19 Mar 2015
ORDER
  1. The brief facts are that the complainant, Mr. Anand Kumar Jha’s mother, Smt. Meera Jha, the patient (since diseased) was admitted in Vimhans Hospital- OP-1 on 17.07.2004 for complaint of neck pain since 4 years. The OP-2 Dr. A.K. Banerji, a Neuro Surgeon diagnosed her as a case of Cranio-Vertebral Junction Anomaly i.e. Atalanto Axial Dislocation (AAD). The OP-2 assured the complainant and the patient that she will be cured within two weeks after the operation. The operation was performed on 20.07.2004 by OP-2, but the patient did not get any relief. She was unable to move any limb and then whole body got paralyzed, which was due to the unhygienic conditions in the ward. OP-2 tried with different medicines, but no avail. On the morning of 16.08.2004, the patient had chest pain, vomiting and breathing problem for which the doctors did not attend immediately. She was shifted to ICU at 8-50 A.M. and was declared as dead at 1-20 P.M.  Hence, alleging the deficiency in service during the treatment and during the post-operative period, the complainant filed a complaint before the District Consumer Disputes Redressal Forum, Delhi, (in short, ‘District Forum’).
  2. The District Forum allowed the complaint and held the OP liable to compensate for the death of patient and awarded Rs.5,00,000/- as compensation which shall be payable by the OPs-1 & 2 in equal shares.
  3. Against the order of the District Forum, the OPs filed the First Appeal No. 1298/06 before the State Consumer Disputes Redressal Commission, Delhi (in short, ‘State Commission’). The State Commission dismissed the appeal. Therefore, the petitioners approached here by the way of Revision Petition.
  4. We have heard counsel for the parties. The argument advanced by the counsel for the complainant is that there was total negligence, OP-2 did not examine the patient properly, he never explained either to complainant or to the patient about the mode of treatment and the complications of operation. He gave an oral assurance of complete recovery and cure, after operation. The junior doctors were attending the patient; Dr. Banerji left the Surgery in between, which was pointed out by the son of patient i.e. the complainant. Post-operatively, she was given high doses of steroid which caused Psychosis. The patient suffered quadriparesis after operation, which was not there, previously. Further, she was not a heart-patient, but due to negligence, she suffered cardio-respiratory arrest and subsequently, passed away in the hospital. Therefore, both the Fora below have given the correct findings of negligence in this case. Hence, the Revision Petition should be dismissed.
  5. On behalf of OP-2 Dr. A.K. Banerji, learned Counsel Ms. Harsh Lata & Ms. Manjusha Wadhwa appeared and argued that there was no negligence on the part of OP-2, he is highly reputed and senior Neuro-Surgeon in New Delhi. There are no lapses during the operation. The patient was already suffering from weakness in the limbs and neurological problems prior to the operation. OP-2 had not assured the patient of the cure. The learned counsel Mr. Anand Kr. Jha for OP-1/petitioner -1, vehemently argued that the hospital is well equipped, having best Neurosurgeons, the treatment given, was proper. There was no delay in shifting the patient to the ICU, as alleged by the complainant, but the patient was shifted to ICU within half an hour after the episode of chest pain. There was no unhygienic condition in the hospital, which could cause any infection.
  6. The file from District Forum was also requisitioned. I have perused the file. From the entire medical record, it transpired that the complainant himself, placed one Spiral NCCT report of Craniovertebral junction, of Dr. Rajiv Gupta dated 5.6.2003 which was done prior to admission in OP-1 hospital which reveals the findings suggestive of instability with sub-luxation of atlanto-axial joint and osseous fusion of the posterior elements of C1 and C2 vertebra. Again, the Delhi MR & CT Scan Center (MRI Report) reported the same. The OP-2 had conducted necessary investigations and took a decision to conduct the operation. As per medical notes, there was clinical history that the patient was suffering from pain and altered sensations. Post-operatively, the patient developed quadri-paresis and steroid induced psychosis and superficial wound infection at operative site. These are the known complications and sequel of surgery, hence, in my view, it was not negligence, OP-2 took utmost care during the entire treatment of the patient, but unfortunately, developed complications, after surgery. Subsequently, almost, after 25 days of operation, patient suffered sudden respiratory distress, she was shifted to ICU, there she developed cardiac arrest and expired.
  7. I have specifically asked the Counsel for OP-2 about “informed consent.” He has admitted that there is signature of resident/junior doctor who obtained signatures on consent form from the patient and her relatives. He further submitted that the form was not filled properly, it was a technical lapse and is in no-way concerned with the treatment of patient. The OP-2 performed his duty with conscious and care.
  8.  It should be borne in mind that, any neurosurgery is a major surgery, which involves high risk; thus no doctor will give assurance to the patient.   Dr. A. K. Banerji, Head of the surgical team, has over 40 years’ of neuro-surgical experience who also served in AIIMS, New Delhi. Therefore, I don’t agree that, OP-2 kept the patient in dark. In this case, it was a major neurosurgery, certainly OP-2 would have discussed/counseled about the seriousness of disease and the pros and cons of surgery with the patient or her relatives. For example, it will be illogical to think, that the cardiac surgeon performs a by-pass (CABG) without discussing with patient about risks and benefits of CABG procedure. Thus, similarly in this instant case, the OP certainly had discussion with the patient about the surgery, thus it was an oral informed consent. The incomplete or not correctly filled consent form for surgery, appears to be a mere omission and not a major negligence in this case. The complainant was not a lay person, the duty of prudence and care was also casted upon him. It was a planned surgery and there was no force from the OP-2 for the patient to undergo surgery.
  9. It is necessary here to view the concepts of Ordinary negligence and Gross negligence.

“Ordinary” negligence means that the individual providing aid did not act as a reasonable health care provider would under similar circumstances. Contrast that with “gross” negligence, which generally means not only that the individual did not conform to the accepted standard of care, but also that his or her actions rose to the level of being willful, wanton or even malicious.

          In this context , about stringent standards of informed consent, I would like to rely upon the Hon’ble Supreme Court’s observation in Samira Kohli vs. Dr. Prabha Manchanda & Anr., (2008) 2 SCC 1, the relevant paras are as follows;

22. The stringent standards regarding disclosure laid down in Canterbury, as necessary to secure an informed consent of the patient, was not accepted in the English courts. In England, standard applicable is popularly known as the Bolam Test, first laid down in Bolam v. Friern Hospital Management Committee - [1957] 2 All.E.R. 118. McNair J., in a trial relating to negligence of a medical practitioner, while instructing the Jury, stated thus:

"(i) A doctor is not negligent, if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.  Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.

(ii) When a doctor dealing with a sick man strongly believed that the only hope of cure was submission to a particular therapy, he could not be criticized if, believing the danger involved in the treatment to be minimal, did not stress them to the patient.

(iii) In order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment.

But, in this instant case, as, there was no negligence during surgery, the operation of CV junction anomalies are very critical and delicate, there will be always risk. The cause of death was neither due to surgical complication nor due to any negligence. The patient and her son signed the Consent Form, it was also signed by one doctor, but there was no mention of doctor’s name. Consent is a very important aspect in such like cases. If we ignore it totally, it will trend to flare up such like tendencies and would set up a wrong precedent. Consequently, proper consent, in writing, must be taken from the patient/relatives of the patient. Also, when a major surgery is going to be conducted, the patient must be informed about its consequences. In the instant case, the consent form was signed by the patient/ complainant, without filling up the necessary blanks and without striking off the unwanted columns. Therefore, this appears to be an improper/ defective consent. However, keeping in view of the facts and circumstances of this case, I take a lenient view and impose costs of Rs.50,000/- on the Petitioner, VIMHANS Hospital, and direct it to pay  the same to the complainant, within 90 days’ from the date of receipt of copy of this order, otherwise, it will carry interest @ 9% p.a., till realization. Accordingly, the insurance company shall indemnify the petitioner/OP, as per law. The revision petition is disposed of.

 
......................
DR. S.M. KANTIKAR
PRESIDING MEMBER