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Facts in Short : 1. The instant Appeal is preferred by Mr. Kapil Aggarwal & Ors. the “Appellants/Complainants” against the impugned Order dated 31.10.2011 in Complaint No. 29 of 2011, passed by the Haryana State Consumer Disputes Redressal Commission (hereinafter referred to as the “State Commission”). 2. On 11.12.2009 the Complainant No. 1 admitted his wife, Mrs. Anita Aggarwal - the patient in the ‘Hospital’for the Complaints of excessive bleeding. She was examined by Dr. Arvind Kumar -Opp.no.2 and Dr. Pankaj Zuthsi - Opp. No. 3 and was advised for hysterectomy . The patient was also suffering from umbilical hernia. The doctors specifically informed that the patient’s condition was not suitable for two surgeries, which could prove fatal. 3. It was alleged that the Complainant was shocked to learn from the ICU bedside ticket that along with Hysterectomy, the surgery for hernia was also performed and no consent was given for hernia operation. Post operatively, the patient developed hypoxic encephalopathy. It was further alleged that in the ICU, Tracheostomy procedure was done for four times. It was further alleged that the patient was discharged from the Hospital on 15.02.2010 after cash payment of bill ₹2,50,000/-, but the discharge summary was issued on 27.02.2010. 4. It was also alleged that due to repeated X-ray & CT Scan, the patient received heavy doses of radiation, which led to fall in Hb% to 8.3 g% on 26.01.2010. The entire treatment was negligent which caused death of the patient. Being aggrieved, the Complainant filed the Complaint before the State Commission seeking compensation to the tune of Rs. 45,42,500/-. Defense of the Opponents. 5. The Opponents denied the allegations of medical negligence. Alongwith the preliminary objections on maintainability of the Complaint, it was further submitted that the patient was admitted in the Opposite Party No. 1 hospital on 11.12.2009 with the history of excessive bleeding per vaginum since one month and she had umbilical hernia. It was submitted that after the relevant investigations, her TLH (Total Laparoscopic Hysterectomy) was performed by the concerned Doctors after taking the high risk consent because of patient’s comorbid conditions. It was further submitted that during the laparoscopic TLH procedure at the time of removal of umbilical port, closure/repair of hernia is mandatory as per standard of practice. It was not the operation of hernia, wherein no mesh and / or trackers were used. The Opposite Party No. 2 only closed the umbilical defect. All the Std Operative procedure was followed.
Held : 1. The hon. NCDRC Commission observed that after going through the medical record inter alia the inquiry report issued by General Hospital, Sector-6, Panchkula, that as per the patient’s condition and the investigations, the doctors planned for Laparoscopic Total Hysterectomy. Further, Pre-operative USG revealed Post Cholecystectomy status with Grade-II fatty liver changes, left Renal cyst, right Para Umbilical Hernia and intramural fibroid in the anterior wall of uterus. It was observed that the Patient tolerated the procedure well & post-surgery, patient was stable & was shifted to ward. Post-operatively antibiotics & other supportive drugs were given. 2. However, on 14.12.2009, the patient had sudden respiratory distress & was immediately shifted to ICU where she as intubated & put on ventilator support. CPR was done for 10 minutes and the patient was revived. The patient’s general condition was very critical, patient developed encephalopathy and Galsgo Coma Score (GCS) was E2M4Vt. 3. It was observed that the patient was attended regularly by the physician and regular physiotherapy was given. Regularly investigations & X-rays were done and patient was managed accordingly. On 21.12.2009 Tracheostomy was done, but due to obesity, it was difficult. On 27.12.2009, the patient was weaned off from the ventilator & put on T-piece with O2 supply but the general condition was same. In ICU, two units of packed RBC were transfused as patient was anaemic (Hb-7.2gm%). On 01.01.2010, the patient again had respiratory distress & was put on ventilatory support. On 04.01.2010 patient was again weaned off from ventilator & put on T piece with O2 the GCS status was still E2M2Vt. The patient was started with Ryle’s Tube feeds. The diabetes (DM Type-II) was managed with regular blood sugar monitoring & Insulin injections. The patient developed ankle bed sores, though adequate measures like air bed & DVT pump were provided. Regular dressing of bedsore was done. On 25.01.2010, the patient was shifted to ward with status quo condition and patient was discharged on 15.02.2010. 4. As per the medical literature on laparoscopic hysterectomy surgeries, during the laparoscopic procedure umbilical port is used, and after TLH, at the time of removal, the umbilical port shall be closed. In the instant case, admittedly, the patient had umbilical hernia, in our view, the method adopted by the Surgeon was correct. Moreover, knowing the morbid obesity and other comorbidities, the operation was performed after obtaining high risk consent. It was thus observed that it was TLH only and not the second surgery for the repair of hernia as no mesh and/or trackers were used for Umbilical Hernia repair surgery. 5. the Hon. Commission turned down the allegations of post-op medical negligence. . and held that in our view, both the procedures were performed as per standard of practice. Unfortunately, the patient developed serious complications post-operatively, which were promptly treated by the team of doctors, as discussed supra (para 12). The State Commission obtained an expert opinion from the Special Medical Board, which categorically opined that negligence cannot be attributed to the team of doctors at the Opposite Party No. 1 - Hospital. 6. As they would, the Commission yet again relied upon the important judgment of . the Hon’ble Supreme Court on medical negligence. In the case of Achutrao Haribhao Khodwa & Others V State of Maharashtra & others[(1996) 2 SCC 634], the Hon’ble Supreme Court noticed that: “in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. The Hon’ble Supreme Court also held that every mishap shall not be construed as a negligence of the treating doctor or the hospital to fasten the liability the Commission has yet again emphasised the important principle of Law that "every mishap shall not be construed as a negligence of the treating doctor or the hospital to fasten the liability". Such judgments will act as the moral booster of the Doctors. No doubt, no amount of money can replace the beloved which is lost. But it is also not correct to held doctors responsible for the same as if they did it intentionally.
With kind regards
(Adv. ROHiT ERANDE) Pune.© |
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