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Pronounced on : 06th June 2023
Brief Facts
:
1. Dr. Om Prakash Agarwal – the Cardiologists
himself - is the Complainant, Metro
Hospital & Heart Institute is referred to as OP-1, Dr. Harinder Singh Bedi
is referred to as OP-2, & Oriental Insurance Co. Ltd.is referred to as
OP-3.
2. The issue involved alleged medical
negligence in which the Complainant-Dr. OM Prakash Agarwal, a cardiologist,
On 02.08.2003 visited Metro Hospital & Heart Institute for a cardio routine
check-up. He alleged that he underwent bypass surgery without his consent. The
Patient was discharged from the hospital on 18.08.2003.
After 7 years, in November 2010,
the Patient began experiencing unbearable pain on the left side of his
chest and consulted a doctor who advised a chest X-ray. According to the
Complainant the chest X-ray report revealed the presence of
Sternotomy sutures and foreign bodies like soft tissue staples + Curved
metallic shadow seen in the left lower zone and later discovered that
foreign objects, including needles and pins, were left in his chest during
the surgery. The patient experienced severe pain and consulted multiple
doctors who confirmed that the needle could only be removed through a risky
surgery.
3. The Opponents denied any
negligence. It was contended that the patient was himself Cardiologist. It
is evident that the cause of action arose in 2003 and the complaint was
filed after delay of 7 years. The medical record is already destroyed after
5 years. The X-Ray report, on which the complaint relied did not
conclusively prove it as any foreign object near to the heart.
OPs further submitted that the staples and sutures remained in
the body without causing any problems or pain, and complainant would not
suffer any harm as a result of their presence.
Held :
1. At the outset, to resolve the
controversy, whether it was a metallic foreign body, vide the Order
dated 14.12.2022 the complainant was directed to undergo CT Scan of
the chest with or without contrast from any medical college
(Govt./private) and get the report along with films and the CD recording.
Accordingly the as directed by this Commission the
Complainant Dr. Om Prakash Agarwal underwent CT Scan at
Shri Ram Murti Smarak Institute of Medical Sciences and filed the CD
along with CT films and reports.
2. The
crux of the instant case is whether it was a metallic object (? surgical
curved needle) as misplaced in the chest-wall during CABG performed in
past. After examining the CT scan
films and the CD, but it was not convincing that the object was a curved
needle. Moreover, the needles are sharp and by any stretch of
imagination, such foreign body certainly will not remain in chest for long
7 years without any symptoms.
3. The Court relied upon the Doctrine of the “Discovery Rule” as observed by
the Hon’ble Supreme Court in the case of V.N. Shrikhande vs. Anita Sena
Fernandes (2011) 1 SCC 53, wherein it was held that the limitation
period should be calculated from the date of surgery and not from the date
when the complainant became aware of the foreign object.
4. The NCDRC rejected the
reasoning of State commission while allowing the part claim wherein it was
held by the state commission that the Two X ray reports show that the
particle of metal are present even today near heart in the body of the
complainant and this fact is it self an evidence to prove the deficiency of
service and shows the medical negligence on behalf of the respondents.
It is indeed a unique case. The
Cardiologist himself alleging that his bypass surgery was performed without
his consent and after 7 years of the surgery he complained that
needles and pins remained near his heart, at the time of surgery, are
really difficult to digest. Remember, if the qualified Doctor is making
these allegations, the common patients may take it as a Trend.
thanks and regards, Adv. ROHiT ERANDE. ©
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