(Appeal against the order dated 10.11.2006 passed by District Forum-II, in complaint case no386/2005)





1. VIMHANS Hospital

1, Institutional Area,

Nehru Nagar,

New Delhi.

Through Its Chief Administrative Officer

Dr. (Gen.) R.P. Arora



2. Dr. (Prof.) A.K. Banerji,

VIMHANS Hospital

1, Institutional Area,

Nehru Nagar, New Delhi



…..Appellants/OPs.

Through

Sh. V.K. Malik and Sh.

Chandan Singh, Advocates.


VS



1. Anand Kumar Jha,

D-121, A, Shakarpur,

Delhi.



2. The Oriental Insurance Co. Ltd.,

Jeevan Bharti,

Tower no. 1, 124, Con. Place,

New Delhi.



3. The National Insurance Co. Ltd.,

Jeewan Bharti,

Tower no. 2, Con. Place,

New Delhi.



……Respondent/complainant

Through

Sh. Mohan Parkash Aggarwal, Advocate

CORAM



Justice Barkat Ali Zaidi, President.

M.L. Sahni, Member





1. Whether reporters of local newspaper be allowed to see the

judgment?



2. To be referred to the reporter or not?





M.L. SAHNI, MEMBER



1. This Appeal by OP-1,VIMHANS Hospital and OP-2 , Dr. A.K. Banerji (hereinafter referred to as Appellant no. 1 & 2 respectively) is directed against the order dated 10.11.2006 passed by the Ld. District Forum-II, New Delhi in complaint case no. 386/2005.

2. Briefly stated, the facts of the case , are that Smt. Meera Devi, mother of the complainant (hereinafter referred to as Respondent) was admitted in the Appellant-1 hospital on 17.7.2004 under the care of Appellant-2 with the complaint of neck pain for about 4 years. After investigation the deceased was diagnosed as Cranio-Vertebral Junction Anomaly (Atlanto Axial Dislocation) and suspected Pulmonary Embolism. Appellant-2 advised surgery for posterior decompression and occipital-C 2 fixation with titanium cables. According to the complainant, who is the son of the deceased , he was assured verbally by the Appellants that the patient would be fully cured within 2 weeks of operation. The operation was admittedly conducted by Appellant-2 Dr. A.K. Banerji, a neurosurgeon on 20.7.2004 at Appellant-1 hospital. After the operation medicines were allegedly changed frequently by the doctors and the patient started feeling nervous after administration of medicines. It is alleged by the Respondent that the patient became unable to move any limb and then whole body got paralysed ; that due to unhygienic conditions in the ward the patient’s conditions was adversely affected ; that in the morning of 16.088.04 the patient complained of chest pain, vomited and also suffered breathing problem ; that the doctors did not attend to the patient immediately and ultimately the patient was shifted to ICU at 8.50 a.m. where she was declared dead at 1-20 p.m.

3. Both the Appellants contested the complaint. In their respective replies filed before the District Forum, they denied the allegations of negligence or unhygienic conditions. It was also deined that Dr. Banerji left surgery to his junior doctors. The defence taken by the Appellant is that in addition to neck-pain the patient also had weakness in the left half of the body as well as numbness on the left side as per examination on admission to the hospital and that the weakness and numbness of the whole body increased considerably after the surgery which is known complication of this type of surgery. It has been further stated that this possibility was explained to the patient’s relatives before surgery. It has been further stated that post-operatively the patient was put on high dose of steroids and Methyl prednisolone because of deterioration of her condition. She started showing improvement . Power in her legs also improved. Later, she developed behavioural changes which were diagnosed as steroid psychosis, a known complication of steroid therapy. Therefore, steroids were stopped by Dr. Banjerjee and she recovered. It has been further stated that patient’s condition deteriorated suddenly on the morning of 16th August, 2004 and she had sudden onset of respiratory distress. She was immediately shifted to ICU where she suffered a cardio-respiratory-arrest. Despite, all efforts she could not be resuscitated and expired.

4. After hearing both the contending parties and examining the material on record, the District Forum, concluded that since the patient did not have any history of heart problems before the surgery and had only limited mild hemiparesis on the left side, the onus shifted on the Appellants to show and explain that the quadripareses and cardiac arrest did not occur due to any negligence on their part. The Appellants have simply stated that the attack of quadriparesis is the common complication of the procedure conducted on the complainant. However, there is no evidence to prove this defence of the Appellants. After the surgery the deceased suffered quadriparesis. This shows that something seriously went wrong during the surgery. She also suffered steroid induced psyschosis. The deceased was not suffering from any heart problem before the surgery. She suffered the cardiac-arrest due to traumatic experience she had underwent during the surgery. To absolve themselves of any medical negligence on their parts Appellants have not given satisfactory explanation .

5. The Ld. District Forum, further observed regarding the consent Form that, “to us it is clear that this is a general proforma which is got signed by the Appellants from all patients in routine before surgery etc. In this form even the name of the surgery has not been mentioned by the doctor, what to say of the risks involved. In these facts and circumstances of the case we hold that the partient and her attendant were not informed by the Appellants of the risks involved in the surgery and the consent in question does not amount to “informed consent”.

6. Considering the facts and circumstances of the case, the Ld. Forum held both the Appellants guilty of “deficiency of service” and directed them to pay in equal shares to the complainant and other legal heirs of deceased Smt. Meera Jha a sum of Rs. 5,00,000(Five lacs), which included cost of litigation as well, in their joint name.

7. Aggrieved by these directions, the Appellants have come before us in appeal, impleading the two Insurance Companies , namely Oriental Insurance Company Ltd., as Respondent-2 and the National Insurance Co. Ltd., as Respondent-3. Both of them were never the parties before the Ld. District Forum in the complaint.

8. We have heard the Ld. Counsel for both the Appellants and Appellant no. 2 in person also . We have also heard the Ld. Counsel appearing on behalf of the Respondent No. 1 – the complainant . However, the Ld. Counsel who appeared on behalf of Respondents No. 2 and 3 were not heard, though they were present in response to the Notice issued inadvertently to them having been named as parties, in this appeal, ignorant of the fact that they were not the parties in the original complaint.

9. On behalf of the Appellants, it has been submitted, that there is neither any medical opinion nor any medical report stating any sort of negligence or any act of omission on the part of the Appellant no. 2 which could be suggestive of any negligence of any nature whatsoever nor any deficiency is either alleged or pleaded; that the doctors of Appellant No. 1 including the Appellant no. 2 are highly experienced and well-known in the field of neuro-surgery; that doctors take no risk, a justifiable risk in the circumstances of a given case, and always try to save the patient from a complicated disease or in the face of an unexpected problem that confronts during the treatment or the surgery.

10. Referring to the written statement filed before the District Forum, the Appellants pointed out, that at the time of admission the patient was having pain in the neck and the patient had also weakness in left half of the body as well as numbness on the left side as per examination on admission to the hospital. Further they submitted that the patient was throughout under observation of the Appellant No. 2, Dr. A.K. Banerjee with his team of neuro surgeons who are fully trained and experienced in the field of neuro surgery. After the surgery the patient suffered weakness and numbness in the whole body and it increased considerably , which is a known complication of this type of surgery and occurred despite all precautions taken by the treating team.

11. Assailing the impugned order, it is contended that though the Appellants in their written statement specifically pleaded that the Appellants are duly covered under the professional indemnity cover and the insurance particulars with name of the Insurance Companies were duly provided in para 5, yet the Ld. District Forum, for the reasons best known to it, choose not to issue notice to the respective Insurance Companies.

12. Finally , it is the case of the Appellants, that negligence is no-where proved in any manner either by way of evidence or by way of documents or vide any report , but the Ld. District forum held them guilty of deficiency-in-service on the basis of surmises and conjectures.

13. The Ld. Counsel for the Appellants have also referred to case-law including the celebrated decision of the Apex Court in the case of Jacob Mathew Vs State of Punjab and Harayana (2005) 6 SCC page-1, wherein the terms, “ Professional Negligence” and “ Medical Negligence”, have been discussed thread-bare, in detail. Their lordships pointed out the considerations, which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These considerations are (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds (ii) that patients will be better served if the real cause of harm are properly identified and appropriately acted upon and (iii) that many incidents involve a contribution from more than one persons, and the tendency is to blame the last indentifiable element in the chain of causation, the person holding the “smoking gun”.

14. We have examined the material on record and carefully perused the impugned order. The Ld. District Forum, has based its findings on the oral testimony of the complainant/Respondent No. 1 and sought corroboration thereto from medical record of the deceased , initially prepared by Dr. Ajay Sinha, of the Appellant/Hospital.

15. What weighed on the mind of the Ld. Forum to hold that the Appellants are deficient-in-service, is the Death-Summary dated 16.08.2004 of the deceased. According to this document, the patient had developed “quardiparesis” & she was initially treated with Methyl prednisone and aggressive physiotherapy. Administration of steroid induced psychosis resulting in abnormal discomfort and low grade fever. Operated site developed infection in the wounds. Daily dressing had to be done to manage this infection. In the morning on 16.08.2004 deceased suddenly developed respiratory distress. Patient therefore, had to be shifted to ICU . She suffered cardiac- arrest at 8.45 am and breathed her last at 1.20 p.m.

16. In his oral testimony, the Respondent stated that when the deceased was taken to the Appellant hospital, she had complained of pain in the neck only. After examining the patient by Dr. Ajay Sinha, on 16.07.2004, she was diagnosed a case of AAD. She was declared fit provisionally for surgery under general anesthesia. When again examined on 19.7.2004, patient had no history of weakness or trauma. Neck movement was also found normal and Blood pressure was also within normal limits. Echo and Doppler reports were also normal, suggesting that deceased had no cardiac problem. Her conditions deteriorated only after surgery and according to the OPs/ Appellant death of the mother of Respondent was due to rare complications.

17. From the above facts it can be safely concluded that complications leading to the death of the patient did occur after surgery.

18. In the very judgment relied upon by the Appellants in the case of Jacb Mathew (Supra) it has been laid down , that , “ Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do . Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence, as recognized, are three : “duty”, “breach”, and “resulting damage”, that is to say

(1) The existence of a duty to take care, which is owed by the defendant to the complainant.

(2) The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty ; and

(3) Damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant”.



19. In the present case, all these three ingredients are satisfied , and hence the Appellants have been rightly held liable by the Ld. District Forum.

20. We find the impugned order well reasoned and perfectly justified, suffering from no infirmity, calling for any interference by this Commission. We fully agree with the findings recorded by the Ld. District Forum.

21. The appeal being devoid of merit is , therefore, dismissed.

22. FDR , if any, deposited by the appellant, be released in their favour after completing due formalities.

23. A copy of this order as per statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and , thereafter , file be consigned to Record Room.