Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Appeal No. 716 of 2013

Dr. Neena Saxena, adult posted at Sewa

Hospital and Research Centre, Sewa

Nagar, Sitapur Road, Lucknow.                          …Appellant.

Versus

1- Shailesh Tripathi aged about 24 years,

    S/o Late Sri Suresh Chandra Tripathi,

    R/o Village and Post Aurangabad,

    District, Lakhimpur Kheri.

2- Piyush Tripathi aged about 20 years,

    S/o Late Sri Suresh Chandra Tripathi,

    R/o Village and Post Aurangabad,

    District, Lakhimpur Kheri.

3- Rahul Tripathi aged about 18 years,

    S/o Late Sri Suresh Chandra Tripathi,

    R/o Village and Post Aurangabad,

    District, Lakhimpur Kheri.

4- Sewa Hospital and Research Centre

    through Director, Sewa Nagar, Sitapur

    Road, Lucknow.

5- Harman Hospital through Director,

    37, Cant Road, Burlington Crossing,

    Lucknow.

6- M/s Docland Services Ltd., Capital

    Cinema Building, Vidhan Sabha Marg,

    Lucknow.

7- United India Insurance Co. Ltd.,

    Branch No.4, Gole Market, Mahanagar,

    Lucknow.                                                   .…Respondents.

Appeal No. 806 of 2013

Sewa Hospital and Research Centre

Through its Director/Administrator,

Sewa Nagar, Sitapur Road, Lucknow.               …Appellant.

Versus

1- Shailesh Tripathi aged about 24 yrs,

    S/o Late Sri Suresh Chandra Tripathi,

    R/o Vill. and Post Aurangabad,

    Distt., Lakhimpur Kheri.

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2- Piyush Tripathi aged about 20 yrs,

    S/o Late Sri Suresh Chandra Tripathi,

    R/o Vill. and Post Aurangabad,

    Distt., Lakhimpur Kheri.

3- Rahul Tripathi aged about 18 yrs,

    S/o Late Sri Suresh Chandra Tripathi,

    R/o Vill. and Post Aurangabad,

    Distt., Lakhimpur Kheri.

4- Harman Hospital through its Director/

    Administrator, 37, Cantonment Road,

    Burlington Crossing, Lucknow.

5- Dr. Neena Saxena (Woman Disease

    Specialist), Obstn. & Gynaecologist,

    Sewa Hospital and Research Centre,

    Sewa Nagar, Sitapur Road, Lucknow.            .

6- United India Insurance Co. Ltd.,

    Branch No.4, Gole Market, Mahanagar,

    Lucknow.                                                   .…Respondents.

and

Appeal No.760 of 2013

1- Shailesh Tripathi s/o Late Sri Suresh Chandra

    Tripathi aged about 32 years,

    R/o Village and Post Aurangabad,

    Distt., Lakhimpur Kheri.

2- Piyush Tripathi s/o Late Sri Suresh Chandra

    Tripathi, aged about 29 years,

    R/o Village and Post Aurangabad,

    Distt., Lakhimpur Kheri.

3- Rahul Tripathi S/o Late Sri Suresh Chandra

    Tripathi, aged about 26 years,

    R/o Village and Post Aurangabad,

    Distt., Lakhimpur Kheri.                            …Appellants.

Versus

1- Sewa Hospital and Research Centre,

    Sewa Nagar, Sitapur Road, Lucknow

    through its Director/Administrator.

2- Dr. Neena Saxena (Gynaecologist),

    W/o Dr. Anant Saxena, R/o C-21,

    Sector P, Aliganj, Luclnow.

3- Harman Hospital,  37, Cantt. Road,

    Burlington Crossing through its. Director/

    Administrator.

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4- The United India Insurance Co. Limited.,

    Branch Office 4, 16-N, Gole Market,

    Mahanagar, Lucknow.                              .…Respondents.

Present:-

1- Hon’ble Sri Sushil Kumar, Member.

2- Hon’ble Sri Vikas Saxena, Member.

Sri Manish Mehrotra, Advocate for Sewa Hospital.

Sri Aurn Tandan, Advocate for Dr. Neena Saxena.

Sri Anand Bhargawa, Advocate for complainants

Shailesh Tripathi,  Piyush Tripathi and Rahul Tripathi.

Ms. Alka Saxena, Advocate for United India Insurance Co.

Date  5.1.2023

JUDGMENT

Per Sri Vikas Saxena,  Member- The above appeals are connected to each other and arising out from one and the same judgment, hence these are being decided together.

          The appeal no.716 of 2013 has been filed by the opposite party no.2, Dr. Neena Saxena against the judgment and order dated 26.2.2013 passed by the Ld. District Consumer Forum-II, Lucknow in complaint case no.552 of 2005, Sailesh Tripathi & ors. vs. Sewa Hospital & Research Centre & ors., whereby the ld. District Consumer Forum allowed the complaint and directed the opposite parties no.1 & 2, Sewa Hospital & Research Centre and Dr. Neena Saxena to pay a sum of Rs.4,00,000.00 as compensation, expenses, mental agony and cost alongwith interest @ 9% p.a.    

The appeal no.806 of 2013 has been filed by the opposite party no.1, Sewa Hospital and Research Centre against the judgment and order dated 26.2.2013 passed by the Ld. District Consumer Forum-II, Lucknow in complaint case no.552 of 2005, Sailesh Tripathi & ors. vs. Sewa Hospital & Research Centre & ors., whereby the ld. District Consumer

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Forum allowed the complaint and directed the opposite parties no.1 & 2, Sewa Hospital & Research Centre and Dr. Neena Saxena to pay a sum of Rs.4,00,000.00 as compensation, expenses, mental agony and cost alongwith interest @ 9% p.a.  

The appeal no.760 of 2013 has been filed by the complainants Sailesh Tripathi & 2 others  against the judgment and order dated 26.2.2013 passed by the Ld. District Consumer Forum-II, Lucknow in complaint case no.552 of 2005, Sailesh Tripathi & ors. vs. Sewa Hospital & Research Centre & ors. for enhancement.  

The appellant Dr. Neena Saxena filed the appeal no.716 of 213 against the judgment and order dated 26.2.2013 by which the complaint has been allowed on the ground that there is a deficiency in service on the part of the appellant as well as respondent Sewa Hospital. The brief facts of the case are that the complainants/respondents no.1 to 3 filed the complaint against the appellant and other respondents alleging that their mother Smt. Usha Tripathi was admitted in the hospital on 8.8.2003 where the appellant done operation after which she died on 21.8.2003.

The appellant and other respondents/opposite parties properly contested that case and contended that there is no deficiency in services on the part of the appellant as well as Sewa Hospital but the ld. District Forum discarded all the denials of the appellant as well as Sewa Hospital and allowed the complaint for Rs.4,00,000.00 alongwith interest @9% p.a.

The impugned judgment and order has been challenged by the appellant Dr. Neena Saxena on the ground that the ld. District Forum erred in law and fact in not appreciated the

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fact that before operation proper consent was obtained by the appellant and the pros and cons of the operation was duly informed to the respondents/complainants. The ld. District Forum erred in law and fact in not appreciating this fact that the complaint case is time barred which is filed after two years from the date of cause of action as the alleged negligence was alleged to have been cause on 8.8.2003 whereas the complaint has been filed on 16.8.2005 which is beyond 2 years which is contrary to the provisions of Section 24-A of the Consumer Protection Act, 1986. The ld. District Forum did not appreciate that Dr. Neena Saxena is a qualified Gynocologist having several years experience and has been attached to the Sewa Hospital & Research Centre for the last 11 years. The complainant no.1 has lodged an FIR inter-alia alleging therein that all the opposite parties had caused death of the patient by negligent act. The said FIR was registered at Crime no.295 of 2003 under section 304 IPC with the P.S. Qaiserbagh, Lucknow and the police after investigation did not find any wrong on the part of the any opposite parties including the appellant. The ld. Forum did not appreciate the fact that the complainant no.1 on 7.8.2003 consulted with the appellant Dr. Neena Saxena along with previous prescriptions of his mother Smt. Usha Tripathi for surgery i.e. Panhysterectomy which was urgently required due to continuous heavy bleeding as such the necessary tests were done and she was operated upon on 8.8.2003 and during the operation when uterus was out Haemostasis was maintained but the patient has a cardiac arrest. Anaesthetist asked to withhold surgery for a while meanwhile patient was maintained by the Anaethetist. As patient was settled the

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Anaesthetist asked to complete the surgery then abdomen was closed in layers land the patient was shifted to ICU of Sewa Hospital and Cardiologist & Neurophysician were called who advised for mechanical vantilatory support which was not available at Sewa Hospital as such the attendents were asked to shift the patient for ventilator support to other hospital and the patient was shifted to Harmain Hospital, Lucknow on 8.8.2003.

          The ld. District Forum did not refer the case for any expert’s opinion as such in the absence of any expert’s opinion no such order adverse to the appellant could be passed by the ld. Forum. As such the impugned order is no liable to be maintained and is liable to be quashed.  The judgment and order passed by the ld. Forum is illegal, arbitrary and against the law, passed on surmises and conjectures and not on any cogent reasons because the ld. District Forum has passed the impugned order in a slip shot manner. Hence, the impugned judgment and order is liable to be quashed.   

          The appellant Sewa Hospital filed appeal no.806 of 2013 against the impugned judgment and order similarly on the grounds which are taken in appeal no.716 of 2013.

          The appeal no.760 of 2013 has been filed by the complainants with the prayer that this Hon’ble Commission may kindly be pleased to enhance the amount of compensation  from 4,00,000.00 to Rs.19,58,854.00 with 18% interest.   

We have heard the counsel for the parties and perused the impugned judgment and order.

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It is given in the impugned judgment that the postmortem report of Mrs. Usha Tripathi gives cause of her death as "due to cardio respiratory failure as a result of ante-mortem Pulmonary embolism". A copy of the post mortem report is annexed with the complaint as annexure-7. The learned district consumer Commission arrived at the conclusion and also as asserted by the complainants that this pulmonary embolism was caused due to medical negligence of the surgeon who conducted the surgery and the doctor and the hospital staff and doctors attending the patient are guilty of medical negligence, due to which this pulmonary embolism was developed during the surgery. Therefore first we have to see what is the “pulmonary embolism” and what are the reasons which give rise to this medical condition. It is defined in John Hopkins medicine that: -

A pulmonary embolism is a blood clot that develops in a blood vessel in the body, often in leg. It then travels to a Lung artery where it suddenly blocks blood flow.

This is further given in the same medical literature that causes of Pulmonary embolism are as following: —

Blood clotting is a normal process to prevent bleeding. The body makes blood clots and then breaks them down. Under certain circumstances the body may be unable to break down a clot...........

The main causes for it are-

1. Genetic conditions that increases the risk of blood clot formation

2. Family history

3 Surgery or injury

4. Older age

5 certain medical conditions such as heart failure,, chronic obstructive pulmonary disease,

6. Effect of Birth control pill.

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7. Obesity

8. cigarette smoking

It is also given in website medscape.com that:-

Pulmonary embolism is developed when blood clot causes a block in an artery in turn and blocked blood flow to the lungs. Pulmonary embolism usually arises from a thrombus that originate in deep venous system of lower extremities.

Both the above mentioned medical literature provides that the pulmonary embolism develop due to a blood clot which usually generate in lower part of body like legs. In this way it can be concluded from the literature above-mentioned that the pulmonary embolism is a bodily condition which may occur during a surgery and unless a definite evidence is present that this embolism was developed due to negligence in surgery it cannot be concluded that it was a fault or flaw in surgery due to which this medical condition ‘pulmonary embolism’ was developed in a patient. In this particular case the learned District Consumer Commission has arrived on the conclusion that the cause of death i.e. pulmonary embolism was due to negligence in surgery without giving any reason and this inference has no footing.

This is asserted by the complainant and also the District consumer Commission has given the conclusion that the ‘cardiac arrest’ developed during the surgery, was not duly monitored by the surgeon and other doctors attending the patient and also no cardiologist was president at the time of the surgery which could have monitored the patient properly. To scrutinize this allegations it is necessary to see the bed head ticket of the patient Smt. Usha Tripathi which is submitted by both the parties in this appeal. From side of

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complainant annexure number- SA4 and similarly annexure 4 submitted by the appellants are copies of bed head ticket of the patient. This incident of cardiac arrest took place as per the bed head ticket during surgery. Which is reproduced here:-

2.56 pm-

Patient suddenly became un easy, pulse(HR)-129/Ml BP: 76/42,I/V fluid(RL) made faster, O2 hundred percent given by anaesthesia machine and on mask. Injection Mephentine 0.5 ml I/V slowly given by diluting it.

Meanwhile patient became pulseless, ECG monitor showed ventricular arythemias. VT/VF. Called for help surgery halted.Endotracheal tube foot in the trachea, air. entry in both lungs checked. External cardiac message instituted.

DC shock 300 joules given, no response.

Injection Sodium Bicarbonate   20 ml Injection hydrocortisone 200 mg 

 injection adrenaline 1 ampule

DC shock 360 joules repeated.

Sinus Rhythm reverted back.

2.59 pm

HR-136/minute

BP — 56 / 34

Resp — supported by tube and ippr

Spo2 — 80%

Pupil — both normal but reaction sluggish
Injection — dopamine 2 ampules in M — salinate(500ml) started — 20 drops /minutes

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"call" for cardiologist requested.

The aforesaid ‘line of treatment’ clearly indicates that at about 2.56:00 p.m., during the surgery, the patient suffered cardiac arrest, immediately the surgery staff applied medicines through injections, inserted tube to give extra oxygen to her and also gave her external cardiac message to check that incident of cardiac arrest. It is evident from the note that before 2.5 9 p.m. and immediately after applying the medicines and Cardiac massage the Sinus rhythm of the patient reverted back. Sinus rhythm is define in website en.m. wikipedia in the following way:-

Sinus rhythm is a cardiac rhythm in which depolarization of the cardiac muscles begin at sinus mode. It is characterized by presence of correctly oriented P waves in the ECG.

The reverting back of sinus rhythm immediately after application of medicines and Cardiac massage etc. clearly suggests that the cardiac arrest during surgery was well taken care by the surgery staff then and there, although, a cardiologist was called but the attending staff controlled the situation and thereafter the patient was fit for further surgery.

The complainant has alleged and the same has been confirmed in the impugned judgment at page 23 that the hypoxia developed to the patient due to medical negligence of the surgery team at Sewa Hospital. The learned District Commission has pointed out that the death certificate of the patient issued by opposite party number 3 Hermain Hospital, they have mentioned incident of "hypoxic brain damage". The commission has also concluded that the opposite party No.1

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and 2 did not provide ample and timely oxygen supply to the patient and this for reason behind the hypoxia".

'Hypoxia' is defined in website www.webmd.com as "when the body does not have enough oxygen, the body gets hypoxemia or hypoxia. Hypoxemia i.e. low oxygen in the blood can cause hypoxia, low oxygen in the tissues of the body, when the blood does not carry enough oxygen to the tissues to meet the body is need."

The causes of hypoxia or hypoxemia are given in the website are the following: —

Anaemia

Asthma

Chronic obstructive pulmonary diseases (COPD)

Congenital heart defects

Congestive heart failure

Emphysema

Pneumonia

Pneumothorax

Pulmonary embolism(blood clot in the lung)

Pulmonary Fibrosis

Thus we find that the pulmonary embolism may be a cause of hypoxia or hypoxemia and in this particular case the reason for cardiac arrest has been attributed to pulmonary embolism, before it is quite clear that the patient suffer pulmonary embolism due to some blood clot which is usually develop in lower part of human body. That lot prevented oxygen flow and which is evidently a reason for hypoxia 4-5 minutes to the patient and it cannot be inferred that the oxygen was not supplied to the patient and for this reason the hypoxia and hypoxemia was developed. The complainant has

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not produced any evidence which proves that the hypoxia was developed due to non supply of efficient and timely oxygen to the patient during surgery.

The learned Commission has also quoted medical literature" prevention of cardiac arrest during small surgery" written by Frank Glen annual of surgery 1953 June 13 7(6): 920 -924 which gives :-

" If however the brain is deprived of its oxygen supply for 4-5 minutes, if variable brain damage a to result the length of time the brain can tolerate hypoxia is extremely short. For the reason, many article on the subject have stated correctly that the blood flow by the cardiac message so as to make the oxygen supply available to the brain is the most important and urgent step in the management of cardiac arrest."

It is revealed from the bed head ticket, which has given minute to minute description of steps taken in the surgery, that besides giving medicine to check cardiac arrest, the patient was given cardiac message and also mild electric shocks, this shows that the surgery team has given proper medical care to the patient and which resulted that the body of the patient responded immediately and thereafter, she was ready for further surgery. Consequently, no instance of medical negligence was found till this stage.

The Ld. District Consumer Commission cogitated over many facts which though not raised by the complainant in the complaint yet it considered them as instances of medical negligence. One of these facts is consent taken of the complainant for the surgery of his mother. The learner district

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Commission raised and pointed out many shortcomings in the proforma and that many spaces in this typed proforma was left blank by the staff and doctors of the hospital. For example column of diagnosis is blank, column of operation title is blank features of the doctors who accepted the treatment and surgery of the patient the date and time of filling the form is not there and many other columns are blank and the option of male/female has not been ticked in the proforma.

The aforesaid act of inadvertence, in our opinion, maybe an act done in haste for initiating and starting surgery without wasting time and to complete it in time, but it cannot be said that such an inadvertence or negligence are of such a nature, which may result any harm to the patient for that the opposite parties doctor and the hospital is liable to make compensation to the patient or her relatives. In fact this was for the purpose of taking consent of attendance and relatives of the patient for the surgery and all the conditions were printed on the form to which the complainant must have read before signing it. The absence of signatures of doctors performing surgery does not make it redundant as doctors were doing their routine duty in the hospital and the document shows that the complainant has all access to the conditions of the consent form before signing it.

The learned district Commission has said in the judgment that a cardiologist was not summoned in time and this delay might have caused harm to the patient. It is Apparent from the bed head ticket (minute to minute count of the steps taken during surgery) that the patient had no history of any cardiac problem, therefore the hospital did not arrange

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a cardiologist beforehand at the time of  starting surgery, yet when it was noticed during surgery that the patient was having heart problem and Cardiac Arrest then the operating team immediately called for cardiologist. Although, that cardiac problem was noticed at 2.56 pm during the surgery and a cardiologist was called at 2.59 p.m. By that time the cardiac arrest was duly checked and managed by the surgery team, still they called a cardiologist to assist them. The record shows that Dr. Anant Saksena, cardiologist attended the patient at 3.45 p.m. As the patient was not having any previous history of cardiac problem, the absence of cardiologist before starting of surgery although, can be said a mistake of judgment but it is not a case of medical negligence which may give rise penalizing and compensatory damages against the hospitals and the doctors.

This is also mentioned in the impugned judgment that opposite party no.1 and 2 did not take x-ray of chest as well as an ECG of the patient before surgery and this for us an instance of medical negligence. In our opinion, a plausible explanation of this shortcoming can be same that the patient was not having any heart related history therefore the surgery team did not consider necessary to take X Ray of the chest and also ECG before starting the surgery, but since the beginning of the surgery her cardiac condition was monitored by the surgery team as at 2:00 p.m. i.e. starting of the surgery spontaneous spo2 was recorded in the bed head ticket chronology come, as 97% .

It is also said in the impugned judgment that the patient was shifted from same hospital at 6.10 p.m. and  reached  Harmain Hospital and 7.10 p.m. but the medical chronology

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by the OP number one and two were recorded only till 6.10 p.m. i.e. at the starting of the journey of the patient to the next hospital Harmain Hospital. This is also considered as an instance of medical negligence on the part of OP number 1 and 2. It is also mentioned in the judgment as alleged by the complainants that in the shifting of the patient from Sewa hospital to Harmain Hospital no doctor or staff of the opposite party number 1 and 2 accompanied the patient to ensure her safety during the journey in shifting and this was another reason of their medical negligence.

We observe regarding this allegation that at the time of journey to another hospital, the condition of the patient was quite stable which is shown from the bed head ticket and 6.10 PM then the pulse of the patient was 136/mt, the BP was 146/90, temperature 102F, pupil reacting to light, reflexes were good, R/R-36/m and the patient was responding to painful stimuli and at 6 PM her ECG sinus tachycardia was 2-97%. This shows that the patient was in quite normal condition and the staff accompanying the patient was competent to handle the patient in her present condition, as it is their routine duty to carry serious patients for short distances which in the present case consumed approximately 1 hour. Besides, the patient remained in the Harmain Hospital for about 14 days and no fact has been noticed that the condition of the patient was deteriorated after the journey to the Harmain Hospital. The condition of patient explains that the opposite party number1 and 2 took all reasonable precautions to insure safety of the patient, therefore no medical negligence can be attributed to the opposite parties no. 1 and 2.

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On the basis of aforesaid discussion we reach on the conclusion that the opposite parties no.1 and 2 the doctors attending the patient and staff of the hospital took all reasonable steps to ensure safety measures in the surgery in question and we find no instance of medical negligence in the matter. The ld. District Forum has wrongly and without any cogent reason allowed the complaint in the impugned judgment therefore the judgment and order deserve to be set aside and we find no occasion to give any damages or compensation to the Complainants on account of the alleged medical negligence. 

          Therefore, the appeal no.716 of 2013 filed by Dr. Neena Saxena and Appeal No. 806 of 2013 filed by Sewa Hospital and Research Centre are liable to be allowed. The appeal no.760 of 2013 filed by the complainants is liable to be dismissed.

ORDER

Appeal no.716 of 2013 filed by Dr. Neena Saxena and Appeal No. 806 of 2013 filed by Sewa Hospital and Research Centre are allowed. The judgment and order dated 26.2.2013 passed by the Ld. District Consumer Forum-II, Lucknow in complaint case no.552 of 2005, Sailesh Tripathi & ors. vs. Sewa Hospital & Research Centre & ors. is set aside.

Appeal no.760 of 2013 filed by the complainants is dismissed as the judgment and order is set aside. 

A certified copy of this order be placed on the record of appeal no.716  of 2013 with its certified copy be kept on the record of other appeals.

The stenographer is requested to upload this order on the Website of this Commission today itself. 

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          Certified copy of this judgment be provided to the parties as per rules.       

          (Vikas Saxena)                           (Sushil Kumar)                             

                Member                              Presiding Member

Judgment dated/typed signed by us and pronounced in the open court. Consign to record.

          (Vikas Saxena)                           (Sushil Kumar)                             

                Member                              Presiding Member

Jafri, PA I

Court 2