2020(3) ALL MR (JOURNAL) 50
Delhi High Court
JUSTICE DR. S. M. KANTIKAR
Dr. C. Raghu Vs. Damidi Nirmala & Ors.
Revision Petition No.3436 of 2011 with Revision Petition No.30 of 2012.
1st November 2019
Petitioner Counsel: Mrs. B. SUNITA RAO, Mr. ANURAG, Dr. C. RAGHU
Respondent Counsel: Mr. KISHORE RAWAT, Mr. PRASHANT BHARDWAJ, Mr. Y. RAJAGOPALA RAO, Mr. B. NAGARAJU, Mr. AJAY SINGH, Mr. AKHILESH
Act Name: Consumer Protection Act, 1986
Section 2(1)(d) Consumer Protection Act, 1986 Section 12 Consumer Protection Act, 1986
Cases Cited :
Para 10: Kusum Sharma & Ors Vs. Batra Hospital & Med. Research Centre and Ors., 2010 ALL SCR 510 : (2010) 3 SCC 480
JUDGMENT :- Brief facts that, late D. Kishan Reddy, 63 years age (hereinafter referred as ‘patient’), underwent first coronary angiography (CAG) and angioplasty (PTCA) on 09.12.2003. It was performed by Dr. C. Raghu, the Cardiologist (OP No. 3) in M/s Yashoda Super Speciality Hospital (OP No. 1). Patient developed some complications and gastric bleed. It was treated and patient was discharged on 20.12.2003. During follow-up, after 8 months, on 27.07.2004, OP No. 3 advised the patient to undergo CAG again. It was alleged that during CAG patient suffered cardiac arrest and post procedure gastric bleed. The complainant – Damidi Nirmala, wife of the patient alleged that the OP hospital acted in careless and negligent manner. It was negligence which caused death of the patient. Being aggrieved, she filed a complaint before District Forum-I, Hyderabad. The opposite parties resisted the complaint by filing the written version, as there was no negligence during the treatment of the patient on both the occasions. 2. The District Forum on the basis of pleadings and evidence dismissed the complaint and directed the complainant to pay Rs.1,000/- to the opposite parties. 3. Being aggrieved, the complainant filed a first appeal before the State Commission. The State Commission set aside the Order of District Forum and allowed the appeal. Consequently, the complaint was allowed and the opposite party no. 1 to 4 were directed to pay total amount of Rs.5 lakh as a compensation and cost of Rs.2,000/- within four weeks. 4. Against the Order of the State Commission, the opposite party No. 2 - insurance company filed revision petition No. 30 of 2012 and the opposite party No. 3 – Dr. C. Raghu, Cardiologist filed revision petition No. 3436 of 2011 before this Commission. 5. Heard learned counsel for the parties and Mr. Akhilesh, learned Amicus Curiae present on behalf of the complainant. Perused material on record, including the original record received from lower fora and gave thoughtful consideration to the arguments from both the sides. 6. The main allegation of complainant was that (i) the treating Cardiologist, Dr. C. Raghu took a hasty decision to perform Coronary Angiography (CAG) procedure, without doing pre-angiographic investigations, (ii) There was delay in the treatment of Gastrointestinal bleeding occurred after CAG procedure, (iii) The OP–Hospital delayed the consultation of Gastroenterologist. 7. Admittedly the patient underwent Coronary Angiography (CAG) and angioplasty on 09.12.2003. During CAG patient developed cardiac arrest and he was revived by the team of doctors and further the emergency angioplasty PTCA was completed. It was the allegation of the complainant that after the procedure the patient was given injection REOPRO and thereafter the patient started bleeding from his mouth. As per the treatment record, the Gastro-enterologist Dr. Govind Verma was called immediately; who performed endoscopy and heat coagulation and the bleeding was controlled. Ryle’s tube was inserted for aspiration of gastric secretions. The patient was discharged on 20.12.2003 in good condition. 8. Perused the entire medical record of Yashodha Hospital. The patient was regularly attending for follow up at the opposite party – hospital. On 23.07.2004 the patient came to OP No. 3 with his daughter for the symptoms of heaviness and pain in the chest for 3 days. The opposite party No. 3 diagnosed it as an ‘unstable angina’. There was recurrence of the chest pain, therefore, opposite party no. 3 advised the patient to undergo CAG and same was performed in the morning on 27.07.2004 by OP No. 3 in presence of Anaesthetist, Cardiac Surgeon and Gastroenterologist. CAG revealed 80% restenosis within the previously placed stent and it was due to cholesterol accumulation. Within 15 minutes after angiography, there was a sudden fall in patient’s blood pressure (bradycardia) and ECG changes were noted. The patient was immediately put on Intra Arterial Balloon Pump (IABP). However, patient developed cardio-respiratory arrest and he was resuscitated by the team of doctors. Subsequently, opposite party No. 3 performed angioplasty and put a stent. Thereafter, about three hours later patient started bleeding from the stomach. The patient was attended immediately by Dr. Govind Verma, Gastro-enterologist, who performed endoscopy and heat coagulation. On the next day (28.07.2004) nephrology opinion was taken for low flow dialysis, but as the serum creatinine level 2 mg, the dialysis was deferred. Patient was given multiple transfusion of blood and its components but despite all efforts, patient expired at 12.15 p.m. on 29.07.2004. 9. The medical record clearly shows that before the angiography procedure the pre-angio panel- mandatory investigations were performed. The patient was periodically investigated for serum potassium levels and moreover the hospitalization, the patient was not on medicines which may induce hypokalemia or hyperkalemia. In my view, because of cardiac ischemia the patient suffered cardiac arrest after angiography and not by any abnormal potassium level. Thus bradycardia suffered by the patient was due to ischemia and not because of hypokalemia as alleged by the complainant. The doctors at opposite party no. 1 took all measures to control the bleeding and adequate blood and blood components (PRP, FFP, PC) transfusions were given. It is also pertinent to note that as per the guidelines, American College of Cardiology recommended the use of Abciximab (REOPRO) during acute coronary syndrome angioplasty. Thus, REOPRO in the instant case was administered to the patient to prevent clogging of the stent with blood clot. In this context, learned counsel for the opposite party No. 3 relied upon medical literature on the indication and appropriateness of angiography. [Chapter 20 Braunwald Heart disease; Coronary arteriography and intracoronary imaging’ Edition 2015.] Thus, use of REOPRO in this patient was not a deviation from standard of practice. The medical record clearly shows the patient was continuously monitored and the periodic laboratory emergency investigations (urea/creatinine, electrolytes, PT/APTT etc.) were done. 10. The question of whether to withhold medical treatment gives rise to a number of moral and legal dilemmas. The conflicts between relatives and healthcare professionals over what constitutes the best interests of the patient.The treating doctor has to take a decision based on the condition of the patient. I would like to refer the decision of Hon’ble Supreme Court in the case Kusum Sharma & Ors vs Batra Hospital & Med. Research Centre and Ors. (2010) 3 SCC 480 : [2010 ALL SCR 510] wherein it was held in paragraphs 77 to 81 as: 77. In Jacob Mathew’s case (supra) this court observed that higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. The court further observed as under:- “25......At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.” 78. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. This court in Jacob Mathew’s case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. 79. Doctors in complicated cases have to take chance even if the rate of survival is low. 80. The professional should be held liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. But, at the same time courts have to be extremely careful to ensure that unnecessarily professionals are not harassed and they will not be able to carry out their professional duties without fear. 81. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals. 11. In the instant case, I do not find any deficiency in the treatment, the duty of care or negligence on the part of treating doctor and the hospital. The death of patient was due to cardiorespiratory arrest and despite best effort of the doctors the patient died, for which doctors are not blamed and it was not the act of omission or failure in duty of care. 12. Based on the forgoing discussion, the order of State Commission is set aside and both the revision petitions are allowed. Consequently the consumer complaint is dismissed.
Decision : Revision allowed.