Rajinder Singh & 4 Ors vs Dr. Ashok Kumar Nandra & Anr

Dr. S.M. Kantikar, Presiding Member

The petitioners / Complainants have filed the instant Revision Petition under section 21 of the Consumer Protection Act, 1986, against the Order dated 29.11.2012 passed by the State Consumer Disputes Redressal Commission, Haryana Panchkula (for short, the ‘State Commission’) in First Appeal No.307 of 2012, wherein the State Commission allowed the Appeal filed by the Respondents/Opposite Parties and set aside the judgement passed by the District Consumer Disputes Redressal Forum, Ambala (for short, the ‘District Forum’).

Brief facts that Mr. Talwinder Singh (since deceased, hereinafter referred to as, the ‘patient’) approached Dr. Ashok Kumar (OP-1) at his Nandra Hospital. After examination, he diagnosed a broken rod (implant) in his right leg. He advised removal of the broken rod and replacement with new implant. On 01.12.2008, the operation was fixed, but it was alleged that the surgery could not be completed due to improper administration of anesthesia and the patient regained consciousness during the procedure. It was further alleged that the OP-1 removed only half of the rod and left remaining portion in the leg. It resulted into further deterioration and bleeding; subsequently, the patient died on next day (02.12.2008). Being aggrieved by the death of the patient, the parents of the deceased, his wife and children filed the Complaint before the District Forum, Ambala.

The OP-1 denied negligence during the treatment. He submitted that the surgery was performed under spinal anesthesia and the old implant was removed. However, the patient being chronic alcoholic, the new implant could not be inserted during the same procedure. Therefore, surgery was abandoned and the wound was stitched and decided to complete during next sitting. The same was informed to the Complainant’s relatives. On the repeated requests of the Complainant to refer the patient to big hospital, the patient was advised to go to PGI or Govt. Medical College Hospital (GMCH) Sector-32, Chandigarh. However, the patient got admitted in GMCH. There, the patient died on 02.12.2008 and the cause of death stated to be ‘Chronic Alcoholic Disease’ (ALD), Respiratory Failure & Shock.

The District Forum partly allowed the Complaint, applying the doctrine of res-ipsa-loquitur and directed the OPs to pay Rs. 3,00,000/- alongwith Rs. 5,000/- as the cost of litigation to the Complainant.

Being aggrieved by the Order of the District Forum, the OPs filed the First Appeal before the State Commission, wherein the Appeal was allowed, vide Order dated 29.11.2022 and set-aside the order of the District Forum. The relevant observation is reproduced as below:-

“Having considered the facts and circumstances of the case and the rival contentions of the learned counsel for the parties, we do not find it a fit case to connect the opposite party No. 1 with any kind of medical negligence. There is no expert evidence on the record on behalf of the complainants to prove their case. The record of the G.M.C.H. Sector-32, Chandigarh does not reflect any lapse on the part of the opposite party No. 1. It is established on the record that the patient was put under spinal anesthesia by a qualified anesthetist. There is nothing on the records of G.M.C.H. that the patient was having profuse bleeding. As per the findings of the G.M.C.H. on the death certificate, the patient was chronic alcoholic and suffered from alcoholic liver disease which was the reasons for the patient becoming uncomfortable or non-manageable. The Treatment Card issued from 'NDNDRA HOSPITAL' (Annexure A-2) reflects that patient Talwinder Singh was shifted from the hospital of the opposite party No.1 against the medical advice by the attendant Devinder Singh of his own. The writing of Devinder Singh in this regard is on the file which is the part of Treatment Card issued from ‘NANDRA HOSPITAL’ All these facts have not been considered by the District Forum in its true perspective. Merely that the patient could not survive, cannot be termed that it was a case of negligence on the part of the opposite party.”

Being aggrieved by the Order of State Commission, the Complainants filed the instant Revision Petition.

Heard the learned Counsel for both the sides. Perused the entire material on record inter-alia Orders of both the fora.

Heard the arguments and perused the material on record.

The learned Counsel for the Complainants submitted that the OP-1 himself administered anesthesia before the surgery without mentioning the details. In the operative notes, no name of the doctor, time and type of anesthesia was mentioned. The Operation Theatre (OT) was unhygienic. As per the report of PGI, the patient developed tetanus due to the improper operation performed under unhygienic conditions. The State Commission wrongly held that there was no expert opinion from the Complainant. The Counsel relied upon the few decisions of this Commission & the Hon’ble Supreme Court.

The learned Counsel for the OP-1 argued that the spinal anesthesia was administered by Dr. Ashok Goyal, a qualified Anesthetist. The hospital had all the facilities for the surgeries and denied about unhygienic conditions.

On the thoughtful consideration, it is evident from the medical record of Nandra Hospital that on 30.11.2008, the patient was admitted with the history of fall while tying his shoes. The OP-1 examined the patient and x-rays (AP and Lat.) of right thigh taken. It was diagnosed as ‘fracture shaft femur (right) with implant in situ’. The patient was given inj. Tetanus toxide, Diclofenic and antibiotic. Also IV drips and skin traction was started. After relevant blood and urine investigations, he was operated on 01.12.2008 at 5.00 pm after taking informed consent. His prescription clearly revealed that the patient became irritable and could not be managed, therefore, surgery was abandoned by suturing the wound. It is pertinent to note that due to persistent request from the patient’s relatives the patient was referred to PGI / GMCH for management.  More important that the death certificate, issued by GMCH clearly stated that the patient was chronic alcoholic for 5 to 7 years. He died due to alcoholic lever disease with respiratory failure and shock. There was no nexus with the uneventful surgery performed by OP-1. From the medical literature, it is known that alcoholic patients suffer surgical stress. I have gone through few literatures on alcoholic patients and surgical stress. Thus, I do not find any deficiency or dereliction in the duty of care from the OP during surgery.

I do not find any material irregularity and jurisdictional error in the Order passed by the State Commission warranting interference u/s 21(b) of the Act. The same is upheld.

The Revision Petition is devoid of any merit and is dismissed accordingly. There shall be no order as to the costs.