Sir Ganga Ram Hospital & 2 Ors vs Dr Sita Omer

Dr. S. M. Kantikar, Presiding Member

1.These two cross Appeals have been filed by the Appellant as well as the Respondents under Section 19 R/w. Sec. 21(a)(i) of the Consumer Protection Act, 1986 against the order dated 23.10.2018 passed by the State Consumer Disputes Redressal Commission, New Delhi in Complaint Case No. 147 of 2009, whereby the Complaint was allowed.

Brief facts:

The Complainant, Dr. Sita Omar’s husband suffered road accident on 11.03.2007 at 11:40 p.m.He was immediately taken to Safdarjung Hospital and then admitted to Sir Gangaram Hospital (SHRG) under care of Dr. A.K. Kocher, an Orthopedic Surgeon (hereinafter referred to as the ‘OP-2’).He examined the patient, who suffered multiple fractures of ribs, right femur, left fibula and pubic rami and ankle. Both the lungs were punctured and patient developed hemothorax. Due to severe blood loss, the patient developed hypotension and shifted to ICU. After a week, on 19.03.2007, Dr. S. K. Chaddha (hereinafter referred to as the ‘OP-4’) performed thoracotomy and simultaneously operated for fixation for femur and ankle repair.After two months, on 28.05.2007, spinal vertebral fixation with implant was done.However, the patient did not improve and his pain persisted.The patient developed breathlessness and he was again admitted on 10.07.2007 under care of Dr. S.K. Chaddha. Bronchoscopy was performed but no relief. The patient was discharged on 27.07.2007. Thereafter, for pain management, the patient was taken to AIIMS on 01.11.2007 under care of Dr. R. Malhotra, Orthopedician and Dr. Rita Sood, the Chest Physician.The CT scan was performed, which revealed pleural rupture due to the spinal fixation screws entered lower lobe of right lung. It led to recurring infection. Therefore, right lung lobectomy was performed and proximal screws were removed. The patient was shifted to ICU and remained for four months in AIIMS under treatment of pneumonia.The MRI was scheduled to assess the damage of spine but it was not possible because of one Harrington’s rod implant.Finally, the patient was discharged on 28.06.2008.The patient was kept on visiting the hospital regularly but day by day his condition deteriorated.It was alleged that the OP charged Rs. 1.28 lakh for inferior qualities of implant screw and further developed paraplegia, psychological depression which subsequently developed disability.Being aggrieved, Consumer complaint was filed before the State Commission, New Delhi.

The Opposite Parties, in their written version, denied the allegations.  The question of maintainability was raised that the complaint was filed by the patient’s wife, which is not maintainable.

On hearing the parties, the State Commission partly allowed the complaint and awarded Rs.10 lakh as compensation on the hospital as a vicarious liability.

Being aggrieved, Sir Ganga Ram Hospital with Dr. S. Shankaracharya & Dr. S. K. Chadha has filed FA/272/2019 and the Complainant filed FA/421/2020 for enhancement of compensation.

We have heard the learned counsel for the parties, perused the entire medical record. The learned Counsel for the OPs submitted that the patient concealed his scoliosis because of childhood polio, which also affected the lungs and weakness in right limb.  The Counsel denied any fault in implant screw fixation at D 11-12 vertebra and patient showed significant improvement, hence discharged.  He further argued that on 10.07.2007 the patient was admitted for breathlessness, the X-Ray and CT Chest showed broncho pneumonia with collapse and fibrosis of right lower lobe of lung and there was small quantity of plural infusion on both sides. On 18.07.2007 and 24.07.2007, bronchoscopy was performed to clear the secretion. The patient was discharged with follow-up advice. According to him because of scoliosis, there was poor right lung capacity and poor respiratory effort due to polio.  Thus, he was getting repeated attacks of right lung infection and atelectasis.  It was nothing to do with implant screw or rod.

We have perused the expert opinion from Dr. R.M.L. Hospital, which opined that no infirmity in the course of action adoped, in as under:

Committee the gone through all the records which are attached and opined for the complaints of Dr. Sita Ram w/o Mr. Siddharth.

I. Anterior transthoracic retroperitoneal decompression of pseudoathrosis with rib grafting, Screw and staple fixation D9 to L2 done on 28.05.2007 and paraplegia occurred approx. five months after on dated 27.11.2007, which is not the direct cause of 100% disability of the patient.

II. Patient was managed well for a life threatening injury at Gangaram Hospital. He was regularly followed up and treated by Orthopedic Surgeon, Cardiothoracic Surgeon and Chest Physician.

III. In AIIMS he was operated for right lower lobectomy and screw removal after paraplegia.

IV. Implant choice at the time of surgery was by Orthopedic Surgeon with the consultation of the patient.

MRI as such was not possible as he had Harrington rod in spine in his childhood.

V. Paraplegia is not because of faulty fixing.

VI. Committee doesn’t feel, any negligent treatment by Gangaram doctors.

VII. Not pertaining to medical board.

On careful perusal of medical record of AIIMS, it is evident that the Spinal fixation implant screw was entered in right lower lobe lung and it ruptured the pleura, which was the cause of lung infection i.e. consolidation and some infiltration in right lower lobe. On 29.11.2007, the doctors at AIIMS performed right lower lung and removal of proximal screw removal and the patient was kept in ICU for four months under supervision. The patient suffered paraplegia on 27.11.2007 and went into severe depression for which, he was given psychiatric treatment. He was declared 100% disable and a certificate to that effect was issued by AIIMS. The MRI was tried to get done on 28.12.2007, but could not be done due to incompatible implant. He remained under treatment at AIIMS and was discharged on 28.06.2008. Time and again, the patient was taken to AIIMS for his disability. During the course of treatment, the patient, eventually, breathed last on 27.12.2012.

The death certificate revealed that the death was due to Sepsis with Septic Shock, Lower Respiratory Tract Infection, and Traumatic Paraplegia with acute pneumonia and Congenital scoliosis post-op status. We agree with the State Commission, which held that the wife of the deceased can file the Complaint. It applied the principles of res ipsa loquitor as no proper care was exercised during and after surgery and thus negligence on the part of OPs is writ large. All the doctors/OPs have been negligent in treating the patient and have failed to diagnose the post-operative complication despite patient’s several follow-up visits.

In the month of November, i.e. 8 months later, he developed breathless and went to AIIMS. At the time of admission, he was neurologically intact and had chest infection with basal lobe atelectasis. Fresh CT Scan was done and it was found that he had developed TB spine at D6-7. The patient developed paralysis in his lower limbs due to TB spine. The sensory level was D9-10, which corresponded to the lesion at D6-7 due to TB. It was developed after the discharge from SGRH after long period after October, 2007. He neither visited Dr. S.K. Chhadha nor Dr. A. Kochar. Therefore, the patient’s present disability has no relation with the treatment given at SGRH. Even the Medical Board in the Medical Report has opined that Paraplegia cannot be caused because of faulty screw fixing, but admittedly it injured the pleura (lung).

Therefore, we hold the treating doctors negligent for failure of duty of care. This view is fortified from the decision of Hon’ble Surpeme Court in the case of Achutrao Haribhau Khodwa v. State of Maharashtra[ (1996) 2 SCC 634 ], their Lordships observed that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in tort would be maintainable. Their Lordships further observed that if the doctor has taken proper precautions and despite that if the patient does not survive then the court should be very slow in attributing negligence on the part of the doctor. It was held as ‘A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care’.

Regarding compensation, in such cases, where doctors are liable for medical negligence, where they act carelessly, results an action in torts as held by Hon’ble Supreme Court in the case of Spring Meadows Hospital v Harjyot Ahluwalia[(1998) 4 SCC 39 ], their Lordships observed as follows:

“Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor…”

In the instant case, it was not a bonafide mistake of the OPs and we affirm the view of the State Commission, which awarded just and proper compensation. The Complainant does not deserve enhanced compensation.

Based on the foregoing discussion, we do not find merit in both the Appeals and the same are dismissed.