1. FIRST Appeal No. 612 of 1993 has been filed by Dr. Mrs. Rashmi B. Fadnavis & Dr. Bhalchandra Fadnavis (appellants No. 1 and 2 respectively) against the order dated 2.8.1993 of the Maharashtra State Consumer Disputes Redressal Commission in Case No. 282 of 1991. The appellants herein were opposite party Nos. 1 & 2 in the original petition while respondent No. 1 (Mumbai Grahak Panchayat) and Respondent No. 3, (Dr. Mrs. S.S. Kalelkar, Anaesthetist) were respectively the petitioner and opposite party No. 3 in that case. In the appeal. Registrar, Maharashtra State Consumer Disputes Redressal Commission was mentioned as respondent No. 2.
2. THE present appeal earlier came up before this Commission for condonation of delay in filing the appeal. THE delay was sought to be explained by the fact that the appellants had preferred a writ petition in the High Court of Judicature of Bombay on 17.9.1993 against the impugned order of the State Commission. THE High Court ordered them to prefer the appeal before the National Commission. THE appellants requested us for the exclusion of the period between the date of writ petition and the date on which the said order was passed by the High Court from the period of limitation in respect of the appeal before us. Since we were not satisfied with this explanation, the above appeal was dismissed barred by time. Against this order of dismissal, the appellants went in appeal before the Hon''ble Supreme Court who, after taking into account the facts and circumstances explained by the appellants, condoned the delay subject to the appellants paying costs of Rs. 5,000/- to the learned Counsel for the respondent No. 1 - petitioner within a period of two weeks from the date of their order and directed that this Commission would dispose of the matter on merits according to the law.
Accordingly, Appeal No. 612 of 1993 was taken up for hearing on 14.5.1998. Facts of the case may be noticed briefly - Mrs. Meena Pilankar, wife of Mr. Vinayak Pilankar was examined by opposite party No. 1-appellant No. 1 on 24.1.1991 at Jeeven Vikas Kendra Hospital in Andheri, where the latter was attached as Honorary Gynaecologist, for excess discharge, excess bleeding and white discharge during her monthly periods. Ultra sonography was done and the report of the ultra sonography was scanned. On the same day, blood was checked for haemoglobin percentage and blood sugar (random), and the results were 11.4 per cent and 138 mg/dl respectively. On the next day (25.1.1991) D&C was done and the report which was available on 2.2.1991 said "No evidence of granuloma or malignancy". On 28.1.1991, the following tests were carried out as suggested by appellant No. 1 - namely (i) X-ray Chest PA view, (ii) ECG (iii) Blood sugar F. pp, (iv) Blood VDRI, (v) SGOT, SGPT (vi) Serum Creatinine, (vii) Blood group. On 29.1.1991, Dr. Shekhar Ambardekar (Cardiologist) was; consulted alongwith a letter given by appellant No. 1 requesting him to be available during the operation for monitoring the patient. After checking the ECG, blood pressure. X-ray, pulse and the chest. Dr. Ambardekar certified that the patient is completely fit and normal. On 31.1.1991, Dr. Rashmi Fadnavis (appellant No. 1) again met Dr. Ambardekar with a request for taking the X- ray in a different manner and carrying out the blood sugar test (two hours after food). These tests were carried out on 2.2.1991 and after they both showed normal. Dr. Ambardekar recorded that "the patient is fit for surgery". Thereafter, on 5.2.1991, the patient was admitted in the Nursing Home of opposite party No. 1 - appellant No. 1, reportedly on the latter''s suggestion and was operated upon on 6.2.1991. However, she died at the operation table itself. The complaint was, therefore, lodged before the Maharashtra State Commission by the patient''s husband alleging negligence in the treatment and service rendered by appellants No. 1 and 2 (opposite party Nos. 1 and 2 respectively) and respondent No. 3 (opposite party No. 3) and he claimed Rs. 9,57,355/- as total compensation.
The allegations of negligence on the part of the appellant No. 1 - herein made in the complaint are:
(1) The shifting of the patient by opposite party No. 1 -appellant No. 1 to her ill- equipped Nursing Home, Sukhada Maternity and Nursing Home-from the well-equipped Jeevan Vikas Kendra Hospital was with a view to earning hospital and treatment charges. (2) The patient was having a rare blood group which was not available with the opposite party Nos. 1 & 2 in their Nursing Home and the complainant was asked to arrange for blood. The Nursing Home did not also have the transfusion set. (3) The diagnosis in the case was ''uterine fibromyometosis'' and the operation could have started after blood and other pre-operational requirements were available to counter any eventuality. This was particularly necessary since the patient weighing 124 kgs. was medically a ''morbid obesity'' patient and admittedly a person of potential risk factor having a rare blood group. (4) The doctor''s negligence had been further compounded by the prolonged duration of the operation for 7 hours. (5) There was excessive blood loss caused to the patient during the operation. As blood was not immediately available, I.V. fluids and Haemaccel were used. Blood has inherent property of carrying oxygen. In case of blood loss, the blood pressure may be maintained by infusing I.V. fluids at faster rate; however, if the blood is not replaced, it can cause, definite hypoxia, which is difficult to estimate on the operation table. Such hypoxia did take place and that is why while being reversed, the BP of the patient could not be maintained. (6) The Nursing Home had no arrangement for machine operated artificial respirator and adequately long needle was not available to inject the medicine intra-cardiac at the crucial stage to revive the patient.
3. THE State Commission dealt with these allegations. THE Commission did not find any justification for shifting the patient to the Nursing Home where opposite party No. 1 and her husband, opposite party No. 2, (appellants - herein) were the only doctors available, while at Jeevan Vikas Kendra Hospital many medical experts could have been made available for treatment, in case of any unforeseen emergency. It was not the case of opposite party Nos. 1 & 2 that the patient was shifted because their Nursing Home was superior compared to Hospital. THE Commission inferred that the opposite parties - appellants solicited a paying patient by advising her to come to their Nursing Home for treatment. In the Commission''s view, it was obviously a hasty and unwise act to treat a risk factor patient under inadequate arrangements, being fully aware of the diagnosis.
On the question of non-availability of blood of the rare group of the patient and the admitted position that the complainant was asked to arrange for blood, the Commission observed on the basis of the operation notes (appended with the complaint) that one bottle of blood was given during the surgery and on two occasions Haemaccel was used. From the literature on the use of Haemaccel placed on record, the Commission noted that Haemaccel which is a balanced colloidal crystalloid solution for Plasma substitution is not by itself a substitute for blood and is normally used when blood is not available in any emergency. The Commission concluded that the use of Haemaccel during the operation of the patient itself demonstrates that blood in required quantity was not kept ready and was not available with the opposite party Nos. 1 and 2. The Commission observed that there was absolutely no emergency to operate upon the patient inasmuch as there were no adequate arrangements for blood and transfusion set for tills operation. The State Commission also saw substance in the submissions in the complaint that the prolonged duration of operation extending to 7 hours itself showed want of professional skills and average medical surgical knowledge on the part of the opposite parties - appellants and that this also exposed the patient to the risk factor of prolonged anaesthesia which may have accelerated the death of the patient. Regarding the role of Anaesthetist, the State Commission examined the Coroner''s report pertaining to the death of the patient. Additional Coroner of Bombay stated in his conclusion that the final cause of death was "shock due to Anaesthesia ''(unnatural)" based on the histopathological report dated 16.11.1991 and chemical analysis report dated 9.7.1991. The report of Chemical Analyser was on the basis of examination of blood samples of the patient and the results were inconclusive. The State Commission was unable to agree with the view of the Additional Coroner of Bombay that death of the patient was as a result of shock due to anaesthesia (unnatural) because the report of the Chemical Analyser dated 9.7.1991 showed the absence of anaesthetic gases in the blood of deceased and did not support the opinion of the Coroner. The Commission, therefore, concluded that there appeared to be no basis for the finding of Coroner that the death of the patient was as a result of shock due to anaesthesia. The Commission was of the view that the two doctors, Dr. Ambardekar, Cardiologist and Dr. Chitale whose assistance opposite party Nos. 1 & 2 (appellants herein) had taken, have rendered their opinion without considering the totality of the circumstances and therefore, their opinion was not relevant for the purposes of determining the deficiency in the services of the opposite parties-appellants. The State Commission further observed that opposite party Nos. 1 & 2 (appellants) appeared to be trying to throw blame on opposite party No. 3 (respondent No. 3), and that having regard to the fact that there was no privity of contract between the complainant and Anaesthetist, the Anaesthetist cannot be held liable for the payment of compensation even if it is proved that she acted negligently in her duty, as her services were hired by opposite party Nos. 1 & 2 for consideration.
4. ON the basis of the material on record, the State Commission held that opposite party Nos. 1 & 2 were guilty of medical negligence and that the death of Mrs. Meena Pilankar was caused due to lack of ordinary care and skill which a medical practitioner should have exhibited under the circumstances while treating the patient and directed opposite parties No. 1 & 2 to pay jointly and severally Rs. 2,55,355/- to the complainant towards compensation and Rs. 5.000/- towards cost of the petition to the Mumbai Grahak Panchayat.
There was an appeal filed earlier by the respondent-complainant before us as First Appeal No. 468 of 1993. In that appeal, the respondent- complainant had pleaded against the exoneration by the State Commission of opposite party No. 3 and also prayed for higher compensation. This was considered and disposed of by us at that time by our order dated 15.2.1996. The State Commission had not found basis or evidence for alleged deficiency in services of the Anaesthetist. We did not find any reason to disagree with that conclusion. However, we held that the Anaesthetist who participated in the process of delivery of medical services to the beneficiary is as much liable as the main surgeon herself if her negligence had been established.
In their appeal (F.A. No. 612 of 1993) and in their written submissions before us, the appellants (opposite party Nos. 1 & 2 before State Commission) have broadly raised the following grounds for setting aside the impugned order of the State Commission :
(1) It was patient''s husband who pleaded that the patient be operated in the Nursing Home and because of his insistence, the patient was accommodated on compassionate grounds. There was no inducement. or pressure from the appellants. (2) The extent of operation was explained to the patient and her husband and they were told to procure one bottle of blood. Necessary consent letter for surgery was signed by her husband. (3) During the pendency of the complaint before the State Commission, a final post-mortem report became available. The Commission over- ruled that report without giving cogent reasons and decided the case in the absence of any definite final cause of death. There was no reason for the conclusion of the State Commission that there was no basis for the findings of the Coroner that death was as a result of shock due to anaesthesia because the chemical analysis report showed absence of anaesthetic gases in the blood of the deceased. The State Commission completely overlooked that the chemical analysis was carried out in July, 1991, by which time the volatile gas had evaporated. The order was passed merely on presumption and conjecture. (4) The State Commission derived conclusion as to the cause of death being ''Haemorrhage'', which is not seen anywhere in the post mortem report, and exonerated the anaesthetist on purely flimsy technical grounds. The allegation of blood loss was without any basis as the final post-mortem report did not show blood in the abdomen or any slipped ligature. (5) Due cognizance was not given to the cogent relevant evidence in the form of affidavits of medical experts of repute filed by the appellants. Dr. Arun Chitale, whose evidence was filed had done about 1000 post- mortem in his career. According to him the report does not show any collection of blood either in the abdominal cavity or from the sides of the organs removed or the surgical wound on the abdomen and there was no evidence of excessive blood loss which could cause hypovolaemic shock. (6) In the field of medical science, duration of surgical procedure varies from patient to patient and surgeon to surgeon and no hard and fast rule can be laid down. (7) The patient was fully investigated pre-operatively including cardiologic fitness for surgery. The patient was seen by anaesthetist and monitored throughout the operation. Operative procedure was done meticulously without damaging any organ like bladder or intestine. All parameters of the patient were kept at normal during operation but immediately after operation before extubitation, the patient expired which was a mere accident. Immediate post operative cardiac arrest can occur as an accident.
5. RESPONDENT No. 3 had also filed her reply to the appeal. In her earlier affidavit before the State Commission, she had advanced the following arguments: (1) The final post-mortem report furnished by the complainant was not the same as the one received immediately after the death alongwith the complaint, since the name of attending Coroner in the earlier post-mortem report was stated as Dr. Ashok Mehta, Deputy Coroner whereas the name of the attending Coroner in the subsequent post-mortem report was shown as Dr. G.M. Deshpande. These discrepancies showed that the original post- mortem report had been altered and these post- mortem reports were not reliable at all and need not be relied upon by the State Commission; (2) The amended post-mortem report which showed the cause of death, was open to serious objections. The final cause of death had been arrived at only on 17.3.1992 i.e. well after this complaint was instituted although the chemical analysis and the histopathological reports were ready on 9.7.1991 and 16.11.1991 respectively and the Police Surgeon with whom the case was alleged to have been discussed, had not given any data following from the histopathological or chemical analysis reports which led to the conclusion being drawn. The alleged final cause of death was, therefore, nothing but an opinion which was not supported by logic and hence unreliable and perhaps biased; (3) The operation extended beyond the estimated time due to unforeseen difficulties encountered as the surgery progressed and that as an Anaesthetist she had to continue the anaesthesia as long as surgery was in progress. During this period of the surgery she monitored and maintained the patient''s vital parameters and the operating surgeons were informed about the same from time to time. Non-availability of blood was also stressed to the surgeons, so as to enable them to take necessary steps. In her reply to the appeal before us she had pointed out discrepancies in the timing mentioned by appellant that injection Atropine was given at 8.45 a.m. whereas as per her operation notes appended with the complaint, it was given at 8.15 a.m. She had also pointed out that although Dr. Ambardekar came to the Nursing Home on 6.2.1991, to the best of her knowledge, he had not recorded any findings on the same day when he saw the patient during the operation.
6. IN his written version, respondent No. 1-complainant had repeated his allegations raised in the complaint. He was permitted to file written submissions in supplementation of his oral arguments within 10 days from the date of our hearing i.e. 14.5.1998. These have, however, not been made available so far.
We have heard the Counsel for appellants and Counsel for respondent No. 3 and Mr. Shirish Deshpande, Authorised Representative for respondent No. 1 - complainant and carefully perused the records.
(1) As for the issue of shifting the patient from the Hospital to the Nursing Home, we do not find any document to establish whether this was done on the insistence of the patient''s husband as contended by the appellants or was induced by the appellant No. 1 as alleged by the complainant. Assuming that this was done on the insistence of the patient''s husband, such insistence by patients normally arises out of their expectation that the concerned Doctor would take particular care and given better attention to the patient in her own nursing home. If this were the case, then it threw more responsibility on the appellants to take extraordinary precautions in treating the potential risk patient. Further, if the patient''s husband insisted on shifting his wife to the nursing home where he had to incur higher expenses, he would certainly have incurred the cost for procuring three bottles of blood and made them available to the appellants, even before the operation started had the appellants impressed on him the need for that number of bottles before the start of operation; but obviously the appellants failed miserably in this regard.
(2) Regarding the overruling by the State Commission of the post-mortem report, it is pertinent to note an observation by the appellants - herein before the State Commission "In any event, I state that a post-mortem report is not always reliable and trustworthy" (Page 68 of the paper- book). This apart, it is a fact that the final post-mortem report became available after 17.3.1992 i.e. well after the complainant was filed. Death occurred on 6.2.1991, chemical analysis report reading "results of the tests for the detection of anaesthetic gases - in the exhibit are inconclusive was dated 9.7.1991 and the histopathological report giving the diagnosis as "massive pulmonary odema with acute tubular necrosis of kidney (Ischemic type)" was dated 16.11.1991. The final post mortem report is undated except for the remarks that "case discussed with Police Surgeon on 17.3.1992. The final cause of death is "shock due to anaesthesia (unnatural)". These three documents were sent to the State Commission by the complainant through his letter dated 2.6.1992. There was considerable delay of about 5 months from the date of death in the availability of chemical analysis report, of about 9 months in the case of histopathological report and more than a year in the final post-mortem report. The appellant''s submission before us that ''the chemical analysis was carried out in July, 1991 by which time the volatile gas had evaporated'' although presumes that anaesthetic gases existed in the sample in the first instance, shows that such delay may render the report invalid.
(3) As regards the contention of the appellants that the affidavits of Dr. Ambardekar and Dr. Chitale were not considered as relevant by the State Commission, it is seen that Dr. Ambardekar was not an independent evidence inasmuch as he was also paid by the complainant for his services as Cardiologist and was thus an interested party on the side of the appellants. Dr. Chitale''s affidavit is based on a study of the post-mortem report and his observations are "I state that the post-mortem report of the said Mrs. Meena Vinayak Pilankar does not reflect the cause of death i.e. "shock due to Anaesthesia" for the following reasons. The findings in the post-mortem report at Sl. Nos. 2, 5, 6, 7 and 10 do not suggest any condition due to Anaesthesia ...... there was no evidence at the post- mortem examination of excessive blood loss which could cause Hypovolaemic shock". His affidavit is not seen to be conclusive.
(4) The duration of surgery went beyond the estimated time. This becomes evident from the appearance of Dr. Ambardekar at the operation theatre at about 2.30 p.m. on that day to see the patient post-operative. In their written version before the State Commission, the appellants herein stated "........ Dr. Ambardekar came to the operation theatre at about 2.30 p.m. He presumed that the operation would be over and he could check the patient post-operative ..........". In his affidavit. Dr. Ambardekar had averred "I had visited the Nursing Home on 6.2.1991 as per prior request made on 5.2.1991 by Dr. Mrs. Rashmi B. Fadnavis, to check the patient after the operation at her Hospital. I felt that the operation was probably over by 2.00 p.m. and, therefore, visited her Hospital around 2.30 p.m. However, when I reached the said place, I came to know that the operation was still going on". These averments of appellant and Dr. Ambardekar show that the estimated duration of operation was about 4 hours but actually went beyond that. Here it is important to note the following remarks of Dr. Ambardekar in his aforesaid affidavit "I came to know further from the Anaesthetist and Dr. Mrs. Rashmi B. Fadnavis that there were adhesions between the uterus and the other abdominal viscera, which were difficult to separate and hence the operation was still going on". In this connection, while justifying the time taken for surgery, the appellants - herein have stated in para 37 of their version before the State Commission "In fact surgery was not at all prolonged. It commenced at about 9.45 a.m. and was over by 3.45 p.m. (6 hours). I say that it is perfectly normal time considering the pathology in the patient which was discovered only on opening of abdomen. I say that not even most experienced in the field of surgery would be able to say before hand about the duration of the operation until and unless a surgeon actually operates by opening up the necessary parts of human body...." If as per this averment, the duration of surgery will be known only after the opening of the abdomen and the discovery of the pathology and is, therefore, uncertain, this makes it all the more essential for the appellants to be prepared for any likely contingencies.
(5) The appellants have contended before us that the allegation of blood loss was without any basis. However, it is an admitted fact in the operation notes of appellant 2 that one bottle of blood was given during surgery and two bottles of haemaccel were used. The Anaesthetist''s notes list the following I.V. fluids which were given to the patient during surgery, (i) Glucose Saline, (ii) Ringer Lactate, (iii) Ringer Lactate, (iv) Glucose 5%, (v) Haemaccel, (vi) Ringer Lactate, (vii) Haemaccel, (viii) Haemaccel, (ix) Blood. The assessment of requirements of one bottle of blood was very much on the low side having regard to the actual supplementation. Appellants had admitted before the State Commission that "surgery commenced between 9.35 and 9.45 a.m. Bottle of blood arrived at 2.15 p.m." We also find contradictory averments by the appellants about the requirement of blood. In para 21 of their version before the State Commission they mentioned "we had informed the patient that normally one bottle of the blood would be required for her surgery. I say that it is true that two haemaccel was asked for", while in para 27, they stated ".....I told the relatives of the patient that it is necessary to arrange for two more bottles of blood since we do not want to take any chance and should be ready for post-operative complications like secondary haemorrhage and or better post operative recovery as the patient was having A - Rh negative blood group"; this seems to have been told to the relatives who were waiting during the time of the operation. Yet, para33 of the said version states "..... normally, I do not require any blood for operation of hysterectomy"; this in fact seems to have prevailed over the appellants in starting the operation without prior availability of any blood in the operation theatre. The surgery was neither a rare one nor was it required to be performed on an emergency basis.
(6) The patient was one with a rare blood group and was a ''morbid obesity'' patient. Appellant No. 2 herself was aware of the risk in the case as she deposed before the State Commission "...... the only important factor was that the patient was morbid obesity ... it is well-settled in medical science that ''morbid obesity'' itself poses a set of problems in such a patient and it is a potential risk". The appellant has also stated before us that "the present case involved obese patient which had inherent risk involved..." And yet, the appellants did not make requisite, essential arrangements in the operation theatre for managing the potential risk surgery. Although the appellants had got done pre- operative tests on the patient, the material on record points to conspicuous absence of pre-planning for the operation per se having regard to the specific physical and pathological condition of the patient. In this connection, the following two extracts from Pye''s Surgical Handicraft as appended by the complainant with his complaint are relevant:
(i) Preparation: "All patients undergoing surgery where the potential exists for bleeding should at the very least have blood grouping carried out so that should need arise blood can be cross matched for them rapidly. For major operations where a transfusion is to be expected the operation should not proceed without blood being available in theatre". (Page 34) (ii) Preparing For Planned Abdominal Surgery:
Haematological investigations:"Unanticipated bleeding may occur during any laparotomy and blood should be grouped. For major procedures several units of cross- matched blood should be available in the theatre before the operation".
(Page 258)(7) The appellants had not provided for machine operated artificial respirator. It is the case of appellants that majority of Nursing Homes where surgeries are performed for over a long period do not have machine operated respirators and that in the event of power failure, one has always to resort to manually operated respirator. But in the instant case, we find force in the argument of the complainant that with an obese patient with thick chest walls, a manual ambubag as used by the appellants might not guarantee adequate ventilation. We feel that the excuse of what happens in the event of power failure cannot stand as it is the duty of the Nursing Home to have stand by arrangements for such contingencies.
(8) The last attempt by the appellants to save the patient through intra-cardiac adrenaline injection was unfortunately unsuccessful because even according to the appellants, the needle failed to penetrate the heart due to extreme obesity. This also exposes the state of unpreparedness of the appellants knowing fully well that the patient is obese.
The aforesaid shows that the appellants had not anticipated likely complications that might arise in a major surgery on an obese patient with a rare blood group. Notwithstanding the inconclusive position on the cause of death, there are obvious deficiencies in the service of the appellants which have contributed to the death of the patient on the operation table. When even according to the appellants, the duration of surgery will get determined only after opening up of the relevant parts and discovery of the pathology of the patient, they were clearly unprepared for an operation which went beyond the estimated time. The appellants failed to take even the minimum care by not keeping the blood in adequate quantity in the theatre before they started the operation knowing that the patient was having a rare blood group. They failed to take normal care and diligence by not providing/ for a mechanically operated artificial respirator and an adequately long needle for an inter- cardiac injection knowing fully well that the patient was obese. While these are essential steps which should be taken in any major surgery, these should have been particularly essential in the instant case of a patient of potential risk. That the appellants totally failed in these respects finally resulting in the death of the patient on the operation table itself establishes their negligence and deficiency of their service in the operation. We concur with the State Commission''s reasoning and finding of negligence and deficiency in service on the part of the appellants. We, therefore, confirm the order of the State Commission. Appeal is dismissed. There is no order as to costs. Appeal dismissed.
