1.
Brief facts of the ComPlaint:
2. THE complainant Smt. Manju''s husband, late Mr. Anil Chawla, (hereinafter, "a patient" consulted the opposite party (OP -2), doctor at his clinic (OP -1) for his long standing and recurrent cold problem since 10 years and he was taking anti -cold medicines for many years but often he had inability to breathe from the right nostril, snoring at night and bitter taste in throat during nasal infection with running nose. The OP -2 examined him and diagnosed as the cartilaginous nasal septum was grossly deviated to right side and blocking the nose on the right nostril. After X -ray and Endoscopy investigations the OP -2 advised the patient to undergo a surgery and date was fixed on 1st October, 1998. As the patient''s son, Dhruva, Complainant No. 3 was suffering from adenoid, OP -2 performed successfully the adenoid surgery of Dhruva on 30th September, 1998 and was discharged on the same evening. On 1st October, 1998, since it was Dussehra as requested by patient OP -2 rescheduled the surgery for next day at 7.30 p.m. Therefore, the patient reached the Nursing Home of the OP -2 at 7.30 p.m. on 2.10.1998 straight from his office.
The Defence: The OP -2 conducted operation of Septoplasty with functional endoscopic sinus surgery with left maxillary clearance using Caldwell Luc Approach under General Anesthesia on the patient. Dr. Rajesh Kolte was an anesthetist. It was clear that, after proper radiological (x -ray) and blood investigations it was confirmed that the patient had gross deviation of the cartilaginous nasal septum. Surgery performed by OP2 on the patient was a non -invasive surgery, which has no surgical complications. Also, OP -2 as routine done endoscopy to determine the surgical steps. The operation started at 8.50 p.m. and was completed in an hour.
The OP -2 Dr. Amit Chadha submitted that, the attendant of the patient called him at 11.25 p.m. there was sudden cessation of respiration. The OP -2 examined the patient whose Pulse and BP were not recordable. Therefore, all emergency measures were carried out by OP -2 and the Anesthetist Dr. Kolte. Immediately cardiac massage was done, patient''s throat was checked for secretions, blood, gauze, which were absent, then the patient was intubated immediately with endotracheal tube by the anesthetist. Intermittent positive pressure ventilation was given with 100% oxygen started by the anesthetist through the tube with the help of portable Boyle''s Machine apparatus. Cardiac massage continued, IV adrenaline, atropine, soda bicarb and I/C adrenaline were given but the patient did not respond. The OP -2 called the physician, Dr. Vinay Bhomia, (OP -3) who came at about 11.30 p.m. and in a couple of minutes he revived the patient with the help of DC shock and Intra Cardiac adrenaline. There was no secretions/blood, in the oro -pharyngeal tract. The patient was thereafter shifted to ICCU of Navneet Memorial Hospital and was put on to ventilator with I.P.P.R. mode. The patient was attended by Dr. Guha, the doctor in -charge of the ICCU, at that time. The OP Nos. 2, 3 and Dr. Kolte were also present there. Also opinion of Dr. Parindra Desai, Neuro -Physician was also taken. The patient was diagnosed to have suffered a cardio -respiratory -arrest.
Observations:
3. WE have perused the affidavit evidences, the interrogatories and replies filed by the concerned parties and relevant medical documents on file. The OP -2 is an ENT and Endoscopic Sinus Surgeon holding the Degrees of M.S. (ENT) and DLO and has been practising since 1994. He is running a Nursing Home known as Jeevandhara Hospital (OP -1) having all facilities for ENT surgery.
4. THE OP -2 further, contended that the Complainants have concealed the material facts about the true condition/diseases suffered in pasts, but later on OP -2 came to know about the concealed facts; even the Complainants have also not disclosed the reality in their complaint. In past the patient was admitted and took treatment for his Cardiac and Urinary/Renal problems at various hospitals in year 1997. Thereupon we found that, the patient late Anil Chawla suffered from Cardiac as well as Kidney problems in the year 1997, which are discussed further.
On 28th June, 1997, at 7.30 p.m. Anil Chawla was admitted at in Laxmi Heart and Medicare, Ahmedabad because he had suddenly collapsed in the office and experienced uneasiness, heaviness, retro -sternal chest pain with perspiration. He was diagnosed as a known case of High Blood Pressure (HBP) since 1 year and not on regular treatment. The patient was properly treated with anti -hypertensive drugs like nitrates, sorbitrate, nifedifine and antiplatelet drugs. The Laxmi Hospital discharged on him 29.6.1997 as against medical advice.
5. THEREAFTER , the patient was admitted in Muljibhai Patel Urological Hospital, under treatment of Dr. Virendra Desai for about 25 days from 29.7.1997, as the Indoor No. 26259. He was diagnosed as Right ectopic ureter with hydro -nephrosis. He underwent surgery for the same. The hospital medical record revealed us some important findings as follows:
(a) The patient had given history of having hypertension for 3 years, he had taken treatment for 3 months but then had stopped taking the medications, and he did not take regular treatment.
(b) A fresh ECG was taken in Nadiad on 29.7.1997 and it was found to have the same changes as at Laxmi Hospital, though minimal, signifying cardiac pathology. The changes may have reduced as he was on antihypertensive and antianginal drugs.
We have perused the ICU records of Muljibhai Patel Urological Hospital, which clearly revealed the record of high blood pressure and he was put on anti -hypertensive drugs.
6. ON 1st August, 1997, the patient was further referred to Dharmsingh Desai Memorial Methodist Institute of Cardiology and Cardiovascular Surgery, Nadiad. The Cardiologist Dr. Mahpaekar Mashhadi DM had examined him and advised ECG and 2D Echocardiogram, but the complainant produced only ECG report and concealed the Echo report.
The evidence of OP -3, Dr. Vijay Bhomia, revealed that OP -3 was called by the OPs -1 and 2 when the patient was in critical situation in post -operative period. The OP -3 tried to revive patient (as stated in para 2 herein), but as there was lack of proper equipment and facility, OP -3 advised to shift patient. Thereafter, the patient was shifted to OP 4, the Navneet Hospital. OP -3 accompanied patient while shifting. The facts submitted by the OP -3 on oath which are not rebutted by any of the parties of the present case as the bare fact.
7. WE do not find any expert evidence as is led by the Complainant to establish any negligence or deficiency in service, or any question of the providing short services by any opposite parties.
8. IN the evidence of the OP -4 that since he is in no way concerned with the treatment, which was provided by the treating doctors, OP Nos. 2 and 3. The patient was brought in the late night, he was in so much serious condition, who was admitted in ICCU for further management, but subsequently he died.
Even, prior to shifting patient to OP -4, during the post -operative period, the patient was under observation of anesthetist who was breathing normally through the mouth. He was given left lateral position. His pulse was regular 96/min and BP was 130/84 mm of Hg. An emergency was aroused at 11.25 p.m. which was managed by OP -2, the anesthetist and OP -3. Thereafter, the patient was shifted to Navneet Hospital ICCU. Therefore, we do not find any deviation of standard of practice adopted by OP -2 and OP -3 during the course of entire treatment.
9. WE have referred medical text books and literature on ENT surgeries and searched for the complications of "Septoplasty with Functional Endoscopic Sinus Surgery". There are no reports of fatal complications due to such surgery. It is well known that, there are risks and complications for all surgeries; those for deviated septum and Septoplasty surgeries are very infrequent, but it includes nasal obstruction, bleeding, chronic nasal drainage, eye damage, numbness of facial structures, septal perforation, alteration of sense of smell or taste, and failure to resolve any associated nasal or sinus problem.
10. WE are quite surprised to note that, why the complainants have not made the anesthetist Dr. Kolte as a necessary party in this case? The operation was performed under General Anesthesia, and it is known that there are more instances of such fatal complications due to anesthesia. The complications of anesthesia do arise, medical negligence is often a contributing factor. But, at this stage, it is beyond our consideration because considerable time, of more than a decade, has been elapsed now. Also, in the context of "Audi alteram partem" one of the most cherished and sacrosanct principles of the Natural Justice or equity, we are unable to hold anesthetists liable in this case, who was not made a party in this complaint.
In our opinion, Anesthetists should fully inform patients of the possible complications from anesthesia. A particular type of serious harm that can occur because of anesthesia error. An anesthetist has the responsibility to correctly regulate a patient''s consciousness during and after a surgical procedure. When used properly, anesthesia is a safe and effective method of sedation. Improperly administered anesthesia can result in significant injury to a patient, including heart attack, death, nerve damage, stroke, paralysis, etc.
11. IN this case, it is apparent to be a "Contributory Negligence", that there was a mistake on the part of patient as well as the complainant No 1 who did not disclose about the previous medical treatment and disease to the OP -2. Sometimes the unexpected results may not be only due to negligence of the doctor but also due to negligence of patients or relatives. If anybody undergoes any medical treatment, or is about to undergo a medical surgical procedure, one should take care to disclose relevant truth and facts to the doctor. The Court recognizes, in addition, that patients are responsible for exercising ordinary care in revealing information to their physicians and those physicians have the primary responsibility for eliciting an accurate history from their patients due to their greater wealth of medical knowledge. This responsibility cannot be fully achieved without the truthful admissions of the patient. Thus, if the patient wilfully chooses to withhold information from the physician, the physician cannot be liable for a medical negligence.
12. WE have relied upon several judgments of Hon''ble Apex Court on medical negligence and also referred the Bolam''s test in this context. In the Bolam''s case (Bolam v. Frien Hospital Management Committee,, (1957) 1 WLR 582), it was also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. Applying the above principles in the instant case, we are convinced that there is no medical negligence on the part of OP -2 and OP -3 who are qualified doctors, and they have used their best professional judgment and due care during surgery and during complications.
Even on, considering the evidence on record, we could find that the deceased patient Mr. Anil Chawla suffered from heart condition and failed to disclose such condition, which proximately caused his cardiac arrest. If the patient had revealed this information to the OP -2, then OP -2 could have postponed his procedure until it was ideal for surgery. Since, the OP -2 operated without the knowledge of heart disease, he cannot be found negligent. Hence, in our view there is no medical negligence by any opposite party. Accordingly, the complaint is dismissed. Parties have to bear their own costs.
