ORDER
P.D. Shenoy, Member
Case of the complainant.
1. Smt. Mohinder Kaur was admitted for surgery at Post-Graduate Institute of Medical Education & Research, Chandigarh (hereinafter referred to as PGIMER) at 1 p.m. on 7.3.2001 in the emergency ward under the supervision of Dr. V.K. Khosla, Head of Neuro-Surgery Department. Tests recommended by Dr. Khosla were conducted on 8.3.2001. It is the say of the complainant that angiography of the brain and other tests confirmed leaking aneurysm in the brain and immediate surgery was advised which was not done. Surgery was not performed on 9.3.2001 due to ‘Holi’ holiday and non-availability of staff. Dr. Khosla assured the complainant that the surgery would be conducted on 10.3.2001 and the complainant should make necessary arrangements like purchase of medicines etc. At about 1.30 p.m. on 10.3.2001 the complainant was told by the opposite parties that operation theatre (hereinafter referred to as OT) was not available. The condition of the patient continued to deteriorate and, therefore, on 11.3.2001 she was admitted to intensive care unit after it was declared that her brain was dead. Patient was declared dead eventually on 14.3.2001. Alleging negligence and carelessness, the complainant claimed a total compensation of Rs. 17,50,000.
Case of the Opposite Parties:
2. The OP Nos. 1, 2 and 4 PGIMER, Dr. V.K. Khosla and Dr. Kajal Jain in their written statements denied the allegations of negligence, deficiency and unfair trade practices on their part. They have submitted that despite repeated verbal requests the relatives of the patient Smt. Mohinder Kaur did not give any written consent for surgery of the brain. On 8.3.2001 Dr. Khosla explained to the relatives about the high risk involved due to the patient’s old age, hypertension, drowsy state, multiple brain haemorrhages and double aneurysm. They were also told that they were free to explore other treatment options available elsewhere. Endovascular procedure was suggested to the patient’s daughter and son-in-law Dr. Navdeep Khaira who thought that this procedure was a better option than open brain surgery. At the request of the relatives Dr. Khosla gave a letter of reference in the name of Dr. Karapurkar, a Neurosurgeon working in Apollo Hospital, New Delhi for eliciting his expert opinion. Xray films were made available to the relatives of the deceased at 5 p.m. on 8.3.2001 after the deposit of Rs. 1,000 as security. Neurosurgeons were willing and prepared to do the main surgical procedure but there was no written consent. It was not disputed that the condition of the patient deteriorated around 10.00 a.m. on 11.3.2001 when she was shifted from private ward to ICU. At about 12.45 p.m. she became unfit for surgery. Later in the night she was declared brain dead and ultimately declared dead on 14.3.2001. OPs 1,2 and 4 denied the allegations made by the complainant that brain surgery was postponed due to holiday and non-availability of the OT. All preparations were made in anticipation of prior consent.
3. OP No. 3 Dr. Promila Chari, Head of the Department of Anaesthesia, PGIMER filed her separate written statement wherein, she had alleged that she had no contact whatsoever at any point of time with the patient or her relatives nor she was responsible for the non-performance of any surgery that might have been required. There was no negligence on her part as she was on sanctioned leave on 10.3.2001 and was not on duty on 9.3.2001, which was the holiday, and 11.3.2001, which was the Sunday, therefore, she was absent from 9.3.2001 to 11.3.2001.
Evidence:
4. The complainant led evidence in the shape of his own affidavit. Affidavit of Dr. Navdeep Singh Khaira, son-in-law of the patient, Prof, and Head of Nephrology Unit, DMC & Hospital, Ludhiana was also filed. The OP Nos. 1,2 and 4 led evidence in the shape of affidavits of Dr.V.K. Khosla, Professor and Head, Department of Neurosurgery, PGIMER; Dr. Kajal Jain, Assistant Professor, Department of Anaesthesia, PGIMER; Dr. N.K. Khandelwal, Additional Professor, Department of Radio Diagnosis & Imaging, PGIMER; Dr. Rajiv Bapuraj, Associate Professor, Department of Radio Diagnosis & Imaging, PGIMER; Dr. Harpreet Singh, Senior Resident, Department of Neurosurgery, PGIMER; Dr. Krishna Madan, Junior Auditor, Fee Section, PGIMER and Ms. Kiran Sharma, clerk, DSA Section, Department of Radio Diagnosis & Imaging, PGIMER.
State Commission’s decision:
5. After going through the records of the case and evidence, the State Commission held that “the open brain surgery of the patient Smt. Mohinder Kaur could not be undertaken due to the absence of DSA films and also due to the fact that no consent, specific for the open brain surgery was given. The attendants of the patient were not decisive for getting the surgery done at PGIMER by way of open brain surgery and the fault could not be found with the OPs for deliberately postponing the openbrain surgery. There appears to be no valid reason for the OPs to avoid the open brain surgery of the patient Smt. Mohinder Kaur and if consent had been given specifically for it, the surgery would have been undertaken on 10.3.2001 when all preparations had been made. We are of the considered opinion that the complainant has failed to substantiate the allegations made in the complaint case against the OPs that the OPs were negligent and deficient in rendering service to the complainant in respect of the patient Smt. Mohinder Kaur who died at PGIMER on 14.3.2001. The complaint lacks merit and is dismissed”.
6. Aggrieved and dissatisfied by the order of the State Commission complainant has filed this appeal before us.
Submissions of the learned Counsel for the appellant:
7. The learned Counsel Mr. Sanjiv Sharma submitted that the case records show that the patient was prepared for surgery and if consent was not secured for the same why the patient was prepared for surgery he averred. If DSA films were not available for surgery this would have been clearly mentioned in the case sheet.
8. A reference letter to a surgeon at Delhi was given who had expertise in Endovascular intervention but the patient’s attendants opted for surgery at PGIMER. The relevant case sheet reads as under:
In view of her age and double aneurysm risk involved are explained to son and option for Endovascular intervention given to him. A reference letter for the same also given but pt’s attendants opted surgery here only.
Signed
Rajesh
PGIMER
9. He invited our attention to page 26 of the State Commission’s order “In the absence of any affidavit from Dr. Rajesh, not much reliance can be placed on the aforesaid endorsement regardingthenon-availability of the anaesthetist as a cause for the surgery not being conducted on 10.3.2001 and particularly in view of the deposition made by Dr. Kajal Jain that number of surgeries were undertaken in which team of anaesthetists assisted the surgery indifferent specialties on 9th, 10th and 11th of March, 2001”.
10. He submitted that PGIMER should have produced the affidavit of Dr. Rajesh. The State Commission failed to discuss the case sheet in detail. In this case Mr. Bansal, M.P. spoke to Dr. Khosla and Dr. Chari to provide an anaesthetic team for conducting brain surgery on the patient. Mr. Sharma drew our attention extensively to the Inquiry Committee reports especially the one conducted by Dr. J.S. Chopra.
Extracts of the report of Dr. Jagdish S. Chopra:
Dr. Y.K. Batra, Professor Department of Anaesthesia admitted before the Committee of inquiry that he contacted Dr. V.K. Khosla over the telephone on 9.3.2001 who informed him that today being HOLI and holiday the case will be taken up for surgery later. He admitted that he discussed about this case over the telephone with Dr. P. Chari and informed her about the message received from Dr. Shivinder Gill. He further stated that Dr. Chari told him that Saturday is the cleaning day of the main O.T. and it may not be possible to conduct surgery on Saturday.
Dr. Y.K. Batra admitted that he made a telephone call to Prof. P. Chari in the morning of 10.3.2001 as was conveyed to him by Sh. Gopal Singh. He has admitted that he informed Dr. Chari about Dr. Rajesh Chhabra’s discussion with him during the journal club on 10.3.2001. He has stated that she informed him that she was receiving pressure from various individuals. She also told him to let the Neurosurgeons contact her regarding this case. However, he has denied that he cancelled the case of Mrs. Mohinder Kaur for providing Anaesthesia Team on 10.3.2001 (Prof. P. Chari during her statement has denied that she had any discussion over the telephone with Dr. Batra in the morning of 10.3.2001, although this information has also been given by Dr. Kajal Jain during her statement that the case was cancelled after the telephone discussion between Prof. P. Chari and Prof. Y.K. Batra).
Dr. Harpreet Singh, Sr. Resident admitted that he saw Mrs. Mohinder Kaur after she was shifted from the Emergency to the Private Ward around 6.00 p.m. on 8.3.2001 and he was in-charge of this patient until 11.3.2001 when the patient was shifted to 1CU. Dr. Harpreet Singh recognized his handwriting and admitted of making notes in the case file of the patient during her admission. He has also admitted that the patient was conscious, orientated and moving all four limbs equally at the time of admission and she was also responding to the commands. He has admitted that as per instructions from Prof. V.K. Khosla he prepared the patient for surgery and kept her fasting on 8.3.2001 and 9.3.2001 when he was about to contact the Anaesthesia-Consultant on call, he was told by Dr. (Mrs.) Khaira that her husband Dr. N.S. Khaira has already talked to Dr. Batra and Dr. Batra has assured help. He contacted Dr. Rajesh Chhabra and later Dr. Khosla, who advised him to get the case fixed for Emergency Surgery on 9.3.2001 and at around 11.00 a.m. on the same day, he talked to Dr. Batra from Mrs. Khaira’s mobile phone and informed him about the condition of the patient. Dr. Batra told him that he was aware of this patient and he is trying to fix-up the case. He has stated that he contacted Emergency O.T. Sr. Resident at 1.00 p.m. on 9.3.2001 and was told that Dr. Kajal Jain, Asstt. Professor (Anaesthesia) was on call duty on 9.3.2001 and 10.3.2001. He has corroborated that Dr. Rajesh Chhabra did ring up Dr. Kajal on her cellular phone and this conversation occurred in his presence. He has also stated that Dr. Rajesh also rang up Dr. Chad’s residence in his presence, but the telephone was connected to an answering machine. He had kept the patient fasting on 9.3.2001 and also on 10.3.2001. He has stated that in spite of their best efforts the patient could not be operated on 10.3.2001 and her condition deteriorated and she became unconscious after she went into status epilepticus.
Statement of Dr. Kajal jain-“On 9.3.2001 at 11.00 p.m. she received a telephone call on her cellular phone from Prof. Chari and she informed her of having received a telephone call from Sh. Pawan Kumar Bansal, local M.P. regarding aneurysm surgery to be done on 10.3.2001. She also informed Dr. Chari that Dr. Chhabra had contacted her in the evening of 9.3.2001 regarding surgery on the 5th floor O.T. on 10.3.2001. Dr. Chari instructed her over the telephone that Neurosurgeons should contact Prof. (Mrs.) J. Wig for seeking her permission.
Dr. Kajal Jain was already in touch with Prof. Chari over her telephone and Dr. Chari had told her that this case should not be done and be postponed, but she did not give any reasons for such a step.
Dr. Kajal Jain conceded that she wrote the notes in the case file of the patient Mrs. Mohinder Kaur on 12.3.2001 at 6.30 p.m. on a plain white sheet and not on a regular hospital stationery. She denied of having added this page of her own, since there are notes on this pages from other persons also. She also conceded that she did write these notes after the patient had deteriorated and shifted to ICU and this was to counter balance the writings on the file on page-6 by the Neurosurgeons and she wanted to contradict it. This tact was in the full knowledge of HOD (Anaesthesia). She conceded that she was instructed by Prof. P. Chari to go to ICU and write such notes.
Dr. Kajal conceded that she did talk to Dr. Chhabra on the telephone a few days after the death of Mrs. Mohinder Kaur, but she did not know the exact date and time about this discussion. (Dr. V.K. Khosla in his evidence has produced the recorded tape of this discussion between Dr. Kajal and Dr. Chhabra in which Dr. Kajal told Dr. Chhabra that it was Prof. P. Chad, who restrained her for providing Anaesthesia team for Mrs. Mohinder Kaur, although she personally was ready to help in this case.
11. Learned Counsel submitted that interdepartmental rivalry has resulted in non-provision of anaeshetic team for conducting surgery on Mrs. Mohinder Kaur. He submitted that a reference letter was given by Dr. Khosla to Dr. Karapurkar at Delhi to enable the relatives of the patient to meet Dr. Karapurkar for endovascular intervention but the complainants changed their decision.
12. Learned Counsel for the appellant drew our attention to the case sheets dated 8.3.2001 and 9.3.2001 wherein it is mentioned “prepare for surgery, discussed with anaesthesia consultant on emergency duty for clipping-CM (Coming Morning). Case discussed by Dr. R. Chabra with Dr. Kajol and need for urgent surgery explained. Repeat CT Scan done film to be collected. No response from Anaesthetist for surgery -CM Head Shave being withheld. Blood arranged. 10.3.2001 case was not taken for emergency services. Discussion with Anaesthesia Consultant, one/various reasons unable to provide anaesthesia team on 10.3.2001.”-
Sd/-Rajesh
13. Mr. Sharma further submitted nowhere in the case record it has been stated that surgery could not be done due to absence of DSAs or consent from the patient’s relatives. He stressed that reports of the both Inquiry Committees indicted the doctors.
14. Concluding portion of the report of the First Inquiry by Dr. J.S. Chopra-“In nutshell it is clear from the evidences recorded from the faculty of the Depts. of Neurosurgery, Anaesthesia, Orthopaedic and Paramedical Staff that the neurosurgeons made all efforts for carly surgery on Mrs. Mohinder Kaur and, therefore, I do not find any fault of Prof. V.K. Khosla or his other colleagues for delay in surgery on Mrs. Mohinder Kaur except that probably Prof. V.K. Khosla had been rude with the relatives of Mrs. Mohinder, for which he needs to improve his public image for politeness and courtesy.
15. Regarding the role of anaesthetists it has been observed that it has been far from satisfactory in case of Mrs. Mohinder Kaur for providing the anaesthesia team for surgery on her by the neurosurgeons. It is also observed that however, in spite of the so many best things that this department has been providing, they failed to discharge their duties in case of Mrs. Mohinder Kaur for which the role of faculty involved is worth analysing.
16. There is a tape recorded telephone discussion of Dr. Kajal Jain with Dr. Rajesh Chhabra a few days after the death of Mrs. Mohinder Kaur. Dr. Kajal is still not aware that her conversation with Dr. Chhabra was being recorded. This tape recording was produced in evidence by Prof. V.K. Khosla. After hearing this conversation one comes to the conclusion that she was restrained by Prof. Chari for providing anaesthesia team for surgery on Mrs. Mohinder Kaur. However, this does not absolve Dr. Kajal since she was on an emergency duty as consultant anaesthetist and should have discharged her duties for providing anaesthesia team for Mrs. Mohinder Kaur. Therefore, Dr. Kajal acted as an irresponsible consultant anaesthetist in discharging her duties and responsibilities. She also did not approach Prof. Y.K. Batra for permission when Prof. Y.K. Batra became acting HOD anaesthesia on 10.3.2001. The actions of Prof. Y.K. Batra were most irresponsible even when he became acting Head of Dept. of Anaesthesia on 10th March, 2001 since Prof. Promila Chari had taken leave for this date and Prof. Jyotsna Wig another Professor in the Dept. of Anaesthesia was already on leave. Prof. Batra was informed about this acting headship at about 9.30 a.m. by the peon of Prof. Chari to which he conceded. He has also conceded that he did receive an official information in writing about his being acting HOD around 10.30 a.m. on 10.3.2001.
Prof. Batra acted in a most naive fashion when he stated that nobody from the Dept. of Neurosurgery or Dept. of Anaesthesia approached him for providing anaesthesia team after he officially became the acting HOD of the Dept. of Anaesthesia on 10th March, 2001 from 10.30 a.m. to 1.30 p.m. Can anybody imagine of such person giving such an irresponsible statement when he fully knew about the case of Mrs. Mohinder Kaur for the last 24 hours? Dr. Rajesh Chhabra, Asstt. Prof. Neurosurgery virtually begged him for providing an anaesthesia team for Mrs. Mohinder Kaur only about an hour before Dr. Batra came to know officially that he was acting HOD anaesthesia on 10th March, 2001. He could have easily constituted an anaesthesia team and informed the neurosurgeons. He could have easily passed his orders as acting HOD anaesthesia for an Anaesthesia team for Mrs. Mohinder Kaur. Why was and what for he was afraid of anyone else? One has to give credence to the statements of relatives of Mrs. Mohinder Kaur, that he was afraid that his ACR will be spoiled by Prof. Chari if he acted against her wishes and Prof. Chari was very “daddi” (Prof. Batra denied that he made such statement to the relatives).
Submissions of the learned Counsel for the responden:
17. Mr. Rajesh Garg submitted that reports of the fact finding inquiries are not binding on the judicial Forum. In this connection, he quoted in Shamkant v. State of Maharashtra, wherein it is held that “the findings of the Commission of Inquiry that there is no reliable and independent material to hold that Ratiram was ill-treated in police custody and the injuries found on him possible might have been sustained by him prior to his arrest is not binding on this Court when the Court has arrived to its own conclusion on the independent assessment of the persuasive evidence that Ratiram was subjected to ill-treatment by the appellant for extorting a confession or any information leading to the detection of the brass idol and other stolen articles. In fact, the circumstances veering the case and the numerous injuries found on the deceased Ratiram and PW 13, bearing mute and chilling testimony to the police brutality demonstrably establish the prosecution case as against the appellant.”
Similarly, in T.T. Antony v. State of Kerala and Ors. , it is held that “The report and findings of the Commission of Inquiry are meant for information of the Government. Acceptance of the report of the Commission by the Government would only suggest that being bound by the rule of law and having duty to act fairly, it has endorsed to act upon it. The duty of the police -investigating agency of the State is to act in accordance with the law of the land. Acting this, the investigating agency may with advantage make use of the report of the Commission in its onerous task of investigation bearing in mind that it does not preclude the investigating agency from forming a different opinion under Sections 169/170, Cr.P.C. if the evidence obtained by it supports such a conclusion.
18. He further submitted that, it is a wellknown fact that inquiries under the Commission of Inquiry Act are some times conducted by even sitting Judges of Hon’ble Supreme Court and High Courts. If inquiry is conducted under the aforesaid Act, is not binding even on the investigating agencies, a mere fact finding inquiry conducted departmentally can hardly be held to be binding on this Commission.
19. Mr. Garg brought to our notice certain inconsistencies even in the inquiry report. He invited our attention to two paragraphs of the inquiry. “The actions of Prof. Y.K. Batra were most irresponsible even when he became acting Head of Dept. of Anaesthesia on 10th March, 2001 since Prof. Promila Chari had taken leave for this date and Prof. Jyotsna Wig another Professor in the Dept. of Anaesthesia was already on leave. Prof. Batra was informed about this acting headship at about 9.30 a.m. by the peon of Prof. Chari to which he conceded. He has also conceded that he did receive an official information in writing about his being acting HOD around 10.30 a.m on 10.3.2001”.
Prof. Batra acted in a most naive fashion when he stated that nobody from the Dept. of Neurosurgery or Dept. of Anaesthesia approached him for providing anaesthesia team after he officially became the acting HOD of the Dept. of Anaesthesia on 10th March, 2001 from 10.30 a.m. to 1.30 p.m. Can anybody imagine of such person giving such an irresponsible statement when he fully knew about the case of Mrs. Mohinder Kaur for the last 24 hours? Dr. Rajesh Chhabra, Asstt. Prof. Neurosurgery virtually begged for providing an anaesthesia team for Mrs. Mohinder Kaur only about an hour before Dr. Batra came to know officially that he was acting HOD anaesthesia on 10th March, 2001. He could have easily constituted an anaesthesia team and informed the neurosurgeons. He could have easily passed his orders as acting HOD anaesthesia for an Anaesthesia team for Mrs. Mohinder Kaur. Why was and what for he was afraid of anyone else. One has to give credence to the statements of relatives of Mrs. Mohinder Kaur, that he was afraid that his ACR will be spoiled by Prof. Chari if he acted against her wishes and Prof. Chari was very “daddi” (Prof. Batra denied that he made such statement to the relatives).
20. The above paragraphs show that they contain an element of bias. On the other hand a perusal of the role of Prof. Promila Chari in the same report reads as follows:
Prof. Promila Chari, Head Dept. of Anaesthesia of PGI Chandigarh is one of the most efficient and hard working faculty member of PGI. She has brought discipline in the Dept. of Anaesthesia. Her role is laudable in providing excellent services to the needy patients. It is noteworthy that she has increased the daily operating tables for all the surgeons and particularly for neurosurgeons even with the shortage of the faculty in the Dept. of Anaesthesia.
21. Role of Prof. Promila Chari has been commended in no uncertain terms in the above paragraph.
22. Further, page 76 of the report speaks about role of Junior Medical Staff and Paramedical staff. The report says as follows:
All of them discharged their duties with responsibilities for care of Mrs. Mohinder Kaur and nothing against them have been found in this inquiry.
23. Learned Counsel further submitted that to conduct surgery, the surgeons must have the DSA films in the operation theatre. These DSA films were not returned by the complainants till 12.3.2001. The relative of the deceased made an application to the Medical Superintendent for taking DSA films from the Radiology Department. The complainant received the films from the Radiology Department on 8.3.2001 at 4.45 p.m. in the evening and subsequently it was returned on 12.3.2001 only.
24. Learned Counsel for the respondent submitted that surgery on the patient could not be conducted in the absence of a specific written consent by her attendants. Patient’s son-in-law himself being a doctor was aware of the importance of the informed consent. The treatment record shows that two specific consents were given by the attendants including Dr. Navdeep Singh, son-in-law of the patient for different procedures such as Angiography on 8.3.2001 and Ventricular Drain on 11.3.2001. The non-return of the DSA films on time and absence of written consent clearly shows the ambiguity in the minds of attendants to get the surgical procedure done by the respondents.
25. Mr. Garg further submitted that the note recorded by Dr. Chhabra, senior resident at page 78 of the State Commission record has to be read in the context of absence of consent. Without a written consent no anaesthetist can administer anaesthesia. There is no record that institute or any one of its doctors had any animosity towards the patient or her attendants. The allegation that no surgery was performed at the institute between 9th and 11th March, 2001 is falsified by the lists of surgeries performed on each of these days which are at pages 272 to 274 of the record of the State Commission. Hence, the question of anaesthesia or operation theatre not being available for surgery is hypothetical. The treatment records relating to the angiography and various tests conducted on the patient, deputation of two Assistant Professors when the patient had epileptic seizure, shifting of the patient to ICU where required preparation of the patient for surgery in anticipation of the consent etc. speak volumes about the care and attention paid to this patient by the Institute. Hence, the State Commission had rightly dismissed the complaint.
Findings:
26. First of all let us see the conclusions of the two inquiry reports. We have extracted below certain parts of the conclusions of the inquiry report conducted by Dr. Raj Bahadur, Inquiry Officer:
The undisputed facts of the case are that late Smt. Mohinder Kaur, wife of Shri H.S. Tuli, was admitted to PGI, Chandigarh, on the night of 7.3.2001, following a subarachnoid haemorrhage (SAH). She was examined by Dr. Harpreet Singh, Senior Resident in Neurosurgery, PGI, Chandigarh in the emergency OPD, and was admitted under Dr. V.K. Khosla, Head of Department of Neurosurgery, to whom she had been informed by name. She was a known patient of high blood pressure, and was taking treatment for the same. She was conscious on admission and had no abnormal neurological signs. The diagnosis of SAH had been confirmed at Ludhiana by a CT scan. Appropriate medical treatment was started and angiography (DSA) was fixed for the following morning. About midnight, she developed restlessness and her blood pressure was found to be elevated, for which appropriate treatment was given.
Cerebral angiography was performed on 8.3.2001 which showed two aneurysms, one each on the anterior communicating artery and the left middle cerebral artery bifurcation. She was shifted to the emergency OPD and then to the private ward following this procedure where she was drowsy and was complainant of severe headache. She had also developed neck rigidity.
Dr. Khosla saw the patient immediately after she was shifted following DSA by the emergency OPD. He explained to Dr. N.S. Khaira, son-in-law of the patient, that she had two aneurysms and in view of her age, associated high blood pressure, double aneurysm, drowsy and disoriented state, open brain surgery would carry a very high risk. Another option for the treatment, endovascular intervention (“coiling”), was also told. Dr. Khaira and Dr. (Mrs.) Khaira met Dr. Khosla around 5.00 p.m. on 8.3.2001 and were again explained the entire situation. On their request, a reference letter addressed to Dr. Anil Karapurkar of Apollo Hospitals, New Delhi, was given to them. They also got the DSA films issued from the Radiology Department, PGI, Chandigarh, on 8.3.2001 for seeking a second opinion. In the meantime, the patient was kept ready for surgery.
Dr. Khaira spoke to Dr. Karapurkar on telephone who informed him that he was going out of station for a few days and can give his opinion only after seeing the X-ray (DSA) films. The family decided to have open surgery done at PGI, Chandigarh, and informed Dr. Khosla of the same. The latter assured them that surgery would be performed on 10.3.2001.
Dr. Rajesh Chhabra, Assistant Professor of Neurosurgery, contacted Dr. Kajal Jain, Consultant Anaesthetist on emergency duty, and explained the need for urgent surgery for this patient. However, there was no response from the anaesthetists in this regard. In the meantime, blood and operation materials for the surgery had been arranged for the patient.
Smt. Mohinder Kaur wife of Shri H.S. Tuli was admitted to PGI Chandigarh on the night of 7.3.2001 following SAH. She underwent DSA the following morning (8.3.2001) and was found to have two aneurysm(s). The family were explained the risk of open surgery and a safer alternative of “coiling” of the aneurysm. Since the concerned person, Dr. Anil Karapurkar, would not have been available at New Delhi to give his opinion, the family decided to get the open surgery done at PGI, Chandigarh. The family’s decision has been recorded by Dr. Rajesh Chabhra in the case records. The patient, for various reasons, could not be operated upon on 8.3.2001, 9.3.2001 and 10.3.2001. She had another bleed (SAH) on 11.3.2001, following which she deteriorated and died on the night of 13/ 14.3.2001.
Patients with SAH need to be operated upon as an emergency and it is a sad commentary on the functioning of a premier medical institute of this region for having failed to get it done. Whereas the neurosurgeons got preparations done for the surgical procedure, they could not do so for want of an informed consent and the readiness of the anaesthetist to take up the case.
In view of the above facts, Dr. P. Chari, Dr. Y.K. Batra and Dr. Kajal Jain of the department of Anaesthesia have not performed their duties upto acceptable norms/ standards.
27. This report also mentions the statement of Dr. Rajesh Chhabra that on 8.3.2001 in the evening came to know that patient’s attendants were willing for surgery at PGIMER, Chandigarh but written consent for surgery was not given at that time. He also mentioned that there was probably some hesitation in giving consent for surgery on the part of the relatives. There is also a statement of Dr. V.K. Khosla which was recorded by this Inquiry Committee wherein he has stated further no written statement was given by the patient’s attendants for an open brain surgery. The DSA films of the patient were returned to the Radiology Department only on 12.3.2001.
28. As against this, we have another inquiry report conducted by Jagdish S. Chopra, Inquiry Officer. We have taken certain extracts which are reproduced below:
1. Prof. Promila Chari, Head, Dept. of Anaesthesia of PGI, Chandigarh is one of the most efficient and hard working faculty member of PGI. She has brought discipline in the Dept. of Anaesthesia. Her role is laudable in providing excellent services to the needy patients. It is noteworthy that she has increased the daily operating tables for all the surgeons and particularly for neurosurgeons even with the shortage of the faculty in the Dept. of Anaesthesia. However, she faultered in case of Mrs. Mohinder Kaur. Therefore, it is concluded that Prof. Promila Chari, Head, Dept. of Anaesthesia also did not discharge her duties and responsibilities in the utmost manner, which is expected from a head of department of PGI. The saga of Mrs. Mohinder Kaur has blurred her image as a responsible officer of PGI.
2. Role of Junior Medical Staff all of them discharged their duties with responsibilities for care of Mrs. Mohinder Kaur and nothing against them have been found in this inquiry.
3. Role of PGI, Chandigarh-This is the most premier Institute and Hospital in the Northern India which cater for special care for patientsfrom U.T. Chandigarh, Punjab, Haryana, Himachal Pradesh, Jammu and Kashmir, and Southern Parts of UP, Uttranchal and Rajasthan. Patients do come from other parts of India also for the speciality and super speciality treatment in this Institute. The Institute provides first class care for such patients. The faculty of this Institute is highly trainedand experienced. Institutes of this stature should not be denounced or castigated for an irresponsible act of an individual or a few individuals. Tarnishing the image of this Institute will ultimately harm those who seek help from this Institute. This Institute caters for over one million patients annually. Let us appreciate the positive role of this Institute for providing care to the vast majority of ailing humanity. Healthy criticism should be tolerated because the feed back is a healthy sign for improvement. Input to the Instititute is of paramount importance for a good output as expected. There is no fault of PGI or its authorities in discharging its role in the case of Mrs. Mohinder Kaur.
Recommendations: Departmental action be taken against the three anaesthetists who have not discharged their duty with responsibility. Dr. Kajal Jain, Prof. Y.K. Batra and Prof. Promila Chari need to be reprimanded for their role in case of Mrs. Mohinder Kaur. All three were equally irresponsible.
29. If we look at these extracts of the reports of both the Inquiry Committees have not come to a categorical conclusion that the DSA films, which were taken by the complainants for showing the same to Prof. Karapurkar at New Delhi were returned to the institute prior to 12.2.2001 to enable the surgery being performed. The Inquiry Committees have not also categorically given a finding that there was a written informed consent given by the attendants/ relatives of the patient to enable the surgeons to proceed with the surgery. There is also no finding that on the crucial days i.e. 9,10 and 11th March, the operation theatres were not functional. On the other hand it is on record the anaesthetists were working on these three days and several surgeries have been performed including on the ‘Holi’ day.
30. Though the inquiry reports can be used as inputs in the decision making process it is not m andatory for the Consumer Fora to give its judgment relying totally on the reports of the inquiry conducted by the medical institutes. Even the inquiries conducted as per Commission of Inquiry Act have limited use and they are not binding on the investigating authorities as per the following citations quoted by the learned Counsel for the respondents.
(a) T.T. Antony v. State of Kerala and Ors. ; and
(b) Shamkant v. State of Maharashtra .
DSA Films
Learned Counsel for the appellant submitted that DSA films were not required for performing surgery as there a report on the DSA films was available in the treatment records of the hospital, on the basis of which surgery could have been performed. This submission is not supported by any medical literature. State Commission has noted at page 14 of its order that the complainant received the films from the Radiology Department on 8th March; further notings have been made on 8th March regarding the return of DSA films to the Radiology Department. The complainant was entitled to summon Dr. Rajesh Chhabra as its own witness wherein it is mentioned DSA films returned to the Radiology Department and CT Scan with the patient. Further, it is mentioned in view of her age and double aneurysm risk involved are explained to son and option for endovascular intervention given to him. A reference letter for the same also given but patient’s attendants opted surgery here only-Signed by Rajesh. Neither Dr. Rajesh Chhabra has given any affidavit nor the complainant summoned him as a witness, his statement recorded on the treatment record that relatives of the patients opted for surgery at PGIMER only loses credibility.
31. The respondents have led adequate documentary evidence and also oral evidence. The State Commission order specifically notices affidavits of the employees of the Radiology Department who were not cross-examined by the complainant and the evidence of the employees clearly indicates that the DSA films were returned to the department only on 12th March.
Express Written Consent:
Express written consent is to be obtained for: (i) all major diagnostic procedures; (ii) general anaesthesia; (iii) surgical operations: (iv) intimate examinations; (v) examination for determining age, potency and virginity; and (vi) in medico-legal cases.
32. Brain surgery is a major surgery requiring several hours and use of general anaesthesia. Informed consent for high risk in writing has to be obtained either from the patient or from her close relatives and if that is not taken and if the patient becomes paralysed or dies then certainly there are chances that the patient’s relatives would allege negligence on the part of the treating surgeons and the hospital. Hence, informed consent is very essential.
33. Informed consent-The concept of ‘informed consent’ has come to the force in recent years and many actions have been brought by patients who alleged that they did not understand the nature of the medical procedure to which they gave consent. All information must be explained in comprehensible non-medical terms preferably in local language about the : (i) diagnosis; (ii) nature of treatment; (iii) risks involved; (iv) prospects of success; (v) prognosis if the procedure in not performed; and (vi) alternative methods of treatment. The three important components of such consent are information, voluntariness and capacity. (Dr. Jagdish Singh and Vishwa Bhushan (1999), “Medical Negligence and Compensation” Bharat Law Publications, Jaipur).
34. Navdeep Khaira, son-in-law of the deceased has stated that as a doctor he was aware of the value of the consent, which was required shortly before surgical procedure and he would have himself given this or asked his father-in-law to give the consent and if that was refused to be taken on record and he would have insisted taking the consent on record which he has not done.
In this case it was not possible for surgeons to perform surgery without an express written consent from the attendants of the patient especially, when the son-in-law of the patient himself is a highly qualified doctor he would have definitely known the need and importance of the express written consent for performing high risk brain surgery.
35. In Thatnil Selvi v. Dr. Sooriya Kala Surya Hospital II (2007) CPJ 216 (NC), we have held that
The consent forms signed by the husband of the complainant reveals that
(a) Procedure/surgery to be performed has not been mentioned in clearly understandable terms;
(b) The procedure/surgery has not been explained to the patient or guardian in simple understandable terms in the local language;
(c) Many columns are blank;
(d) The signature of the husband of the patient has been taken in the column meant for witness which can mean either there was no consent from the patient or guardian or to be liberal to the opposite parties it can mean there were no witnesses;
(e) There was no consent for blood transfusion;
(f) There was no consent for anaesthesia.
The partly filled up consent forms narrated above prove beyond doubt that none of them can be classified as informed consent, This is a clear cut deficiency of service on the part of the respondents.
In view of the above, we are not persuaded to disturb the well-reasoned detailed order of the State Commission. Accordingly, the appeal is dismissed. There shall be no order as to costs.