J.S. Klar, Presiding Member:

1. The complainants, being legal representatives of Smt. Santosh Kumari since deceased, have instituted this complaint under Section 17(1)(a) of the Consumer Protection Act, 1986 (in short the Act) against opposite parties (OPs) on the premise that Santosh Kumari since deceased visited OP Nos. 1 and 2 with them in the month of April 2017 for seeking advice with regard to her bariatric surgery. The OP Nos. 1 and 2 apprised her that the package for bariatric surgery would cost Rs. 2,65,000 including all expenses with its duration for period of one week. The requisite tests were got conducted for investigation on her on 29.4.2017 by OP Nos. 1 and 2. On 2.5.2017, above Santosh Kumari was referred for endoscopy i.e. bariatric package examination by OPs and after scrutinizing all test reports of investigation, OPs declared her fit for the above surgery and asked her to come on 11.5.2017 for that purpose. She was admitted at OP No. 1 hospital with diagnosis of Morbid Obesity with sleep apnea syndrome with asthma with hypertension with CAD with hypothyroidism with umbilical hernia. The complainants enquired from OP No. 2 that their mother Santosh Kumari was having hernia disorder and hence it should be repaired firstly or simultaneously with the above surgery, but OPs stated that there was no immediate need for its surgery for repairing the hernia and it could be done after one year from her bariatric surgery. The OPs stated to complainants that the problem of hernia has nothing to do with her bariatric surgery and they agreed for her above surgery and the OPs conducted the Mini Gastric Byepass Surgery on 11.5.2017 on since deceased Santosh Kumari. After her above surgery, she was shifted in the room by OPs. On next day on 12.5.2017, she started vomiting, when nurses gave some water and tea to her and after one hour, she again did vomiting. OP No. 2, the treating surgeon, suspected something wrong in her and he found gastrojejunal (GJ) obstruction at Gastrojejunal Anastomotic Site, as there was no flow of contrast seen across the Gastrojejunostomy even in the delayed 2 hours filum. Endoscopy was done on 13.5.2017, which revealed a clot at GJ with post operative edema of her. On 3rd POD, when the vomiting were persisting, X-ray of her abdomen was done by OPs on 14.5.2017, which revealed gas filled loops of small gut with multiple air fluid levels. Thereafter, the patient was taken for diagnostic laparoscopy on the same day, which revealed gross dilatation of afferent and efferent loop obstruction of the small bowel at umbilical hernia site along with disrupture of GJ anastomosis. Then OPs conducted another operation called exploratory laparotomy on her on 14.5.2017. Due to suture dehiscence at GJ, procedure i.e. Mini Gastric Bypass was converted to Roux En-Y of the patient. Thereafter, Bagotas bag was applied by OPs on the stomach of the above patient, as it was not possible to close the abdominal wall with stitches at that time, because of gross dilatation/odema of bowel and laparotomy wounds was left open. OP No. 2, the treating surgeon, when examined her in the evening, found her condition very serious and stated to complainants that only a miracle could save her life. Thereafter, OPs installed some machine on her belly for discharge of fluids/water oozing out from her operative wound. After 2-3 days of shifting in the room, there was leaking of infected water/fluids, which kept on leaking out from the operative wound and the patient could eat the meals. The OPs forced the complainants for her discharge on 19.6.2017 by stating that she was stable and fit for discharge. The OPs also stated to complainants that her open wound would automatically heal and there was nothing to worry about the same, when the dilation would decrease, then the open stomach could be closed with stitches by them. After two days from her discharge, blood started flowing from her operated wound. The complainants intimated OP No. 2, the treating surgeon, about her serious condition and he asked them to press the wound with some cloth like bandage to stop it. It was done for some days and thereafter on 1.7.2017, there was excessive bleeding from her operative wound, which further spread all over her clothes and bed as well. She was taken to OP No. 1 hospital, where OP No. 2 checked and put some pressure on her belly/operative wound to stop the bleeding. Some medicines were prescribed for her by OP No. 2 and then OP No. 2 stated that, she was OK. Her condition was in fact worse, but OPs told the complainants there was no need to stay in the hospital for the patient. It is further averred by complainants that blood was oozing profusely from her operative wound on the next day in the morning and she felt difficulty in breathing. Considering her serious condition, they took her to OP No. 1 hospital again and she was admitted in emergency with complaint of difficulty in breathing and bleeding positive oozing from operative site, epigastric and hypogastric from last two days. The OPs did ECG on the same day on her, which was found abnormal. Some tests were conducted on her, which showed low level of Albumin (1.0), Creatinine (0.58), Calcium (6.5) and high level of Vitamin B12 Serum >2000, as per Annexure-12. The OPs advised Xray abdomen, which showed gas distended loops of small gut with air fluid levels seen. On 5.7.2017, the patient was very drowsy and there was poor response to verbal commands by her and she was also dehydrated absolutely, as such she was shifted to critical care and CECT abdomen was advised on her. On 5.7.2017, the CECT Abdomen was done, which showed mild ascites, bilateral pleural effusion, gross hepatomegaly with fatty liver. On 6.7.2017, her CBC test showed low level of HB and platelets were also kept on decreasing (159). The ammonia levels of the patient kept on increasing. Then EEG, 2d MRI Brain, LFT, NH3 level was advised, but only EEG was done on 7.7.2017, which showed abnormal EEG in view of theta range slowing sign of diffuse encephalopathy in patient. Two RDPC and 4FFPs were transfused, as the HB of the patient was decreasing and her urinalysis was also done, wherein blood was also detected in the urine of Santosh Kumari patient (since deceased). On 8.7.2017, OPs transfused two blood units on account of decreasing level of Hb. in the patient. C-reactive protein (CRP) test report of patient, showed acute infection i.e. (121.4). On 9.7.2017, the lab investigation showed urine culture positive and low level of Hb. and increase in Ammonia level (291), as per A-12. On 10.7.2017, the patient continued becoming restless, unresponsive with difficulty in breathing, abnormal eye movements and seizures etc. She was put on dialysis and the dialysis cannulation was done on the same day due to high level of ammonia. On 11.7.2017, she suffered encephalopathy with sepsis, hyper ammonia, seizures and urea cycle disorder with NH3 level increased to (.393) and the lab investigations showed chronic high level of white blood cells (40.3), high level of ammonia (393). Haematology dated 11.7.2017 showed microcytic hypochromic anaemia with leukocytosis, left shift and thrombocytopenia. On 12.7.2017, above patient expired due to sepsis, septic shock, multiorgan failure syndrome, DIC hyperammonemia encephalopathy, status epileptic, VT and VF, Urea cycle disorder. It is further averred in the complaint that due to said obstruction at the hernia of the patient, the gross dilatation of afferent and efferent loop occurred and due to said obstruction, the GJ anastomosis were disruptured leading to formation of clot at GJ with post operative edema. The patient also suffered klebsiella infection due to the reasons mentioned above. The complainants alleged medical negligence and deficiency in service on the part of OP Nos. 1 and 2 and prayed that OPs be directed to refund the amount of Rs. 3,54,500 paid by them; further to pay Rs. 30,00,000 as compensation for medical negligence; further to pay compensation of Rs. 10,00,000 on account of deficiency in service as well as unfair trade practice of them; further to pay Rs. 1,00,000 as litigation expenses and to pay Rs. 1,00,000 on account of loss of love and affection to the complainants on account of above death of their mother.

2. Upon notice, OP No. 1 appeared and filed its separate written reply contesting the complaint of the complainants. OP No. 1 admitted this fact that Santosh Kumari, since deceased was admitted in OP No. 1 hospital for bariatric surgery from 11.5.2017 to 19.6.2017. She again reported with complications and was readmitted from 2.7.2017 to 12.7.2017 at OP No. 1 hospital. She died at Fortis Hospital OP No. 1 on 12.7.2017. Any medical negligence on the past of OP No. 1 was vehemently denied in the written version of it. It is further averred that complainants are not consumers of OP No. 1 and complaint is not maintainable against it. No specific allegations have been made by complainants against it in this case. The complainants concealed the material facts by distorting the version with regard to patients medical condition in this case. Since, the patient expired on 12.7.2017, the treatment undertaken by her has been concealed during the period from 19.6.2017 to 1.7.2017 before her date of 2nd admission on 2.7.2017 to 12.7.2017. She was discharged on 19.6.2017 in satisfactory condition by OPs before her re-admission on 2.7.2017 in OP No. 1 hospital. The complainants have not cleared the major amounts of hospital bills and instead of paying the same, they filed the complaint against it. The complainants paid only Rs. 3,45,000 to OP No. 1 and balance amount of Rs. 7,13,629 is still pending. At the time of patients second admission, the complainant paid out Rs. 9,500 out of Rs. 4,69,603 for the treatment from 2.7.2017 to 12.7.2017. The detailed informed consent was duly taken by OP No. 1 for the above procedure from the patient. She was discharged on 19.6.2017 at the time of her first surgery and she did not come up for follow up treatment thereafter. OP No. 1 hospital is well equipped hospital with latest techniques. The treatment was given by OP No. 2 on standard medical protocol by adopting proper procedure with utmost care with qualified, experienced and competent medical staff of OP hospital to her. The patient did not die due to above surgery in question or its complications, but died due to different pathology, which was a congenital one, history of which was concealed by the attendants of the patient and they have not filed complete medical record of the patient for the reasons known to them. It is further averred that in the absence of any expert opinion, that the treatment was not proper, or that treating doctor was negligent, while treating the patient, the allegations of negligence qua treating doctor or the hospital, while treating the patient are not tenable. Dr. Ravinder Malhotra is a competent Laparoscopic Surgeon with qualification as M.S. (Surgery) and FIBC (Fellow International Bariatric Club) with surgical experience of over 16 years. He has also written a chapter in a book on surgery pushing boundaries in liver surgeries. Gastric bypass surgery refers to a surgical procedure in which the stomach is divided into a small upper pouch and a much larger lower remnant pouch and then the small intestine is rearranged to connect to both. Surgeons have developed several different ways to reconnect the intestine, thus leading to several different gastric bypass (GBP) procedures. The operation was prescribed to treat morbid obesity (defined as a body mass index greater than 40), type 2 diabetics, hypertension, sleep apnea, and other comorbidity conditions of the patient. Bariatric surgery is the term encompassing all the surgical treatments for morbid obesity, not just gastric bypass, which is only one class of such operations. She was admitted with OP No. 1 with above complications at the time of first surgery on 11.5.2017 and discharged on 19.6.2017 under consultation of OP No. 2, the treating surgeon. She was again admitted in the hospital OP No. 1 on 2.7.2017 and remained there at till her death 12.7.2017. She was admitted in OP No. 1 hospital with morbid obesity and sleep apnea syndrome and with other co-morbid conditions of hypertension, hypothyroidism with asthma also. She was unable to walk by herself. She was detected having umbilical hernia as an incidental finding. It was a silent hernia without any complications, repairing hernia prior to bariatric surgery is not recommended as it leads to hernia repair failure. ECHO of patient was done on 29.4.2017, which revealed EF55% and mild DD type. Dr. Rominder Kaur chest and TB specialist checked her breathing problem and on 9.5.2017 patient was declared fit for bariatric surgery. Even anaesthic Dr. Rajinder Kaur and Dr. Nidhi duly qualified in their field found her fit for surgery. The patient was explained about the procedure and the complications etc. on 29.4.2017. Negligence cannot be attributed to a doctor as long as he performs his duty with reasonable skill, as per medical standard practice and he is duly qualified in that field. OP No. 1 prayed for dismissal of the complaint.

3. OP No. 2 has filed his separate written reply and contested the complaint of complainants, almost on the same averments, on which it has been contested by OP No. 1. OP No. 2 pleaded that as per history of the patient Santosh Kumari, she was suffering from multiple medical conditions, i.e. morbid obesity with sleep apnea syndrome with asthma with hypertension with coronary artery disease with hypothyroidism with umbilical hernia. She came in OPD of OP No. 2 and she was reported to have been taking treatment from various doctors prior to her coming to OP No. 2, but no record of her treatment was shown to him. She was having hypothyroidism for the last five years, for which she was on regular treatment of thyronorm 100 mg and for hypertension she was taking amlong 5 mg daily. During seasonal change, she was using Rota caps for her asthma problem. She gave history of burning micturition, with further history of dry cough. She was overweight for the last 10-15 years and was not able to walk by herself and already diagnosed case of hypothyroidism, with hypertension, CAD, asthma, sleep apnea syndrome and was in post-menopausal stage. She came to OP No. 1 for bariatric surgery only and she was properly investigated prior to her admission by him and other doctors as well at OP No. 1 hospital. On 9.5.2017, Dr. Rominder Kaur, M.D. (Pulmonology) gave her fitness for her bariatric surgery i.e. Mini Gastric Bypass. The known complications of abdominal surgery are infection, venous thromboembolism, haemorrhage, hernia, bowel obstruction, anastomotic leakage, anastomotic stricture, anastomotic ulcer apart from dumping syndrome, nutritional deficiencies and its effects and all these complications were duly explained to patient and her relatives. She herself signed the consent form on 11.5.2017 and her attendants had also gone through the same. After above surgery, the patient was shifted into room on next day i.e. 12.5.2017. The patient was thus subjected to upper GI endoscopy on 13.5.2017, which revealed a clot at her gastrojejunostomy along with post-operative edema. The clot was removed and patency of gastro-jejunum was checked. On 14.5.2017, patient was kept empty stomach, but she had persistent vomiting and her X-ray of abdomen was done, which revealed multiple air fluid levels. A workable diagnosis of intestinal obstruction was made. Noticing no improvement, obstruction was relieved and mini gastric bypass was converted to Roux En Y Gastric bypass with laparotomy and Bagotas bag was applied along with VAC therapy on her on 14.5.2017. That was used to reduce swelling of the gut and to prevent compartment syndrome, otherwise gut necrosis would occur. Since, the laparotomy was uneventful, post-operatively, the patient was weaned off from ventilator and shifted to the room, when she was comfortable and stable. In the post laparotomy period, the patient was managed with VAC (vacuum assisted closure) dressings, I/V antibiotics, analgesic, LMWH (Low Molecular weight heparin) and I/V albumin was given for low level of her albumin along with nutrition support and DVT pumps. The patient was planned for grafting of laparotomy which had shown superficial klebsiella infection on culture. There was no evidence of sepsis anywhere in the body of the patient. Skin grafting of laparotomy wound was done on 8.6.2017 by plastic conditions in the OT of OP No. 1 hospital. Post operatively there was 100% coverage of laparotomy wound. Clips and sutures were removed on 17.6.2017 and patient was discharged on 19th June, 2017 in stable and satisfactory condition. The patient did not report after one week as advised for follow up. Two-three days prior to 1.7.2017, the attendants called on mobile of OP No. 2 and informed that there was some blood stains oozing at operative site, to which OP No. 2 advised them to bring the patient immediately to hospital, but the complainants brought the patient on 1.7.2017 only in OP No. 1 hospital with complaint of oozing blood from laparotomy site and nausea. The patient was re-admitted in OP No. 1 hospital on 2.7.2017 in emergency with complaints of difficulty in breathing and further complaint of bleeding within oozing from operative site. The patient was monitored in the critical care department and was stabilized. Immediate nebulization was done. Old treatment record was sought from patients family, but they did not provide the same. Her condition was stable and she was shifted to room on 4.7.2017. On 5.7.2017, the patient was feeling drowsy and had poor response to verbal commands with feeble pulse, thus, she was shifted to critical care department, where her CECT abdomen was advised and this report did not give any abnormal finding. On 6.7.2017, since the patients condition again recovered, she was shifted to the room. On 7.7.2017, the patient again became drowsy, endocrinology consultation was done. On 8.7.2017, chest consultation was done and treatment was given to her. On 9.7.2017, she was under regular monitoring of the critical care team, who were monitoring her vitals at regular intervals. On 10.7.2017, her condition worsened and second opinion taken and accordingly, MRI brain plain was done. In view of high ammonia level, a workable diagnosis of congenital in born urea cycle abnormality was made and investigated accordingly after excluding hepatic encephalopathy. On 11.7.2017, the patient was treated on the lines of seizures and fresh diagnosis of in born urea cycle abnormality. The condition of patient remained very critical throughout on 12.7.2017. The patient underwent multi-organ failure syndrome with VT and VF. CPR started. All life saving emergency drugs were given to her and three shocks were also given, but patient did not recover and was declared dead. The final diagnosis of patient became post-bariatric surgery hyperammonemic encephalopathy with Pulmonary embolism with Urea cycle disorder with multiple organ failure with cardio pulmonary arrest. OP No. 2 has averred that the treatment provided to her was strictly as per medical standard protocol only by a qualified surgeon. OP No. 2 denied any medical negligence on his part and prayed for dismissal of the complaint.

4. OP No. 3, National Insurance Company Limited has filed separate written reply by averring that OP No. 2 was insured with it through its professional indemnity policies for a sum insured of Rs. one crore subject to maximum limit of Rs. fifty lakh for anyone accident. The complaint is alleged to be false and frivolous. The complainants have not approached this Commission with clean hands. OP No. 3 denied any deficiency in service and medical negligence on the part of OP No. 2, as he is qualified and experienced surgeon in his field. The complaint is not maintainable for misjoinder of the parties. The complainants have claimed hyperbolic and unfair amount of compensation only to invoke the jurisdiction of this Commission without any basis. There is no privity of contract between complainants and answering OP. OP No. 3 prayed for dismissal of the complaint by denying other averments of the complainants.

5. The complainants tendered in evidence affidavit of Rajinder Kumar complainant No. 2 Ex.CW-1/A along with documents and CD Ex.C-1 to Ex.C-16 and closed the evidence. As against it, OP No. 1 tendered in evidence affidavit of Dinesh Vashist, Facility Director of OP No. 1 Ex.OP-1/A and affidavit of Dr. Vineet Sehgal Ex.OP-1/B along with documents Exs.OP-1/1 to OP-1/6 and closed the evidence. OP No. 2 tendered in evidence affidavit of Dr. Ravinder Singh Malhotra Ex.OP-2/A along with documents Ex.OP-2/1 to Ex.OP-2/6 and closed the evidence. OP No. 3 tendered in evidence affidavit of Puja Dhawan, Asstt. Manager Ex.R-3/A with copy of insurance policy Ex.R-3/1 and closed the evidence.

6. We have heard the learned Counsel for the parties and have also examined the record of the case. Prolix evidence has been led by the parties in this case in support of their respective versions. We have to find out from perusal of the above referred pleadings and evidence on the record, as to whether OP Nos. 1 and 2 were medically negligent in this case in the procedure of above bariatric surgery of the patient Santosh Kumari. On going through evidence on the record and hearing the respective submissions of Counsel for the parties at length, we find that there are some points which need to be addressed to in this case. OP Nos. 1 and 2 relied upon affidavit of Dr. Vineet Sehgal Ex.OP-1/B, Dr. Arindham Gosh Ex.OP-2/B and affidavit of Dr. Ravinder Singh Malhotra Ex.OP-2/A. These witnesses stated that the procedure carried out at OP No. 1 hospital by OP No. 2 was as per medical standard practice stricto sensu and OP No. 2 is duly qualified in his field of bariatric surgery. Much stress has been laid by Counsel for OPs on affidavit of Dr. Arindham Gosh Ex.OP-2/B to the effect that complainants have not examined any expert witness on the record to prove any medical negligence on the part of OPs. We find that this witness, as relied upon by OPs only tendered his affidavit on the record. He has not participated in the surgical team at the time of above surgery of patient in OP No. 1 hospital in this case. He based his affidavit on his opinion only. As per law, the evidence of the expert must by supported by the requisite data, otherwise it is of no consequence. He has not provided any such data in his testimony on the basis of which he has formed his opinion in this case. The Apex Court has held in Ramesh Chandra Agrawal v. Regency Hospital Limited & Others, IV (2009) CPJ 27 (SC), that an expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria. The Apex Court has further held in V. Kishan Rao v. Nikhil Super Speciality Hospital & Another, III (2010) CPJ 1 (SC)=V (2010) SLT 349=2010 (2) CPC 647 that in most of the cases, the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness in medical science. The expert witness only assists the Court in deciding whether the act or omissions of medical practitioner or the hospital constitutes negligence or not. It is a mixed question of facts and law as to whether the hospital or doctor is medically negligent or not. The Counsel for OP Nos. 1 and 2 contended that complainants had not produced the previous medical record of patient at the time of her second admission in OP No. 1 hospital on 2.7.2017. We have perused the evidence on the record and find that firstly deceased Santosh Kumari was admitted in OP No. 1 hospital and not in another hospital for bariatric surgery and concerned medical record of the patient was very much in the custody of OP No. 1 hospital and we repel this contention of Counsel for OPs regarding producing the medical record. Before first admission of patient in OP No. 1 hospital, OPs prescribed various tests, which were conducted at OP No. 1 hospital and after examining the reports and lab analysis of patient, OP No. 2 conducted bariatric surgery on 11.5.2017 on patient Santosh Kumari in OP No. 1 hospital. Why OPs have not insisted upon in not admitting the patient in the hospital unless her previous record has been shown by the complainants.

7. The patient Santosh Kumari was found suffering from umbilical hernia at the time of her admission in the hospital of OP No. 1. Her ultrasound of abdomen was performed on 29.4.2017 indicating signs of fatty liver and umbilical hernia, as per report, which is part of A-13. As per A-13 dated 29.4.2017, her blood urea nitrogen, creatinine, serum were normal. Her lipid profile tests were normal. Her bilirubin direct was slightly high as 0.23, SGOT was 41 slightly high and SGPT was 66 and GGT was 85. Bariatric surgery and hernia surgery were safe and could have been done simultaneously or hernia could have been repaired first instead of bariatric surgery by OP No. 2. The OPs could not show any medical literature to us that it is not safe to repair the umbilical hernia before bariatric surgery or simultaneously at the time of bariatric surgery. As per report dated 14.5.2017, which is at internal page 290 of A-11 (2nd part), another report CT Gastro Gafin study showing obstruction at anastomotic site, which was found at page 324 of A-11 (2nd part). Her abdomen X-ray showed the gas filled with air fluid levels dated 14.5.2017 (page 326 of A-11) (2nd part). She suffered from Klebsiella infection and the report in this regard is dated 7.6.2017 at page 328 of Annexure A-11. Her Albumin level started lowering down from 15.5.2017, vide reports dated 15.5.2017, 17.5.2017, 22.5.2017 and 29.5.2017 (Annexure A-11 pages 381, 389, 382 and 378). Thereafter, albumin level was not checked by OPs till her discharge i.e. 19.6.2017 and it was checked on 1.7.2017 vide A- 13 (page 18), which showed low albumin i.e. 1.4. The above obstruction was still there at the time of her second admission on 2.7.2017, which caused multiple complications like sepsis, septic shock and ultimately multi organ failure causing death of patient. The infection in urine was still in the patient on 7.7.2017 and blood was still detected in urine, as per report dated 7.7.2017, vide A-12 (page 247), which was similar to previous report dated 8.6.2017, vide A-11 2nd part (page 374). This infection which remained uncontrolled further passed on to her urine blood and blood passed over urine and blood also flew to urine, as per report dated 8th June, 2017, which is part of Annexure A-11 (2nd part) at page No. 374. The Counsel for the complainants further contended that as per report of MRI Brain dated 10.7.2017, which is part of Annexure A-12 (page 262), that in view of raised blood ammonia levels, possibility of acute hyperammonemic encephalopathy needed to be considered. But OP Nos. 1 and 2 failed to consider the same and Counsel for complainants relied upon medical literature at page 5, that patient was found to have elevated ammonia level as well as orotic aciduria; results consistent with a urea cycle disorder. After consulting neurology as well as toxicology, patient ultimately improved after dietary protein restriction, sodium benzoate and lactulose therapy, but in this case, OPs did nothing to cure the above disorder in the patient Santosh Kumari, since deceased and due to this, the patient suffered at last two episodes of seizures on 10.7.2017 itself followed by epileptics attacks, as per death summary dated 12.7.2017, which is part of Annexure A-12/Ex.C-12 at page No. 3 of it. The Counsel for the complainants further relied upon report dated 3.7.2017 after second admission, which is part of Annexure-13 at page No. 24 of it, which showed Vitamin B12 level more than 2000, which was alarmingly higher than the normal value i.e. 211-911, indicating that patient suffered from liver disease, which further led to kidney failure and B12 might rise due to kidney failure itself. It means that her liver was already damaged at the time of second admission itself. But before the first admission in OP No. 1 hospital, as per test report dated 29.4.2017 of Santosh Kumari, the Vitamin B12 level was 631, which was in normal range. It means that OP Nos. 1 and 2 during first admission for bariatric surgery from 11.5.2017 to 19.6.2017, failed to control the level of Vitamin B12 of patient Santosh Kumari, which led to damage of the liver of the patient. The Counsel for complainants relied upon Annexure-13 (page 24) and in support of it and referred to Medical Literature (page 14-A to 14-C) in this regard. The OPs have also not taken care to find the obstruction requiring immediate handling. This obstruction of umbilical hernia was much prior to conducting bariatric surgery, which continued at the time of her second admission on 2.7.2017 which further caused severe damage to the patients vital organs and thereby after one another, the main organs of the patient started dying, leading the patient to the condition of multi organ failure eventually leading to her death. Her X-ray of abdomen report dated 4.7.2017, which is part of Annexure A-12 (page 240), which is similarly to report dated 14.5.2017, which is part of Annexure A-11 (page 326), showed gas distended loops of small gut with air fluid levels seen. The patient remained admitted in OP No. 1 hospital from 11.5.2017 to 19.6.2017, but at the time of her discharge, then there was no question of gas or air fluid in the abdomen of the patient.

8. Her CECT abdomen was conducted vide report dated 5.7.2017, which is part of Annexure-12 (page 217), which showed B/L pleural effusion and gross hepatomegaly with fatty liver. Even on 9.7.2017, as per Urine Culture report dated 9.7.2017, which is part of Annexure-12 (page 224), the E Coli infection was still there on 9.7.2017. There remained urine infection in the patient on 7.7.2017 and blood was also found in her urine, which is indicative of medical negligence on the part of OP Nos. 1 and 2. The submissions of OPs were duly considered along with their evidence, but they remained unable to rebut the above evidence on the record leading to the inference of medical negligence of OP Nos. 1 and 2 in not removing the obstruction, which ultimately became the root point of all trouble causing the death of the patient due to multi organ failure. Had the obstruction been handled by OP No. 2 at OP No. 1 hospital of the patient appearing solely due to non-handling of hernia problem, then further complications would have been nipped in the bud without giving any further problems to the patient.

9. We find that on account of non-handling of umbilical hernia of patient prior to her bariatric surgery, the problem of obstruction caused disrupture of anastomotic site, causing leakage of blood in abdomen, causing severe damage to organs of Santosh Kumari patient since deceased. Due to non-repair of her umbilical hernia either at the time of the bariatric surgery or prior thereto by OP Nos. 1 and 2, this obstruction cropped up which ultimately gave rise to all the problems leading to death of the patient due to her multiple organ failure. The OPs were already aware of this fact that complainant was already suffering from so many health problems and they have not warned the attendants of complainants for not admitting her till she was found fit. The OPs went ahead in admitting her in hospital and in performing bariatric surgery and other procedure probably under the pulse of greed only. The obstructing point which appeared due to non-repair of umbilical hernia led to further problems in this case causing the death of the patient Santosh Kumari due to her multiple organ failure. Her liver was also damaged and due to this reason, the Vitamin B12 enzyme reached the alarming situation damaging her liver and then her kidneys as well. Had the obstructing point been treated by OP Nos. 1 and 2 simultaneously at the time of her above bariatric surgery, then in that eventuality, the above referred multiple organ failure of the patient could have been averted. We have also relied upon medical record of treatment of Santosh Kumari since deceased Ex.C-11, Ex.C-12 and Ex.C-13 (Annexures-11, 12 and 13 in parts) maintained by OP Nos. 1 and 2.

10. OP No. 2 relied upon affidavit of Dr. Ravinder Singh Malhotra Ex.OP-2/A in support of OPs version along with his certificate Ex.OP-2/1 to Ex.OP-2/4 that he is qualified and experienced surgeon in the above field. OP No. 2 also relied upon copy of ultrasound report dated 29.4.2017 Ex.OP-2/4 to the effect that hepatomegaly with fatty liver, post cholecystectomy status and umbilical hernia were in the patient. We have already discussed this point, as referred to above that why OP Nos. 1 and 2 did not take steps to cure these disorders firstly before performing bariatric surgery. OP No. 2 further relied upon Ex.OP-2/5, the copy of informed consent of Santosh Kumari since deceased for bariatric surgery, mini gastric bypass dated 11.5.2017. We have gone through the record of the case and find that thereafter OPs conducted another operation called exploratory laparotomy on 14.5.2017. Due to suture dehiscence at GJ, procedure i.e.Mini Gastric Bypass was converted to Roux En-Y and for that procedure, no consent was taken by OPs either from the patient or her relatives. OP No. 2 further relied upon affidavit of Dr. Arindham Gosh, MBBS, M.S. (M.Ch. G.I. Surgery) Ex.OP-2/B along with his bio-data and certificates Ex.OP-2/6. We have already discussed this point that Dr. Arindham Gosh was not part of team, who conducted bariatric surgery of Santosh Kumari and without any data, his evidence is of no avail to help OP Nos. 1 and 2. OP No. 1 relied upon affidavit of Dinesh Vashisht, Facility Director Ex.OP-1/A in support of its version by denying the averments of complainants. OP No. 1 also relied upon medical record of Santosh Kumari, since deceased Ex. OP-1/1 to Ex.OP-1/4. These records are already placed on record by the complainants vide Exs. C-11 to C-13 on the record. OP No. 1 also relied upon reminders of outstanding bills and reports Ex.OP-1/5 (colly). We have already discussed that OPs went ahead in admitting her in OP No. 1 hospital and in performing bariatric surgery and other procedure probably under the pulse of greed only without looking to her problem of umbilical hernia and hence they are not entitled to claim any balance amount from complainants for their medical negligence and lack of care by not taking steps to cure the obstruction caused by no attending to her umbilical hernia, as referred to above in detail.

11. As a result of our above discussion, we accept the complaint of the complainants by directing OP Nos. 1 and 2 to pay composite amount of compensation of Rs. Twenty lakh to complainants for their medical negligence and deficiency in service in causing the death of Santosh Kumari, mother of the complainants, which will include the amount of Rs. 3,54,500 paid by complainants to OPs, medical negligence, deficiency in service, compensation for mental harassment and litigation expenses and unfair trade practice. The above referred lump sum amount will cover all heads of compensation and it would serve the interest of justice in this case. OP No. 1 hospital shall be liable to make payment to the extent of 3/4 share out of above amount of Rs. 20,00,000 (Twenty lakh) to complainants, whereas the liability of OP No. 2, the treating surgeon, shall be to the extent of 1/4th share of the amount of the above composite amount of compensation. They are further at liberty to seek reimbursement from OP No. 3, the insurance company, if it is admissible under the contract of insurance between them and OP No. 3 only. The above amount of compensation shall be paid by OP Nos. 1 and 2 to complainants in equal shares, being legal representatives of Santosh Kumari deceased within 45 days, failing which, the awarded amount shall carry interest @ 7% per annum from the date of its order till actual payment.

12. Arguments in this complaint were heard on 26.11.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.

13. The complaint could not be decided within the statutory period due to heavy pendency of Court cases.

Complaint allowed.