No relief: HC Refuses to quash Summon against Max Hospital, Cardiologist on Accusations of Implanting Cheap Pacemaker

Chandigarh: The Punjab and Haryana High Court recently refused to set aside a summoning order against Max Super Speciality Hospital, Mohali and its Cardiologist, who were booked for allegedly implanting a cheap pacemaker which ultimately resulted in the death of the patient.

While considering the appeal by the doctor and hospital, who prayed the Court to quash the summoning order, the HC bench comprising Justice Deepak Gupta opined that apart from medical negligence, the matter is more a case of cheating.

"...this Court finds that apart from the case of gross medical negligence, it is more a case of cheating having been committed under a conspiracy by the petitioners," observed the Court.

The bench noted that despite planning to install a biventricular triple chamber pacemaker, as per the consent given by the relatives of the patient, which was worth around Rs 4.5 lakh, the treating Cardiologist prima facie planted a cheap double chamber pacemaker costing only Rs 45,000. 

The matter goes back to 2013 when the complainant's husband after a routine check-up was advised to opt for pacemaker surgery. He approached Max Speciality Hospital, where the Cardiologist after certain diagnosis, prescribed surgery for implantation of pacemaker in the patient's heart. 

As per the complainant, the doctor advised a bivent pacemaker which cost around Rs 4.5 lakh and the estimate of the entire surgery was given as Rs 5.5 lakhs, including the cost of the pacemaker. Accordingly, the patient was admitted to the hospital.

Allegedly, the surgery was conducted after 3 days without having the actual, requisite and prescribed pacemaker available with the doctor. The treating doctor informed the complainant that the surgery could not be completed as they did not have the 3rd lead of the pacemaker. When questioned why he initiated the surgery without having the proper kit of the pacemaker, the doctor allegedly did not answer and left the patient in that condition without disclosing that he did not have the actual pacemaker.

It was alleged that the doctor implanted a wrong and cheap "Double Champer Pacemaker" against his instructions, even though the patient had paid for the superior pacemaker. Allegedly, it was done by the hospital and the doctor to make some extra money. The concerned "Double Chamber Pacemaker" allegedly cost Rs 45,000.

Further, the complainant alleged that to hide his deceitful act, the doctor claimed that he did not have the 3rd wire and would complete the surgery the next day. Meanwhile, the patient's condition started deteriorating. Two days after the first surgery, the doctor conducted another surgery in the garb of inserting 3rd wire and this time implanted the actual pacemaker, alleged the complainant.

As per the complaint, this second surgery was conducted by the doctor not to save the patient or to complete the treatment but to replace the cheap pacemaker with the actual one, so that even if the patient died, the doctor's act would not be revealed by the postmortem or any other way and he would be able to escape the liability.

Unable to take the burden of two back to back surgeries in just 2 days, the patient's condition deteriorated. Two days after his discharge, his pain became severe and unbearable and even though he was brought back to the hospital, he could not survive and died in the hospital. 

After the postmortem examination, the pacemaker was confiscated by the police, but neither any investigation was conducted nor any FIR was registered by the Police. Thereafter, the complainant approached the Jurisdictional Magistrate to summon and prosecute the accused.

Following this, the ld. CJM, Mohali perused the preliminary evidence and issued an order dated 8.12.2014 observing that there was a clear-cut case of medical negligence made out against the doctor and the hospital as there were sufficient grounds to believe that the hospital and doctor were guilty of medical negligence, conspiracy and cheating. Holding that they had committed offences under Section 304A, 120B, and 420 IPC, they were directed to be summoned to face trial.

Thereafter, the doctor and the hospital approached the HC bench seeking quashing of the summoning order dated 8.12.2014. They submitted that the patient had pre-existing severe heart problem i.e. severe Coronary Artery Disease and Triple Vessel Disease, for which he had already undergone bypass surgery at the age of 27 years at AIIMS.

It was further submitted that the patient and his relatives were given the option of AICD with triple chamber pacemaker. However, since the cost of the device was more, which the patient could not afford, so the second best option of biventricular pacemaker was given. Allegedly, the complainant and other relatives gave consent for the triple chamber pacemaker only on the evening of 19.09.2023.

They claimed that they decided to implant the biventricular pacemaker only after taking the consent from the complainant and the patient's brother and informing them about the advantages/disadvantages of the procedure.

The doctor and the hospital further submitted that the procedure of implantation of the biventricular pacemaker was done in two stages- two of the three leads of the biventricular pacemaker were implanted in the first stage and the 3rd lead and the pacemaker was implanted in the 2nd stage. This was allegedly done to give adequate rest to the patient, who already had severe heart problem.

It was specifically contended that they implanted only one pacemaker i.e. biventricular pacemaker (triple chamber pacemaker), though in two stages and that they never implanted two pacemakers on the patient as is alleged by the complainant. Referring to the snapshots of the recording of the operation theatre, the doctor and the hospital contended that they impanted only two leads on the first day and the third lead and pacemaker were implanted after two days.

While considering the case, the HC bench took note of the submissions and also examined the medical records. Referring to the X-ray reports conducted after the first surgery, the bench noted, "In case the pacemaker was engrafted in the body of the patient ... on 22.09.2013 as per the stand of the petitioners, it is not explained that how the X-ray conducted on 20.09.2013 is reflecting the ECPM with wires i.e. installation of the conventional pacemaker."

The bench observed that the petitioners' (Max Hospital) stand was contradicted even by the Hospital records. The In-Patient Record-Nursing Progress Notes after the first surgery mentioned, "Special instructions to handover staff: Patient CRT done……….."

Referring to this, the bench observed, "The above said record of the hospital would prima-facie indicate that pacemaker had been installed on 20.09.2013, as is being contended by respondent No.2-complainant. In case, pacemaker was not implanted on 20.09.2013 and rather, it was implanted on 22.09.2013 as is contended by the petitioners, how their own hospital record (Annexure P2/4) reflects that CRT was done on 20.09.2013."

The bench noted that the stand of the doctor and the hospital claiming that double chamber pacemaker was never installed and it is only the biventricular pacemaker, which was implanted in the patient's body, was contradicted by the bill issued by the Hospital also. 

"In view of all the aforesaid facts and circumstances, this Court finds that apart from the case of gross medical negligence, it is more a case of cheating having been committed under a conspiracy by the petitioners. Petitioner No.2 Dr. *** prima facie, despite planning to install as biventricular triple chamber pacemaker as per the consent given by the relatives of the patient, which costed roughly `4.5 lakh, instead planted a cheap double chamber pacemaker on 20.09.2013 costing only `45,000/- and when the patient developed problems or as the said pacemaker was not fitted properly, then implanted the triple chamber pacemaker on 22.09.2013," opined the bench.

"In order to conceal the said mischief, stand is taken that only triple chamber pacemaker was implanted, but in two stages and that in the first stage, only two leads were engrafted and in the second stage, third lead and pacemaker were implanted. The said stand is prima facie found to be incorrect in view of the various documents of the hospital itself," it further observed.

The High Court bench reiterated that the Court should not interfere with the summoning order or the order charge sheeting in a petition quashing the complaint unless there are strong reasons to hold that in the interest of justice and to avoid abuse of process of the Court, the complaint or charge framed against the accused should be quashed. Quashing should be done only in exceptional cases, opined the bench.

Therefore, dismissing the plea seeking to quash the summoning order, the bench ordered,

"...this Court finds that there is sufficient material to hold that petitioner should face the prosecution. No fault can be found with the impugned summoning order. The hospital record, as placed on record by the respondent-complainant prima facie demonstrate the sufficient material to proceed with the complaint against the petitioners, even in the absence of any opinion of the medical expert, as it has already been observed by this Court that more than a case of gross medical negligence, it is a case of cheating having been committed by the petitioners in conspiracy with each other."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/punjab-haryana-hc-234371.pdf

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