State Consumer Disputes Redressal Commission
J.P. Singh vs Dr. (Mrs.) Sukh Pal Sahney on 3 October, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 03-10-2006 Complaint Case No. C-362/94 Shri J.P. Singh Complainant 144-G, Hari Nagar Ashram Through New Delhi-110014. Mr. Rajesh Mahana, Advocate. Versus (1) Dr. (Mrs.) Sukh Pal Sahney Opposite Party No.1 Radiology Deptt., AIIMS, Through New Delhi. Mr. Sudhir Gupta, (2) Dr. M.C. Mishra, Opposite Party No.2 Head of Surgery Deptt, Unit IV, AIIMS, New Delhi. (3) Dr. S.K. Kakkar, Opposite Party No.3 Director, AIIMS, New Delhi. (4) Dr. P.K. Dave, Opposite Party No.4 Medical Superintendent, AIIMS, New Delhi. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal- Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) This complaint arises out of allegations of medical negligence on the part of OP- AIIMS including its Medical Superintendent and various doctors who attended to and treated the wife of complainant at one stage or the other that resulted in her death. Complainant has sought damages of Rs. 5,25,000/-.
2. Allegations of complainant, in brief, are that his wife deceased Smt. Prem Wati Devi who was 55 years of age was admitted in AIIMS on 15-09-1994 in Ward No. C-7 at bed No.6 for treatment of Surgically Obstructive Jaundice (SOJ). Except this disease she was otherwise stout, healthy, hale and hearty and was leading active life. She was under the treatment of the doctors of Ward C-7 of AIIMS and Dr. M.C. Mishra was the head of the Department.
3. On 22-09-1994 the doctors of C-7 Ward advised that bile will have to be drained out of the gall bladder in order to cure the jaundice for which they advised PTBD test. On 24-9-1994 the said doctors referred the deceased to Radiology Deptt. of AIIMS where Dr. (Ms) Sukh Pal Sahney attempted PTBD test but discontinued the same for reasons not disclosed to the relations of the deceased. On 27-9-1994 Dr. (MS) Sukh Pal Sahney of the Radiology Deptt. of AIIMS again conducted PTBD test on the deceased by placing a tube in a hole created in right side of her stomach probably to drain out the bile but while doing so she was negligent and careless to the extent that she was attending to her relatives/visitors as well as incoming telephone calls during the test. After PTBD test was over at 4.00 P.M. and deceased was brought back to the Ward at 6.00 P.M. the deceased started complaining of severe stomach pain and after some time blood started coming out alongwith the bile. On the same day the deceased was shifted to bed No. 25 and subsequently to bed No. 23 in the same ward but even after repeated attempts and requests by the complainant and other relations of the deceased, she was left to lie in the same condition through out the night of27-9-94 and even upto 5.00 P.M. on 28-9-1994. In between this period the complainant was in great mental agony because of the negligence and due to non-attending of the patient by the doctors.
4. On 18-9-1994 by 5.00 P.M. the stomach of the deceased swelled out of proportion, urine stopped coming out, and the deceased suffered cardiac arrest because of this. The complainant being an experienced retired police officer was confident that patient appeared to be almost dead. The elder son of the deceased who was also present was made to sign all sorts of declarations/consent forms by the ward doctors, the contents of which he could not see on the pretext by the doctors of urgency and shortage of time.
The deceased was taken for emergency operation which the doctors stated to be for cleaning the blood accumulated inside the stomach but the complainant was confident that this again was just an eye wash to save their skin. At about 6.00 P.M. after the so called emergency operation the deceased was brought to ward at bed No. 23 in the state of coma/ unconsciousness.
5. On 29-09-1994, the complainant told the doctors that the deceased had remained cold and lifeless till 3.28 P.M. when Dr. Gulam Nabi of the ward, on being called upon to check, disconnected the respirator and declared the deceased physically dead. On being insistingly asked about the cause of death, Dr. Gulam Nabi expressed annoyance and went away without giving satisfactory reply.
However, another doctor confessed that the death had occurred due to puncturing in liver instead of gallbladder which consequently resulted in profuse bleeding inside the stomach, kidney failure, lack of clotting of the blood and cardiac arrest. Hence this complaint.
6. The first and foremost objection raised by the OP in its defence is that AIIMS being a Government funded Institute and the doctors being on monthly salary and the charges for the service rendered by AIIMS include only attendance of the patient and the treatment is given by large team of doctors the services being provided by the doctors/AIIMS is free of charge and without any consideration either received by the AIIMS or by the doctors concerned, the provisions of Consumer Protection Act,1986 are not applicable qua the AIIMS and its doctors. On the factual matrix the OP has come out with the following version:
7. That the doctors who have treated Smt. Premvati Devi possessed the skill of international standard and any complication during the treatment cannot always be predicted and prevented. The treatment and management of the patient by the respondent was of high degree and cannot be said by any stretch of imagination that there was negligence committed by the respondents.
8. After being admitted in the hospital, she was examined immediately by a team of doctors. Entire history of her disease was taken and she was put to medical investigations. After investigation, her management plan was finalized by the surgical team in consultion with Dr. H.C.Mishra, Professor and Head of Surgical disciplines on 17.09.1994. The deceased was diagnosed to be suffering from malignant surgical obstructive Jaundice.
9. That since the deceased was suffering from Malignant surgical obstructive Jaundice, her general condition was very poor and there was very high risk for any surgical intervention. Keeping this in mind, the team of doctors decided to perform PTBD(Percateneous Transheptic Billary Drainage) which is a therapeutic procedure. That by performing PTBDthe level of jaundice comes down and the general condition of the patient improves to facilitate future major surgery with reduced risk. PTBD was successful since clear bile was seen in the tube.
10. That the patient had previously damaged liver functions and was a known asthematic and therefore following the procedure she developed bleeding from liver. All efforts were made to stop bleeding by conservative meansures which failed and an emergency laparotermy had to be undertaken in view of the aforementioned problem.
11. That such a major procedure is associated with high morbidity and mortality by virtue of greater magnitude of surgical trauma. It is precisely for this reason that major procedure was avoided in the first instance. The complainant was informed about the PTBD procedure before taking the patient through said procedure. It is wrong to allege that the doctors did not take proper care of the deceased and committed negligence.
12. Let us first deal with the objection that services rendered by AIIMS that are free of charge and only incidental charges are charged do not come within the services contemplated by the Consumer Protection Act, 1986. May be in the past free services were being given to the patients but of late AIIMS have started charging fees from the patients for consumables, service charges and charges for ward etc. as was charged from the deceased of this case.
13. In order to bring AIIMS within the net of Consumer Protection Act, 1986 the essential requirement is that it should come within the ambit of service as defined under Section 2 (1) (o) of the Act and definition of Consumer as defined by section 2(1)(d) of the Act. Section 2(1)(o) defines the service as under:-
(o) service means service of any description which is made available to potential users and includes, but not limited to, the provisions of facilities in connection with banking, financing insurance, transport, processing supply of electrical or other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
14. Section 2(1)(d) defines the consumer as under:-
(i) Any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration and paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for release or for any commercial purpose; or
(ii)Any person who [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]
15. A question arose before the Supreme Court for consideration in Indian Medical Association Vs. V.P. Shantha & Ors III (1995) CPJ 1 (SC) whether the services rendered at a Government hospital, health centre, dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of expression service as defined under section 2 (1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service.
Supreme Court laid down the following criteria for determining as to the applicability of provisions of Consumer Protection Act, 1986 vis--vis Government hospitals, health centres, dispensaries as well as private nursing homes.
(1)Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medical and surgical, would all within the ambit of service as defined in Section 2(1) (o) of the Act.
(Emphasis supplied) (2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
(3)A contract of personal service has to be distinguished from a contract from personal services. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a contract of personal service.
Such service is service rendered under a contract of personal services and is not covered by exclusionary clause of the definition of service contained in Section 2 (1) (o) of the Act.
(4)The expression contract of personal service in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of service as defined in Section 2(1)(o) of the Act.
(5)Service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be service as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(6)Service rendered at a non-Government hospital/nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service is outside the purview of the expression service as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(7)Service rendered at a non-Government hospital/nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression service as defined in Section 2(1)(o) of the Act.
(8)Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression service as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be service and the recipient a consumer under the Act.
(9)Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service is outside the purview of the expression service as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(Emphasis supplied) (10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression service as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be service and the recipient a consumer under the Act.
(Emphasis supplied) (11) Service rendered by a medical practitioner or hospital/nursing cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of service as defined in Section 2(1)(o) of the Act.
(12)Similarly, where as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute service under Section 2(1)(o) of the Act.
17. Since in the instant case AIIMS has received consideration from the complainant may be towards consumables, service charges, charges for ward etc. but these charges were for the purpose of providing medical treatment to the ailing person. It is immaterial whether AIIMS has not charged fees of the Doctors who operated upon the deceased but the fact remains that the deceased was treated by the OP/AIIMS against consideration.
18. Once consideration except token charges as registration or administrative fee is received by a Govt. Hospital, health Centre or dispensary from any section of the society, rich or poor such a consideration is towards the service known as medical service and therefore brings the hospital within the embrace of Consumer Protection Act, 1986. To distinguish such charges from the charges of the Doctors or team of Doctors treating or operating the patient is not permissible.
Such a distinction may be available in respect of private nursing homes, medical Centres etc. It is the service as a whole which forms component of service envisaged by Section 2 (1) (o) of the Consumer Protection Act and not service in parts i.e. service for consumables, service charges, charges for wards or administrative expenses.
19. We now advert to the main question, that is, whether the OP AIIMS is guilty of medical negligence in treating the disease or not?
20. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
21. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
22. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.(4)
The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
23. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
24. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
25. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries?
Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death.
Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
26. As is apparent from the rival claims and on medical record produced by the OP, doctors of Ward No.7 advised that bile will have to be drained out of the gall bladder in order to cure the jaundice and for this they advised PTBD test. On 24.9.94, the ward doctors referred the deceased to Radiology Deptt. of AIIMS where Doctor Sukh Pal Sahney conducted PTBD test but the bile could not be extracted on the said date. Dr. Sahney conducted PTBD test by placing a tube in a hole created in right side of her stomach to drain out the bile. On 27.9.94 at 4.00p.m. when the deceased was brought back to the ward, she started having severe stomach pain and nausea. On 28.9.94, the stomach of the victim swelled out of proportion, urine stopped and victim suffered cardiac arrest.
27. It is clear that she started internal bleeding because of non-performance of PTBD test in a rightful manner, otherwise question of bleeding from lever did not arise. Bleeding was the result of puncture of the liver.
28. Doctors concerned failed to take corrective measures by washing the stomach and stopping the internal bleeding which was not done. Unchecked or untreated blood loss results in failure of the heart and vasomotor center to maintain a sufficient perfusion of oxygen for their purpose and death follows. Literature further provides that besides this observation of the patient is essential and the severity of blood loss and shock can be gauged by feeling the temperature of the nose. A cold nose usually means that shock is severe. While prescribing treatment of hemorrhage, the said literature provides as under:
Stop the blood loss by pressure and packing. Position and Rest. Operation. Ligation, Repair, Excision. Restore blood volume by blood transfusion.
29. Ground situations in Govt. hospitals is that there is a large number of patients admitted and one or other team of doctors is entrusted to attend a patient and whenever any emergency calls from some other patient comes the said doctor is assigned to attend to that patient and in the process the time is lost and the patient who needs immediate care particularly the treatment of stopping the blood becomes victim to the blood loss resulting in his death. Same phenomenon appears to be the cause of negligence. While performing the PTBD Test for the purpose of extracting the bile door membraine of the liver was punctured as a result the internal bleeding started and stomach bulged disproportionately. May be that the PTBD Test was not performed in the right manner which resulted in the bleeding. The team of doctors or the doctor present there failed to take corrective measure for stopping bleeding. Unchecked or untreated blood loss always results in failure of the heart or lack of proper profusion of oxygen.
30. Secondly when the risk factor was 65% as observed by the OP in the medical history and the comments given date wise by the complainant the life of the patient could have been saved. In support of the percentage of risk factor, medical literature prescribes that beyond 97% risk the patient should not be operated upon.
31. It has not been proved as to which of the doctors was negligent in treating the patient as the operation was being attended to by a team of doctors.
32. We have already observed that in case of government or medical centres or the government hospitals they alone are liable for deficiency in service or negligence on the part of its doctors.
It is the internal arrangement between the Government hospital or the medical centres as to what kind of action the negligent doctor can be subjected to.
33. In our view the nature of deficiency or negligence is limited to the extent of not arranging the stoppage of bleeding with minimum effect may be because of any reason whatsoever as the Doctors were well qualified and competent and treatment provided by them was the proper calls for lumpsum compensation of Rs. 1 lac.
34. Complaint is allowed and disposed of in aforesaid terms.
The above payment shall be made within one month.
35. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
36. Announced on the 3rd October, 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj