National Consumer Disputes Redressal
K. Karthiga & Ors. vs Helios Hospital & Ors. on 11 October, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 279 OF 2011 1. K. KARTHIGA & ORS. Wd/o. Of Late Mr. I Karthikeyan,
Through Her Power Of Attorney Holder,
Mr. S. Monoharan,
S/o. Shri V.M. Sakthivel,
R/o. No. 4, F-3, Sri Ranga Flat,
Thiruvalluvar 2nd Street,
Adambakkam, CHENNAI - 600 088 TAMIL NADU 2. MASTER K. ATHITHYA S/o. Of Late mr. I. Karthikeyan, Minor Through His Mother Mrs. K. Karthiga., R/o. Plot No. 35, 1st Street, Raju Nagar, Thoraipakkam CHENNAI, TAMIL NADU - 600 097. 3. MASTER K. DHARSHAN S/o. Of Late mr. I. Karthikeyan, Minor Through His Mother Mrs. K. Karthiga., R/o. Plot No. 35, 1st Street, Raju Nagar, Thoraipakkam CHENNAI TAMIL NADU- 600 097. ...........Complainant(s) Versus 1. HELIOS HOSPITAL & ORS. Through Its Director / Superintendent,
No. 39, 7th Cross Street,
Rajalakshmi Nagar, Velachery, CHENNAI - 600 042 TAMIL NADU 2. DR. KRISHNA KUMAR No.39, 7th Cross Street, Rajalakshmi nagar, Velachery, CHENNAI - 600 042, TAMIL NADU. 3. MALAR HOSPITAL LTD. now Fortis Malar Hospitals Ltd. No. 52, First Main Road, Gandhi Nagar, Adyar, CHENNAI - 600 020. TAMIL NADU. 4. DR. NANDKUMAR SUNDARAM No. 52, First Main Raod, Gandhi Nagar, Adyar, CHENNAI - 600 020. TAMIL NADU ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. HIMANSHU GUPTA, ADVOCATE
MS. VIDYA PINTO, ADVOCATE FOR THE OPP. PARTY : FOR OPPOSITE PARTY-1 : MS. SHALINI KAUL, ADVOCATE
FOR OPPOSITE PARTIES-2 & 3 : MR. SANJEEV PURI, SENIOR ADVOCATE
ASSISTED BY MS. PRAGYAPURI, ADVOCATE
FOR OPPOSITE PARTY-4 : MR. JOYDEEP MAZUMDAR, ADVOCATE
Dated : 11 October 2023 ORDER
1. Heard Mr. Himanshu Gupta, Advocate, for the complainants, Mr. Sanjay Pinto, Advocate, for opposite party-1, Ms. Pragya Puri, Advocate, for opposite parties-2 & 3, Mr. K.K. Jain, Advocate, for opposite party-4.
2. Mrs. K. Karthiga, Master K. Athithya and Master K. Dharshan have filed above complaint for declaring that the opposite parties had committed negligence and deficiency in service in treatment of I. Karthikeyan, resulting in his death and directing them to (i) pay Rs.55100000/- with interest @18% per annum, from 05.08.2009 till the date of payment, as compensation; and (ii) any other relief, which is deemed fit and proper in the facts and circumstances of the case.
3. The complainants stated that I. Karthikeyan, aged about 36 years (the patient) had suffered from fever, swollen and painful left leg and loss of appetite on 28.07.2009, afternoon and consulted Dr. Muthusaamy, his family doctor at 19:30 hours, who prescribed for blood test. On 30.07.2009, the patient showed his blood test report to Dr. Muthusaamy, who did not notice any abnormality and advised to consult Dr. Ayyasamy, in Lifeline Hospital, Chennai, an Orthopaedic doctor. On advice of some friend, the patient went to Helios Hospital, which was an orthopaedic specialty hospital, where Dr. Krishna Kumar (opposite party-2) examined him on 31.07.2009, who took an X-ray report of his left leg, from which he did not find any abnormality. He therefore advised for MRI Scan. The patient went for MRI on 01.08.2009 in evening and completed the final 3rd step of MRI Scan. In view of severe pain in his left leg of the patient, Dr. Krishna Kumar (opposite party-2) recommended for admission in Fortis Malar Hospital under the care of Dr. Nandkumar Sundaram (opposite party-4). The patient went to Fortis Malar Hospital on 02.08.2009 in evening, where he was examined by Dr. Nandkumar Sundaram, who admitted the patient in the hospital at 20:20 hours and advised for blood test. Opposite party-4 again examined the patient on 03.08.2009 at 10:00 hours and noted "warmth and tenderness in the left leg". Opposite party-4 advised for 'bone scan' on 03.08.2009 at 13:50 hours. On 04.08.2009, opposite party-4 advised for 'advance nuclear scan' for bone scan. The patient went to Advanced Nuclear Medicine Research Institute, at Purasawalkam, Chennai for 'advance nuclear scan'. After 'advance nuclear scan', he returned to Fortis Malar Hospital 19:20 hours with severe pain in the lower left leg and breathlessness. The patient was then examined by the team of doctors at 20:45 hours, who conducted various tests. Dr. K.P. Suresh Kumar (a cardiologist) examined the patient at 22:00 hours, who diagnosed 'Deep Vein Thrombosis' (DVT)- Pulmonary Embolism. Due to critical condition, the patient was shifted to ICU and the medicines of DVT were started. According to "Mortality Summary" as issued by opposite party-3, the patient got cardio respiratory arrest at 2:10 hours on 05.08.2009 and died at 5:35 hours. Dr. Krishna Kumar (opposite party-2) examined the patient on 31.07.2009, who had swollen and painful left leg, which was a clear sign of DVT. Under standard medical protocol, he should have started medicines of DVT, until proven otherwise. Although Dr. Krishna Kumar (opposite party-2) and Dr. Nandkumar Sundaram (opposite party-4) are claiming themselves as super specialist orthopaedic but they have committed gross negligence in diagnosing DVT at the earliest and providing medicines for it. It is only on 04.08.2009 at 22:00 hours Dr. K.P. Suresh Kumar diagnosed DVT-Pulmonary Embolism. By that time, condition of the patient had become critical. Even after diagnose of DVT-Pulmonary Embolism, inadequate dose of medicines had been given to the patient. The weight of the patient was 90 kg. His initial dose of Heprine should be 7200U and maintenance dose should be 1620U per hour but he was given initial dose of 5000U and maintenance dose 1000U per hour. Although the patient died due to DVT-Pulmonary Embolism, but in "Mortality Summary" cause of death has been noted as "cardio respiratory arrest" to conceal the negligence of the doctors. At the time of the death, the patient was working as Vice-President in Lykot Hitech Toolroom Ltd. (a company) and drawing salary of Rs.31500/- per month. The patient had stake of 1% shareholding in the said company and had income of Rs.70000/- per years from it. The patient was partner with 50% share in the firm M/s. Flowtech Engineers and in the financial year 2009-2010, Rs.596422/- was profit and Rs.144000/- was remuneration in his share. Total annual income of the patient at the time of his death was about Rs.1100000/-. Age of the patient was 36 years at the time of the death. Both the company and firm were running in profit and the income of the patient is likely to be increased 15% annually. By the time of his retiring age of 60 years, his annual income would be Rs.3300000/-. The patient had four members in his family as such 25% of the income is liable to be deducted towards personal expenses of the patient. For the age of the patient, multiplier of 24 is applicable. Thus total loss of income was Rs.4/- crores. Due to untimely death of I. Karthikeyan, his family members have suffered loss of consortium and mental pain and agony. The family incurred Rs.50000/- in treatment/test reports of the patient during this period and Rs.50000/- as funeral and last rites expenses. Due to negligent and irresponsible treatment as provided by the opposite parties, the complainants suffered loss of Rs.5.51/- crores. The complaint was filed on 29.11.2011, along with IA/1/2011, for condonation of delay. Delay was condoned by order dated 24.04.2012.
4. Dr. Manjula Devi filed counter affidavit on behalf of opposite party-1 and stated that Helios Hospital was a small hospital and employed several doctors, para-medicals and other staff. The hospital had consultation suites and used to give these suites to consultant physicians on licence. Dr. Krishna Kumar (OP-2) was a licensee of the consultation suites of the hospital and not in its employment. The patient I. Karthikeyan consulted Dr. Krishna Kumar (OP-2) on 31.07.2009 afternoon. OP-2 found a lesion in the fibular head. He prescribed medicines to manage immediate pain. OP-2 called for an X-ray, Serology, Bio-chemistry, Haematological investigations. OP-2 also advised for MRI Scan of the left knee of the patient to rule out sub-acute osteomyelitis of the head of the fibula, bursitis around fibular head and lateral compartment syndrome. The report suggested infectious etiology or neoplasm of chondroid origin. Later on, OP-2 referred the patient to larger multi-specialty hospital and the patient was admitted in Malar Hospital Limited (OP-3) on 02.08.2009. There was no privity of contract between the hospital and the patient. The complaint is liable to be dismissed against it.
5. Dr. Krishna Kumar (OP-2), Malar Hospital Limited (OP-3) and Dr. Nandkumar Sundaram (OP-4) filed their joint written reply and stated that earlier the patient I. Karthikeyan had consulted Dr. J. Muthusaamy on 28.07.2009 for fever, which was initially investigated and treated. Dr. J. Muthusaamy advised investigations like TC, DC, ESR, Hb, Platelet count, smear for malarial parasite, QBC, Urine for culture, X-ray chest PA view, sinuses, WIDAL. On 30.07.2009, the patient complained left knee pain then Dr. J. Muthusaamy advised an orthopaedic referral and prescribed non-steroidal anti-inflammatory drugs. Dr. J. Muthusaamy did not apprehend for Deep Vein Thrombosis (DVT), at this stage. Then the patient came to Dr. Krishna Kumar (OP-2) on 31.07.2009 afternoon, complaining pain in left knee, for last one week. He presented a history of resting pain. On examination OP-2 found that the patient had an ill defined swelling over the outer aspect of knee joint (fibular head) with no effusion in the knee joint being noted. On palpation, tenderness around fibular head was noted. Specifically the patient had a local pathology involving the left fibular head. At this juncture, OP-2 diagnosed "Bursitis around the fibular head" or alternatively "strain of the lateral collateral ligament of the left knee joint". OP-2 advised for a Roentgenogram of the left knee with leg and an Erythrocyte Sedimentation Rate and C-reactive protein only as the patient had with him the other test reports obtained on advice of Dr. J. Muthusaamy. OP-2 prescribed inflammatory medication, antiemetic and protein pump inhibitor. The patient again visited to OP-2 on 01.08.2009 with Erythrocyte Sedimentation Rate and C Reactive Protein reports. These reports indicated that Erythrocyte Sedimentation Rate and C Reactive Protein were above the normal limit, which was indicative of infection in the fibular head. Therefore, OP-2 advised the patient for MRI Scan. The patient met OP-2 on 02.08.2009 with MRI Scan images, which were interpreted by Dr. S. Babu Peter, MD, DNB, RD, Consultant Radiologist. His impression was based upon visualization of multifocal epiphysis and metaphysis of the fibula, which was suggestive of (i) Infectious aetiology; (ii) Neoplasm (tumour) chondroid origin. On the basis of MRI reports, OP-2 set out the diagnosis for the patient as either acute endogenous osteomyelitis (spread of infection to the bone via the blood) of left fibular head or a neoplasm. The patient was prescribed medicines so as to reduce pain. OP-2 advised the patient to admit in Malar Hospital Limited (OP-3) so that he could be treated with parenteral antibiotics in order to prevent septicaemia and also to rule out Neoplasm. The patient was admitted to OP-3 hospital on 02.08.2009 and was given broad spectrum parental antibiotics, (Inj. Oframax forte 1.5 gm, IV bd after test dose) analgesic and protein pump inhibitors, after taking blood sample for blood culture. OP-4 reviewed the MRI reports on 03.08.2009 and advised for Radio-nucleotide Bone Scan to arrive at a conclusive diagnosis and plan further course of treatment. The treatment plan was to do a decompression of the intramedullary cavity of the fibular head to drain the pus if Radio-nucleotide Bone Scan was suggestive of infectious aetiology or to perform a bone biopsy if it was suggestive of malignancy. Due to treatment, the pain had subsided and the patient's condition improved and was stable on 04.08.2009. On 04.08.2009, the patient insisted, going in his own vehicle instead of ambulance of the hospital for Radio-nucleotide Bone Scan to Advanced Nuclear Medicine Research Institute, at Purasawalkam, Chennai. As the condition of the patient was stable, he was permitted to go on his own vehicle. The patient left the hospital at 8:00 hours on 04.08.2009 for Radio-nucleotide Bone Scan and came back on 19:20 hours although bone scan was completed at 14:00 hours. At this time, the patient was found critically in ill state (dyspnoea, low oxygen saturation). Dr. G.T. Prasad, who was on duty as medical officer in the hospital examined the patient and immediately shifted him in Critical Care Unit and requested for an opinion of Dr. Thanigaivendhan, who advised a set of investigations like ECG, ABG, CXR PA view, Renal pachage-1, cardiac enzymes and also started the patient on oxygen and nebulisation with monitoring of BP, Pulse and urine output. The team of doctors of Critical Care Unit consisted of Dr. Thanigaivendhan, MD (Anaesthesia), Dr. K.P. Sureshkumar, MD, DM (Cardiology), Dr. R. Boaz, MS (General Surgery). Dr. K.P. Sureshkumar started with the working diagnosis of DVT-Pulmonary Embolism, in view of swelling in the knee and below with acute onset breathlessness and elevated D-Dimer levels in blood before performing an ECHO. On ECHO of the patient, it was found that the patient had normal LV function, RA & RV not dilated, LVEF- 68% normal value, normal PA size. This was a very unusual finding in a patient with suspected fatal pulmonary embolism. EGC conducted showed sinus tachycardia without any fatal pulmonary embolism's changes. Dr. Arun Kumar, MD (Radio diagnosis) was called to perform ultrasound of the abdomen, where he reported hepatosplenomegaly (liver & spleen enlargement), while other organs were normal. Dr. R. Boaz, MS (General Surgery), on post investigation, found that the patient to have raised total WBC counts (18, 300/cmm), raised polymorphs (80%), elevated hepatic (total bilirubin 3mg/dl, direct bilirubin 1.5 mg/dl and elevated renal parameters (Se. creatinine 3.1 mg/dl) along with low urine output. The patient was suspected to be suffering from septicaemia rather than from DVT leading to pulmonary embolism. Following this, the antibiotic was changed to a higher drug (Piperacillin 4.5 gm IV tid). Despite all efforts by the team, the patient reached an irreversible stage due to multi organ failure and finally fatal death happened due to septicemic shock. On 05.08.2009 at 2:10 hours the patient suffered from cardio respiratory arrest. The patient was intubated for ventilator support and CPR initiated. In spite of resuscitative measure, he could not survive and declared dead at 5:15 hours. Radio-nucleotide Bone Scan evaluation of skeletal system was available posthumously by then Mortality Summary was issued with the working diagnosis so that the family of the decease may not wait for it. Provisional diagnosis was fully in consonance with Radio-nucleotide Bone Scan evaluation report, which read as "Features are compatible with possible infective arthritis involving the left knee along with non-specific polyarthritis". The symptoms presented by the patient never suggested DVT. The opinion of Dr. B. Ravikumar that the patient should have undergone Doppler ultrasound to rule out presence of DVT but the patients underwent MRI Scan, which is much better and more accurate scan than Doppler. The patient did not have any symptom of DVT. In DVT usually swelling of whole leg from foot to leg takes place while the patient had focal swelling around outer side of the knee. In MRI, Radio-nucleotide Bone Scan evaluation report and ECHO report, DVT was not established. The patient was treated following standard medical protocol and there was no negligence on the part of the opposite parties. The complaint is liable to be dismissed.
6. The complainants filed Rejoinder Replies, Affidavit of Evidence of S. Mahoharan and documentary evidence. The complainants filed Expert Opinion of Dr. B. Ravikumar. Opposite party-1 filed Affidavit of Evidence of Dr. Manjula Devi and documentary evidence. Opposite parties-2 to 4 filed Affidavits of Evidence of Dr. R. Krishnakumar, Dr. Nandkumar Sundaram and documentary evidence. Opposite parties-2 to 4 filed Expert Opinion of Dr. Kumud Mohan Rai, along with IA/1782/2016 and Expert Opinion of Dr. K.P. Suresh Kumar through IA/4120/2019. Opposite parties-2 to 4 served interrogatories to be answered by Dr. B. Ravikumar, which were answered by him on Affidavit filed through IA/3175/2017. All the parties have filed written synopsis.
7. Admittedly the patient I. Karthikeyan came to Dr. Krishna Kumar (OP-2) on 31.07.2009 afternoon, complaining pain in left knee, for last one week and remained in his treatment till 01.08.2009. Dr. Krishna Kumar (OP-2) referred the patient to Malar Hospital Limited (OP-3) on 02.08.2009, where he was admitted on 02.08.2009 in evening in treatment of Dr. Nandkumar Sundaram (OP-4) and died on 05.08.2009 at 5:15 hours. The complainants argued that the patient was suffering from Deep Vein Thrombosis (DVT) and had all the symptoms of it from very beginning but the OPs committed gross negligence in diagnosing it at the earliest and treat it. Dr. K.P. Sureshkumar diagnosed DVT on 04.08.2009 at 22:00 hours, in the hospital of OP-3 but even after diagnose of DVT-Pulmonary Embolism, inadequate dose of medicines had been given to the patient. The weight of the patient was 90 kg. His initial dose of Heprine should be 7200U and maintenance dose should be 1620U per hour but he was given initial dose of 5000U and maintenance dose 1000U per hour. Although the patient died due to "pulmonary embolism" as noted in "Mortality Summary" but the OPs are now suggesting that cause of death was septicaemia, against their own record. If the patient was suffering from septicaemia then they should have drained the pus but the pus was not drained, which also amounts to negligence.
8. We have considered the arguments of the counsel for the parties and examined the record. The OPs dispute that the patient suffered from DVT or died due to DVT-Pulmonary Embolism. Admittedly MRI of the patient was done at Aarthi Scans on 01.08.2009 and Radio-nucleotide Bone Scan was done at Advanced Nuclear Medicine Research Institute, at Purasawalkam, Chennai on 04.08.2009. Both the parties have filed MRI Report dated 01.08.2009, in which multifocal punctuate intramedullary STIR hyper intensities in the proximal epiphysis and Metaphysis of the fibula was found which was suggestive of either (i) Infectious Etiology (Endogenous Osteomyelitis) (spread of infection to the bone bia the blood) or (ii) Neoplasm (Tumour) Chondroid origin. The OPs have filed Radio-nucleotide Bone Scan report dated 04.08.2009 along with their Written Reply as Annexure-R-7. The report state that "early dynamic images demonstrates increased flow of activity in the region corresponding to the left knee joint in the vascular and the early blood pool phases. Subsequently dynamic images acquired in the delayed blood pool phase, tissue phase and in the late bone phase indicate increased uptake of activity in the left knee joint involving the lateral condyle of the femur and the proximal end of the fibula. Whole body sweep images confirm the same findings. In Addition, there is diffusely increased and almost symmetrical tracer concentration in both shoulders, elbows, wrists, sacroiliac joints, right knee and both ankles. The tracer concentration in rest of the skeletal system is within normal limits. In Impression, it was noted that "Features are compatible with possible infective arthritis involving the left knee along with nonspecific polyarthritis. Study is negative for metastatic bone disease."
9. The complainants heavily relied upon Mortality Summary in which cause of death is noted as "pulmonary embolism" and opinion of Dr. B. Ravikumar. Dr. B. Ravikumar, in his Affidavit sworn on 17.02.2017, answering interrogatories, stated that if there is low index of suspicion, a D-Dimer can be done for Deep Vein Thrombosis. For confirming Venous-duplex Ultrasound/Doppler Ultrasound has to be done. In respect of MRI report, he has stated that no specific request to look at the veins of lower extremities was made nor it was done. He ignored that pain and swelling was on knee joint of left leg of the patient and not below the knee. He avoided to answer the questions relating to test reports of ABG, ECG, ECHO, D-Dimer and MRI, specifically in ECHO report, the patient had normal Left Ventricle (LV) function, Right Artillery (RA) & Right Ventricle (RV) not dilated, LVEF- 68% normal value, normal PA size.
10. The OPs stated that Dr. K.P. Sureshkumar suspected DVT on 04.08.2009 at 22:00 hours, in the hospital of OP-3. However, on ECHO of the patient, it was found that the patient had normal LV function, RA & RV not dilated, LVEF- 68% normal value, normal PA size. EGC conducted showed sinus tachycardia without any fatal pulmonary embolism's changes. Dr. Arun Kumar, MD (Radio diagnosis) conducted ultrasound of the abdomen, where he reported hepatosplenomegaly (liver & spleen enlargement), while other organs were normal. Dr. R. Boaz, MS (General Surgery), on post investigation, found that the patient to have raised total WBC counts (18, 300/cmm), raised polymorphs (80%), elevated hepatic (total bilirubin 3mg/dl, direct bilirubin 1.5 mg/dl and elevated renal parameters (Se. creatinine 3.1 mg/dl) along with low urine output. On the basis of ECG, ECHO, Ultrasound and Blood Test Report, the patient was diagnosed to be suffering from septicaemia and not from DVT leading to pulmonary embolism and treatment was provided accordingly.
11. From various reports of the patient during 28.07.2009 to 04.08.2009, such as, blood culture, bone scan, bone X-ray, complete blood count, C-Reactive Protein, Erythrocyte Sedimentation Rate, MRI, ECG, ECHO, Ultrasound and Radio-nucleotide Bone Scan report, it is not proved that the patient had suffered from DVT-Pulmonary Embolism rather it was proved that he had infective arthritis on left knee joint, due to which septicaemia had developed. OP-2 prescribed inflammatory medication, antiemetic and protein pump inhibitor, which was continued. On 04.08.2009 antibiotic was changed to a higher drug (Piperacillin 4.5 gm IV tid). We do not find any negligence on the part of opposite parties-2 and 4 either in diagnosing and providing treatment to the patient.
12. Supreme Court in Jacob Mathew v. State of Punjab (2005) 6 SCC 1, held that negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage". Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. These principles were consistently applied in Kusum Sharma Vs. Batra Hospital & Medical Reserch Centre, (2010) 3 SCC 480, Arun Kumar Manglik Vs. Chirau Health & Medicare Private Ltd., (2019) 7 SCC 401, Maharaja Agrasen Hospital Vs. Master Rishabh Sharma (2020) 6 SCC 501 and Harish Kumar Khurana Vs. Joginder Singh, (2021) 10 SCC 291.
O R D E R
In view of the aforesaid discussion, the complaint is dismissed.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER