State Consumer Disputes Redressal Commission
Handa Nursing Home vs Ram Kali (Since Deceased) on 6 August, 2012
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 6.8.2012 Case No. FA-1002/08 (Arising from the order dated 29.9.2011 passed in Complaint Case No. 306/06 by the District Consumer Forum-III, 150-151, Community centre, C-Block, (Behind Janak Cinema), Janakpuri, New Delhi-58). 1. M/S HANDA NURSING HOME - APPELLANT Regn. No. 539/2005-2006 57, Raja Garden, New Delhi. Through Dr. A.K. Handa (Consultant Surgeon & Urologist) 2. DR. A.K. HANDA (Consultant Surgeon & Urologist) Son of Shri C.L. Handa, 57, Raja Garden, New Delhi. Versus MRS. RAM KALI (SINCE DECEASED) - RESPONDENT THROUGH LRS 1. SURESH CHAND (HUSBAND) S/o Sh. Manohar Lal 2. Sh. Jitender Kumar Garg (Son) 3. Smt. Sushma rani Mittal (Daughter) W/o Sh. Anil Kumar Mittal All Residents of B-13, Shiv Ram Park, Najafgarh Road, Nangloi Delhi - 110041 CORAM : SALMA NOOR - Presiding Member V.K. GUPTA - Member (Judicial) 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? V.K. GUPTA (ORAL) ORDER
1. This appeal by the OP of the case No. 306/06 is directed against order dated 29.9.2008 of the District Consumer Forum- III, 150-151, Community Centre, C-Block, (Behind Janak Cinema), Janakpuri, New Delhi-58, allowing the complaint and awarding compensation of Rs. 7 lakh.
2. Brief facts are that on 13.3.2006, the complainant/respondent felt some pain in the right side of her abdomen and was taken to Dr. Madan Jain who referred her to Dr. Saroj Singla for ultrasound. The ultrasound report was shown to Dr. Madan Jain and Dr. Jain referred the case to Handa Nursing Home, OP/Appellant. On seeing the ultrasound report, Dr. A.K. Handa diagnosed it as right ureterie stone and therefore, advised operation through Laser Technology. Consequently on 14.3.2006, she was operated upon and was discharged on 15.3.2006 from the Nursing Home, yet, the patient was suffering from pain but Dr. Handa informed the family members of the complainant/respondent that the operation had been successful, and the stone had been broken and DJ Stent had been inserted which was to be removed after one week and the patient could be taken to home.
The complainant/respondent paid Rs. 14,000/- to Handa Nursing Home. After one week i.e. 24.3.2006, the Stent was removed yet the complainant/respondent kept complaining pain and temperature. She was readmitted to Nursing Home i.e. OP/Appellant on 2.4.2006. On the advice of Dr. Handa, once again the stent was inserted in the right side of the abdomen and complainant/respondent was discharged on 3.4.2006. The stent was removed after 10 days and on 19.4.2006, medicines were changed but despite this, the condition of the complainant/respondent did not improve and the pain & temperature continued. On 22.4.2006, IVP was conducted by Dr. Handa. The complainant/respondent was once again admitted to the Nursing Home. The condition of the complainant/respondent became worsened but nothing was done and it was admitted by Dr. Handa that there was some negligence on the part of the Nursing Home. When it was very strongly objected by the members of the family, Dr. A.K. Handa fled away from the Nursing Home. Faced with the situation, the complainant/respondent was taken to AIIMS where the Doctors orally called negligence of the Nursing Home as the operation of Dr. Handa was not conducted properly and there was lot of negligence and proper care was not taken by the Nursing Home. The condition of the complainant further deteriorated and was admitted to AIIMS on 27.4.2006 where she remained till 14.5.2006 during which period she was put to dialysis and hemo dialysis couple of times. Since there was strike of doctors in Delhi, complainant/respondent was discharged from AIIMS through here condition was still critical as both her kidneys were not functioning and laboratory reports were not showing any signs of normalcy.
The complainant/respondent was completely bedridden and unable to support herself on her own. There was sheer negligence on the part of the doctor of the Handa Nursing Home and the complainant claimed Rs. 10 Lacs as compensation along with interest.
3. The OP/Appellant filed the reply and denied the allegations. The treatment given is nowhere stated to be wrong by the doctors of the AIIMS, therefore, there was no negligence in administrating the treatment to the complainant/respondent by the doctors. It is admitted that the complainant visited the OP/Appellant Nursing Home along with the report of the ultra sound of Dr. Saroj Singla on 13.3.2006. It is further admitted that the complainant was seen on 13.3.2006 by Dr. A.K. Handa of Handa Nursing Home and it was diagnosed as right uretery stone. The doctor never advised operation through Laser Technology. However, the complainant/respondent was advised Ureteroscopy. No operation of the complainant/respondent was ever conducted but ureteroscope was inserted through a urinary passage and a DJ Stent was placed and the complainant was discharged on 15.3.2006. It was further admitted that the complainant/respondent visited the Nursing Home on 24.3.2006 and DJ Stent placed was removed as the complainant complained of pain and discomfort, which normally occurs in case where DJ Stent is placed. The complainant/respondent was readmitted in the Nursing Home on 2.4.2006 with the complaint of pain. Though no stone was seen yet the DJ Stent was again placed because sometimes even a very small particle of few millimeters, if remained, could cause discomfort and pain. The complainant was discharged on 3.4.2006. Thereafter, the Stent was removed on 19.4.2006. As the pain persisted, the IVP was advised on 22.4.2006.
Thereafter it was observed that blood urea and serum creatinine began to rise, the Nephrologist was consulted and the treatment started as per his advice. The complainant/respondent left the Nursing Home on 25.4.2006. It is also denied that Dr. A.K. Handa left the Nursing Home and it was remained open.
The condition of the complainant/respondent did not deteriorate due to any fault in treatment conducted at Handa Nursing Home. Therefore, by no stretch of imagination, it can be said that there is any deficiency or negligence on the part of the doctors of the Appellant,
4. The District Forum found the deficiency and negligence on the part of the appellant and awarded a compensation as herein above mentioned.
5. We have heard Ld. Counsel for both the parties and perused the material on record.
6. It is very vehemently submitted by the Ld. Counsel for the Appellant that there is no deficiency or negligence on the part of the doctors of the appellant.
Therefore the District Forum has wrongly concluded it and awarded compensation. On the other hand, it is argued on behalf of the complainant/respondent that there is a sheer negligence, which has been pointed out by the Expert Medical evidence of AIIMS.
7. 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 (!957) 2 All ER 118, 121 D-F still holds 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. The test is the standard of the ordinary skilled man exercising ad professing to have that special sill. As 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)
8. 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. 9. 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 & Ors (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 V/s. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of the 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.
10. 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.
11. 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 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)).
12. 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?
13. In this case, the District Forum sought following queries for the expert opinion sent to the AIIMS for reply:
a. whether all the necessary investigations before operating Smt. Ramkali were conducted and treatment was given keeping in view the results of such investigations/conditions of the patient.
b. whether the treatment given to Smt. Ramkali at Handa Nursing Home on three occasions was strictly according to the medical norms or suffered from any deficiency.
c. What had been the cause of the complainant being uncomfortable during the treatment given at Handa Nursing Home.
d. what could be the most probable cause of kidney failure of Smt. Ramkali.
14. In reply to the above queries, Medical Board constituted by the Media Supdt., AIIMS, which consists of six members has replied as under:
(1) The patient Ram Kali had pain in the right flank on 13.3.2006.
Ultrasonography revealed normal left kidney and hydronephrosis of the right kidney. The renal functions as assessed by bood urea and creatinine were within normal limits. It may be mentioned here that the glomerular filtration rate or GFR (which is the actual measure of renal function) was about 50 ml/min by both the Cockcroft-Gault and the MDRD formula (normal 80-120 ml/min). This was calculated by us from the available records. Prior to the first intervention on 14.3.06, there was a lack of a function study (eg. Intravenous Pyelography IVP or Nuclear Scan). Further, the diagnosis of a stone was based only on an utrasonogram, which is an observation dependent imaging study. Hence, performance of a plain X-Ray/Non-contrast CT KUB, and a functional study would have been advisable prior to operative intervention. As per the hospital records, during ureteroscopy on 14.3.2008, a stone was seen in the right ureter, which was broken into small pieces and a double J Stent was put in place.
(2). The treatment given was as per standard practice. Details of our observations are given in paragraph I above.
(3) Before re-stenting was done for a second time on 2.4.2006, it would have been advisable to confirm the presence of persisting destruction by repeating ultrasonogaphy of the kidneys, ureter and bladder. This would have substantiated the need for re-stenting.
(4) A functional study IVP was done on 22.4.06 after documenting apparently normal renal functions as evidence by blood urea and cretinine within normal limits. 50 ml of the radio-contrast omnipaque was administered. This is as per standard procedure. However, calculated GFR was again approx. 50 ml/min. In this connection we would like t state that it is now known that serum creatinine is a poor surrogate mark of renal function. Renal functions are best assessed by GFR. However, the practice of estimating GFR prior to performing IVP is still not the standard practice in India or even internationally. IVP showed non-functioning right kidney and sub-optimally functioning left kidney. As already mentioned the calculated GFR on two occasions prior to performing IVP too showed sub-optimally functioning kidneys. Thus, it is highly likely that the patient had pre-existing early chronic kidney disease affecting both the kidneys.
(5). The patient also had underlying infection (as evidenced by high leukcyte count). The combination of pre-existing chronic kidney disease with contrast administration and infection lead to gross renal dysfunction, which became evident on 25.4.06.
(6). Subsequently, it was a progressive downhill course from which the renal functions never recovered and the patient became dialysis dependent.
15. The counsel for the appellant submitted that in the report of the AIIMS, there is nothing to hold that there was any deficiency or the negligence on the part of the treatment administered by the doctors of the appellant.
It is further argued that the trouble whatsoever developed by the complainant/respondent is not a result of the procedure conducted by the doctors but the same was due to IVP conducted on the patient.
16. According to the doctors of the Nursing Home, after IVP sometime Nephrology problem arises. We do not agree with this opinion in as much as it is very specifically stated in para 2 in the expert opinion of the AIIMS that through the treatment given was as per standard practice but the details of their observations should be considered with reference to the observations is made in para 1 of this report. It is an admitted case of the appellant that Dr. Handa took the decision to subject the patient to Ureteroscopy., which is on the basis of Ultrasonography, but the report of the AIIMS clearly goes to show that the Ultrasonogram itself revealed normal left kidney and Hydronephrosis of the right kidney. This candidly goes to show that Hydronephrosis of right kidney was ignored by Dr. Handa who straightway subjected the patient to Ureterosocopy. The ignorance by Dr. Handa in this regard and consequently its treatment is a matter of negligence. Further, in para 1 of the report of the AIIMS, it is cleared that diagnosis of a stone was based only on an ultrasonogram which is an observation dependent imaging study. What actual should have been done before ureteroscopy has been stated in the report of the Medical Board. It is clearly mentioned in this report that the performance of a plain X-Ray/Non-contrast CT KUB, and a functional study would have been advisable prior to operative intervention. This is specifically mentioned in para 1 of the report. Why the functional study has not been made by the appellant prior to operative intervention, no reason is mentioned and it is the medical negligence on the part of the appellant. Appellant admitted that the complainant/respondents both kidneys got damaged, which was the real cause of the pain, which the complainant/respondent suffered and persisted till the conclusion of the treatment.
17. Further the District Forum has also found various deficiencies pointed out in the report of the AIIMS and a detailed discussion has been made. Not only the kidney function was ignored even it has been noticed by the Medical Board that the complainant had underline infection, which is clear by high leukocyte count. In clear terms, the Medical Board opinion hat the combination of pre-existing chronic kidney disease with contrast administration and infection lead to gross renal dysfunction, which became evident on 25.4.06
18. Ld. Counsel for the appellant has invited our attention towards various papers which are the medical studies and it is Ann.A1-8.
These papers of the medical studies are not fruitful to the appellant in as much as they are beneficial to those who was conducted the research in the medical field.
19. In view of the above, we do not find any illegality or irregularity in the order of the District Forum and there is no justification to interference.
20. The appeal is dismissed in limini.
21. 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.
22. The FDR, if any, be returned to the appellant as per rules.
(SALMA NOOR) PRESIDING MEMBER (V.K. GUPTA) MEMBER(JUDICIAL) rn