State Consumer Disputes Redressal Commission
R.P. Madan vs .Batra Hospital & Medical Research ... on 4 October, 2007
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: 04-10-2007 Complaint Case No. C-321/1998 Shri R.P. Madan, Complainant B-5/62,Azad Apartments, Through Shri Aurobindo Marg, Mr. S.K. Sharma, New Delhi-110066. Advocate. Versus 1.Batra Hospital & Medical Research Centre, Opposite Party No.1 1, Tughlakabad Institutional Area, through Mehrauli Badarpur Road, Mr. Manavendra Verma, New Delhi-110062. Advocate. 2. The New India Assurance Co. Ltd. Opposite Party No.2 124, Jeevan Bharti, Through Connaught Circus, Mr. Binay K. Das & New Del;hi-110001. Mr. A.K. Raina, Advocates. 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) Complainant R.P. Madan has sought the following compensation for having contracted Hepatitis-B virus while being operated upon at the OP-Hospital for Cist in the soft palate on account of medical expenses incurred by him:-
I. Actual expenses
(a) Towards tests, medicines etc.
(b) Total bill of PSRI
(c) Taxi & Misc. Transport on other expenses Rs. 19,783/-.
Rs. 60,195/-
Rs. 20,000/-
II.
Anticipated expenses on medicines and treatment Mr. Madan is required to take regular treatment and the expenditure is recurring one. On an average an amount of Rs. 1,000/- p.m. is spent on treatment and medicines and other expenses on driver etc. since he cannot drive the vehicle. He is aged 64 and with life expetency of 80 years, as per the longevity in the family history, for 16 years he may be required to spend an amount of Rs. 1,92,000/-
III.
Loss of Future earnings Even after retirement Mr. Madan has been actively working and earning well. AS a result of his sufferings, he has not been able to render any service and earn any amount of money. Thus it is a total loss of earning. This loss of earning, on an average comes to Rs. 6,000/- per month for at least a period of 10 years.
Rs. 7,20,000/-
IV.
For mental shock, suffering, pains and torture and dependency.
Rs. 10,00,000/-
Total Rs. 20,11,978/-
2. Complainant was employed in Central Government service till April 30, 1992 when he retired as Deputy Advisor in Planning Commission. After retirement he worked as Officer on Special Duty in the National Commission for Women for three years and subsequently worked as Administrator in a religious Trust till he developed Hepatitis be in February, 1998.
3. The complainant was admitted to Opposite Party-Batra Hospital and Medical Research Centre, New Delhi on 18.11.1997 for operation of Cist in the soft palate. The operation was done by Dr. Kapil Kumar, Oncology Surgeon on 20.11.1997 under general anesthesia. All the necessary blood tests, ECG, X-Ray, etc. had been done in the OP-Hospital before the operation and nothing abnormal was found. The complainant was discharged on 21.11.1997.
4. After about 2 months, i.e., on or about 9th February, 1998, the complainant developed signs of jaundice. This was confirmed by the blood tests done on 13-02-1998 and 14-02-1998 in two Pathological Laboratories. Dr. Sethia suspected acute hepatitis B positive and the case was referred to Pushpavati Singhania Research Institute (PSRI) for further investigations and treatment.
5. The tests at PSRI confirmed that the complainant was suffering from hepatitis B virus. As his condition was serious, he was admitted in the PSRI immediately on 18.02.1998. Ultimately, the complainant was discharged on 15.03.1998, but the treatment has continued till now.
6. Hepatitis B being a deadly and longer lasting disease (at times fatal), the complainant and his wife and the members of their family suffered very traumatic experience. Their only son, who is a Chemical Engineer and settled in USA was required to come to India. As a consequence to Hepatitis B virus, the complainant became incapacitated. His very small requirement was required to be attended to by his wife. Complainants wife is also old and she has lost vision in one eye and has a very small vision in the second eye.
7. Complainant addressed Registered A.D. letter dated 17.08.1998 to the OP hospital. The authorities have not taken any cognizance of this letter dated 17.08.1998. This indifference and callous attitude is as a result of their inefficient service. As a result of deficiency in service, the complainant suffered a serious viral disease as a result of which the complainant incurred a huge expenditure.
8. In its defence the OP-Hospital has come up with the following version:-
(i) The complainant has concealed that prior to his visiting the OP Hospital, he had undergone several blood tests outside and some of these tests were also got done at Ram Manohar Lohia Hospital. The State of the Government run hospitals is public knowledge.
(ii) Even otherwise, in approximately half of the patients with acute Hepatitis B there is no history of an identifiable percutaneous exposure. Many cases of Hepatitis B result from less obvious mode of non percutaneous or covert percutaneous transmission. HBSAG has been identified in almost every body fluid-saliva, tears, seminal fluids, gastric juice, breast milk, pleural fluid, urine and rarely in faces. There is abundant evidence to suggest that some of these fluids, notably semen and saliva have been shown to be infectious. So intimate contact with an affected person is considered the route of infection.
(iii) Complainant has been a chronic chain smoker, a mild diabetic and a hyper-tensive, presented himself at the OP-Hospital on 18-11-1997 with a lesion in the soft palate, almost in the middle of the size of 1 x 1 cm. Since excision biopsy of the soft palate lesion is not possible under local anesthesia, this procedure was done under general anesthesia. The complainant was admitted in a single room and post-operatively recovered with liquid diet and subsequently put on diabetic oral diet on 21-11-1997 and discharged.
(iv) In the operation theatre of the OP hospital, all instruments are autoclaved (sterilized by steam at high temperature and pressure). Only disposable needles, syringes, IV cannulas, IV fluids, endotrachel tubes, connections are used for anesthesia purposes. The Hospital uses separately packed and individually sterilized instruments for each operation on one particular day. The incubation period of Hepatitis B virus is 30 to 180 days.
The complainant could have contacted the virus from any source before visiting the OP hospital. There are various ways of contacting Hepatitis B besides needle pricks.
(v) Hepatitis B can be transmitted through sexual activity, both heterosexual and homosexual.
(vi) It is denied that the complainant had been infected during his stay in the hospital.
(vii) It is denied that there was any deficiency in service provided by the OP hospital.
(viii) That a person may be a carrier of Hepatitis B and remain undetected. It is quite probable that the complainant was already carrying the virus even before his operation at the OP-Hospital.
(ix) That it is incorrect to conclude that Hepatitis B suffered by the complainant originated in the OP-Hospital. The course of this virus is not blood and contaminated instruments alone but is also transmitted by body fluids such as semen., vaginal secretions, and saliva as well as through intimate sexual contact. Hepatitis B can also be contacted through blood sucking anthropoids like mosquitoes.
(x) That before and after the complainants hospitalization, thousands of other patients have been relieved of their sufferings by the same medical personnel at the very same Hospital
9. In support of his allegations the complainant has produced and relied upon the following documents, besides medical literature:-
(i) Annexure 1 (pages 11 to 16) is the collective write up on Hepatitis B Transmission.
(ii) Annexure 3 is letter dated 20-07-1998 sent by the complainant to the Minister of Health, GNCT, Delhi.
(iii) Legal notice dated August 17, 1997 (pages 19 to 28) sent to the OP-Hospital by the complainant.
(iv) Annexure 5 is Detains of expenditure incurred at the OP-Hospital.
(v) Discharge summary dated 21-11-1997 issued by OP hospital (page 31-32).
(vi) Discharge summary dated 14-03-1998 of PSRI, Sheikh Sarai (page 33).
10. On the concept of medical negligence we have culled out certain criteria from large catena of cases i.e. from Bolams case followed by number of cases of Supreme Court including the recent judgment in Jacob Mathews case. 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?
References :-
(i) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(ii) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(iii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(iv) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(v) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651.
(vi) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369.
11. As is apparent from the rival contentions and the pleading of the parties, the OP has ruled out any negligence on its part while operating the complainant firstly on the ground that the complainant had been undergoing various tests and modalities of treatment in the past and had been subjecting himself to a regular health check up at different hospitals and the instruments used by the OP-Hospital are sterilized by autoclaving and separately packed and individually sterilized instruments for each operation on one particular day. On that day complainant was the first patient on that particular day when the theatre facilities are fresh yet unused and maximally clean.
12. Another significant contention of the counsel for the OP in this regard is with regard to Hepatitis B is that the source of virus is not the blood and contaminated instruments alone but it can be transmitted by body fluids such as semen, vaginal serections, saliva as well as through intimate sexual contact and also can be contacted through blood sucking anthropoids like mosquitoes. In this regard OP has referred to and relied upon the following medical journal:-
HBV transmission.
HBV is highly infectious. It is estimated to be 100 times more infectious than the AIDS virus (HIV). It has been found in carriers in virtually all secretions and excretions of the body. Daily living, therefore, provides many opportunities for transmitting virus from a carrier or an acutely infectious person to a susceptible individual:
(i) The major recognized routes of HBV transmission are :-
Sexual Parenteral or percuatneous Perinatal (vertical transmission) Horizontal (e.g. between siblings).
(ii) Hepatitis by Roger Y. Dodd, Chapter 38 Broadly speaking HBV transmission is charact6erized by two major routes: (1) The perinatal route, in which an infected mother transmits the virus to her baby at or around the time of birth; and (2) horizontal transmission by a number of routes, but particularly during sexual intercourse.
In addition to birth to an infected mother, there are number of well-established behavioral and environmental risk factors for HBV infection that reflect the transmission routes. These risk factors include intravenous drug use. Sexual exposure to infected partners (particularly for male homosexuals), exposure to nonsterile skin-piercing instruments, and employment in a health-care environment.
The virus is relatively stable on surfaces and is thus transmitted by a number of formalities, including such unexpected items as file cards (in association with paper cuts), shared razors and toothbrushes, and so on. It should also be noted that contamination of the mucous membranes with droplets of infected fluids may lead to infection as may entry of the virus through even extremely minor skin wounds and abrasions.
13. On the same subject the counsel for the complainant has also relied upon the following documents:-
(i) Hepatitis B transmission (Journal of the American Medical Association) Commentary In addition to blood HbsAg has been found in almost all body secretions and excretions. Only blood, serum-derived fluids, saliva, semen and vaginal fluids have been shown to be infectious.
Hepatitis B can therefore be transmitted through sexual activity, both heterosexual and homosexual and this is particularly important in areas of low endemicity. The virus can also enter the body through contact with contaminated blood or saliva through small skin wounds or open sores, shared personal items such as toothbrushes, combs and razors which can carry minute amounts of contaminated blood.
In the workplace infection can be spread by accidental needle stick injuries, splashes onto mucous membranes, or penetration of the skin by an infected object.
(ii) Hepatitis B Virus
14. As is apparent the medical literature show that incubation period i.e. the period within which the symptoms of disease manifest themselves after acquiring of infection by an individual ranges from 30 to 180 days. The OP has taken the plea that complainant might have contracted this Hepatitis B at some other place as he had been undergoing various tests and modalities of treatment in the past and had been subjecting himself to a regular health check up at different hospitals. If it is so the complainant should have contracted Hepatitis B within 180 days prior to his admission in the OP-Hospital i.e. 18-11-1997. However, Hepatitis B was suspected on 9th February 1998 when test conducted upon him was found positive though on 18th February 1998 his condition was serious and therefore he was admitted in PSRI where preliminary check ups confirmed that the complainant was suffering from Hepatitis B. OP has not produced any kind of record or material that prior to November 1997 the complainant had while undergoing treatment in other hospitals had developed Hepatitis B which could not be cured as it is this symptom which prima facie leads to the conclusion that the patient may be suffering from jaundice and if he is not recovering then he is advised for check up for Hepatitis B.
15. The long duration of three months between the admission of the complainant in the OP-Hospital and the detection of the Hepatitis B leads to the inference that Hepatitis B was contracted by the complainant while he was under the treatment in the OP-Hospital. However, during admission and treatment drugs and injections were being given and possibility of syringes and needles having caused Hepatitis B cannot be ruled out though there are varied other reasons.
16. The photo sensitivity disease period during which the complainant remained under treatment of the OP was a crucial period that resulted in development of Hepatitis B and not at prior point of time. Had it been so complainant would have suffered it in a stage prior to the coming to the OP-Hospital. At the time of admission he was subjected to various tests etc. and was not subjected to the test of Hepatitis B and rightly so at that time he was having problem of low fever which was not cured. He was admitted for the operation of Cist in the soft pallate which was done on 20th November, 1997 and he was discharged on 21st November 1997. Before admission he was subjected to all the tests including the blood tests.
17. In a similar case another complainant who was suffering same disease took up the issue with the Chairman of the OP-Hospital by writing letter dated 28th March 1998 and pursuant to this a circular was issued on 6th April 1998 by the OP-Hospital which is to the following effect:-
MRC/CIR/MD/2138 Date : 06-04-1998 PREVENTIE STEPS AGAINST HEPATITIS B
1.
Proper sterilization of all instruments used in OT, Dental instruments & Endoscopes with 2% Glutarldehyde (Citadex) for atlest 20 minutes. The cidex solution should be changed after every two cycles or at expiry of activation life whichever is earlier. This includes laryngoscopes, bronchoscopes, ventilatory accessories and all other instruments used in diagnostic and therapeutic procedures. Before cidex treatment, the equipment should be thoroughly cleaned with water followed by soap solution. A separate tray shouldbe used for sigmoidoscopes. Accessories used for haemodilysis and transesophageal echocardiography should be managed as stated above. All staff concerned with intravencur lines and other related procedure must use gloves.
2. Screening of donor blood for BHs Ag; Anti HBc, lgM; SGOT & SGPT, apart from HIV and material parasites.
3. Vaccination against hepatitis B in staff working in high risk areas which includes all medical and para-medical staff (Laboratory, Dialysis, Dental, Laundry, CSSD, OT staff, Sanitary & Incinerator personnel).
4. Consultants, Residents, Nurses, Nursing students & paramedical staff as mentioned above in (4) to be vaccinated against Hepatitis B at the time of new recruitment. It is mandatory.
18. Be that as it may and for our purpose we do not subscribe to the contention of the complainant that this circular was issued pursuant to the letter sent by the complainant.
19. Taking overall view of the matter we deem that lump sum compensation of Rs. 50,000/- which shall include the cost of litigation would meet the ends of justice.
20. However, in view of the stand taken by the OP-Insurance Company that OP No.1 has not furnished any kind of details as to the insurance policy, OP No.1 will have an independent remedy for the claim from the Insurance Company on the basis of finding of this Commission in this case. In our view the OP-Hospital and Insurance Company have an independent contract with which the patient or the consumer has no concern.
21. Aforesaid payment shall be made within one month from the date of receipt of this order.
22. 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.
23. Announced on the 4th October, 2007 (Justice J.D. Kapoor) President (Rumnita Mittal) Member jj