State Consumer Disputes Redressal Commission
Ansari Hospital vs Monika Gupta on 26 April, 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: 26.04.2007 Appeal No.07/107 (Arising from the order dated 12.01.2007 passed by District Forum(South West) Sheikh Sarai, New Delhi in Complaint Case No.180/2006) 1. Ansari Hospital Appellant Through its proprietor/owner through Mr. Kapil Chawla Dr. A. Ansari, advocate. Behind Luxmi Narain Mandir, Sagarpur, Delhi. 2. Dr. Monika Gupta W/o Dr. Ashutosh Gupta, WZ-55, 2nd Floor, Janak Park Hari Nagar, Delhi. Versus 1. Sh. Nitin Kumar Respondent 2. Master Sahil S/o Sh. Nitin Kumar (Being minor through natural guardian and father) Both Resident of WZ-1316, Nangal Raya, P.S. Dabri, Delhi. 3. Dr. Arvind Kumar, C/o Vibha Specialty Clinic, WZ-1635, Nangal Raya, Opp. Bhoop Singh Park, New Delhi. R/o S-4, South End Lane, New Delhi. 4. Dr. Atul Wadhwa, R/o E-181, Greater Kaialsh-II, 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)
1. Appellant No.1 Hospital has no licence nor has it an ICU facility. One young woman Smt. Ritu alias Puja Verma felt pain in the right side of her abdomen and shifting pain in right side of lower back. Respondent Dr. Arvind Kumar prescribed some medicines to her and advised some clinical tests. On examining the tests report, he advised the unfortunate woman to go for operation for removal of gall bladder stone. Dr. Arvind Kumar arranged to undertake the operation by means of laproscopic method in appellant No.1 hospital against payment of Rs.20,000/-. She was taken to the operation theatre at around 9.15 Am and after about an hour an ambulance was called from Bhagat Hospital as there was some complication in the midst of the operation as she developed rashes on her body and her blood pressure lowered considerably requiring immediate management. Since there was no facility available in the appellant No.1 Hospital, she was taken to Bhagat Hospital. On reaching the said hospital she was declared having been brought dead. The cause of death was over dose of anaesthesia administered by the appellant No.2 Dr. Monika Gupta. Her husband and minor son filed the instant complaint before District Forum for compensation alleging medical negligence and deficiency in service on the part of the appellants.
2. Vide impugned order dated 12.01.2007, the District Forum allowed the complaint by awarding compensation of Rs.5,00,000/- by holding the appellants and other doctors jointly and severally liable. Out of the awarded amount Rs.2,00,000/- was payable by appellant No.1 Ansari Hospital, Rs.1,50,000/- was to be paid by appellant No.2 Dr. Monika Gupta and Rs.75,000/- was to be paid by Dr. Arvind Kumar and Dr. Anil Wadhwa to the husband and minor of the deceased Smt. Puja Verma.
3. Feeling aggrieved the appellants have preferred this appeal.
4. There is no dispute that the deceased Smt. Puja Verma was under the treatment of Dr. Arvind Kumar who had advised removal of gall bladder stone and offered to conduct operation at the appellant No.1 hospital. There is also no dispute that immediately after administration of drug for anaesthesia the deceased developed rashes on her body and her blood pressure lowered considerably requiring immediate management. There is also no dispute that there was no ICU facility in the appellant No.1 hospital and as such the complication could not be managed by the appellant hospital and the deceased was advised to be shifted to another big hospital. On reaching the said hospital at Janak Puri, she was declared having brought dead. There is also no dispute that before contacting Dr. Arvind Kumar she was normal and there was no previous history of any ailment.
5. While justifying that the hospital was being run legally, the learned counsel for the appellants has contended that the appellant No.1 had filed a writ before Delhi High Court for restraining the Government authorities from closing down the hospital as the appellant hospital had applied for registration and the High Court of Delhi granted the required relief to the effect that no penal action shall be taken against the appellant hospital for non-compliance of Rule 3 of Delhi Nursing Home Regulations and Registration Amendment Rule 1992.
6. In our view mere application for licence and direction of the High Court that no penal action shall be taken, are two different things. Merely because at that time no registration of Nursing Home was being allowed by the Government does not mean that all the Nursing Homes being run without licence were exempted from the provision of Consumer Protection Act 1986, as whatever the treatment or facilities they were providing had to be prefect and without any fault or deficiency.
7. Running of Hospital or Nursing Home without licence may invite some penal action by the Government but by no stretch of imagination it can absolve such hospitals or Nursing Homes from the consequence of deficiency in service or medical negligence on the part of the Nursing Home or Hospitals or lack of emergency arrangement to meet out the apprehended complications that may arise during the treatment or operation causing injury or mental agony or harassment or resulting in the death of the patient.
8. Since the remedy under the Consumer Protection Act 1986 by virtue of Section 3 is an additional and independent remedy and not in derogation to any other law for the time being in force, every act of omission and commission on the part of the hospitals or nursing homes if run without licence or with licence has to be tested on the anvil of definition of deficiency provided by Section 2(1)(g) which is as under:
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 undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service.
9. Thus in our view any hospital or nursing home being run without licence and with protection of the High Court only against penal action and also being run with licence has to maintain the standard of quality, perfect, manner of performance, it has been undertaken to be performed in pursuance of a contract or otherwise in relation to any service.
10. In our view no nursing home or hospital can absolve from the liability or consequence arising from lack of arrangement or management of any complication a patient may encounter or suffer either during or after the operation or treatment, amounts to deficiency in service as no hospital or nursing home should undertake treatment of a patient whose apprehended or un-apprehending complication arising before or during and after the operation or the treatment it cannot manage or if it has no arrangement like ICU or of those doctors who are skilled in dealing or management of complication arising during the treatment. If any hospital chooses to attend the such a patient if does so at its own peril. Protection against the penal action is not exemption from compensatory, directory or punitive action as contemplated by the Consumer Protection Act 1986 for deficiency in service of medical negligence.
11. It was with a view to protect the interest of the consumer at large that very high and stern standards of service, quality, and manner of performance were provided by the legislature. It was to avoid exploitation of the poor consumer by the unscrupulous manufacturers, traders and service providers like hospitals, Nursing Homes, that the legislature by virtue of Section 2(1)(d) and 2(1)(g) provided such a definition of defect and deficiency that took care of each and every suffering suffered by a consumer at the hands of these persons. According to these definitions any kind of fault, imperfection, shortcoming or inadequacy in the quality, nature of performance, which is either 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. Each and every section appearing in this Act is of such a significance and importance and has such a meaning that it is difficult for any unscrupulous or deficient service provider, manufacturer or trader to save himself from consequence arsing from his acts of omission and commission and negligence.
12. Similarly under the provisions of Section 14 of the Consumer Protection Act 1986, particularly Section 14(1)(d) every service provider like nursing home and hospital is liable to compensate the consumer as to the actual loss or injury suffered by him or the injury which includes mental agony, physical injury caused due to negligence of the opposite party. Supreme Court has in Ghaziabad Development Authority Vs Balbir Singh in (2004) 8 CLD 861(SC) provided wide connotation to the word Compensation appearing in section 14(i)(d) as under:
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
13. Now we come to the merit of the case. The solitary edifice on which the counsel for the appellant is trying to save the appellants is that the allergy suffered by the deceased in the midst of the operation was not result of over dose of anaesthesia and further that the drug which is administered by way of anaesthesia is so sensitive that it can cause death in 4.3% and cerebral damage in case of anaesthetic mishaps. The aforesaid percentage is mainly prevalent in Australia and UK.
14. It is pertinent to mention at this stage that a criminal case was registered against the hospital and the doctors. Counsel for the appellant has relied upon the CFSL report obtained by the police showing as under:
after various chemical tests and chromatographic analysis the following results were obtained:
1.
that position could not be detected in the exhibits.
2. results related only to exhibits tested.
3. Reports shall not be reproduced except in full without the written approval of the Director.
15. In our view the medical negligence and for that purpose negligence or deficiency in service, by service provider like hospital is of varied kinds.
Some of these deficiency may be of administrative nature that there may delay in providing blood to a patient who could die if blood transfusion is delayed for some time or not providing oxygen cylinder for want of which the patient is likely to suffer, some time fatal, or admitting the patient in the Nursing Home or hospital knowing it well that the doctors who are specialized and skilled for treating the patient are not available for some reason or the other. Sometimes, sanitary conditions of the hospital are so bad that it contributes to the worsening condition of the patient. Sometimes, the wherewithal and paraphernalia of the hospital who have very high reputation and claims themselves to be a five star or seven star hospital are not adequate.
16. In common parlance, medical negligence is understood as negligence of the treating doctor as to the line of his treatment being not as per medical procedure, or deficiency or negligence in operating the patient causing complications of various kinds. Whenever a patient lands in the hospital or nursing home each and every aspect of service congenial atmosphere, sanitary condition, availability of every equipment or arrangement and management of every kind of doctor, which may be needed during the operation etc. Any lack of these things or want of these acts amounts to deficiency in service and comes within the ambit of negligence much less medical negligence.
17. 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 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. 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)
17. 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.
18. 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.
19. 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.
20. 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)).
21. 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?
18. Even if we go by the percentage of 4.3% resulting in death and cerebral damage, it is beyond our comprehension that a young woman who has no complication or ailment of any kind and never suffered from any kind of disorder and was having one minor child and leading healthy life and on clinical tests was found having a stone in the gall bladder died within minutes of administration of anaesthesia and developed such allergy autopy that before she reached a nearby hospital in the ambulance she succumbed on the way. There cannot be any other inference drawn from these circumstances than that the drug administered to the deceased was of such high dose or quality that solely became the cause of death.
22. Foregoing reasons persuade us to dismiss the appeal being wholly devoid of merit. We do feel inclined to interfere with the quantum of compensation awarded by the District Forum as the husband was deprived of her company for whole life and the minor child is deprived of the love, affection and bringing up by the mother. However, if any of the appellants or other doctors has obtained insurance policy against medical perils the first charge for recovery of the amount shall be against the insurance company.
23. The order shall be complied with within one month from the date of receipt of this order.
24. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
25. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 26th day of April 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri