National Consumer Disputes Redressal
Suman Sharma & Ors. vs M/S. Ayushman Hospital & Ors. on 30 May, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 189 OF 2010 1. SUMAN SHARMA & ORS. W/o Late Kshitij Sharma,
R/o A-19, Plot No.7,
Balaji Apartments,
Sector - 3,
Dwarka NEW DELHI - 110 078 2. CHARU SHARMA (MINOR) Through her Mother & Natural Guardian Smt. Suman, D/o Late Kshitij Sharma, R/o A - 19, Plot No. 7, Balaji Apartments, Sector 3, Dwarka NEW DELHI - 110 078 3. KAMLA SHARMA W/o Sh. M.R. Sharma, R/o A - 19, Plot No. 7, Balaji Apartments, Sector 3, Dwarka NEW DELHI - 110 078 4. M.R. SHARMA S/o Late Bachhi Ram Sharma, R/o A - 19, Plot No. 7, Balaji Apartments, Sector 3, Dwarka NEW DELHI - 110 078 ...........Complainant(s) Versus 1. M/S. AYUSHMAN HOSPITAL & ORS. Through its Propr
Ashirwad Chowk,
Sector-12, Dwarka NEW DELHI - 110 075 2. DR. RAJESH MADAN C/o M/s. Ayushman Hospital, Ashirwad Chowk, Sector - 12, Dwarka NEW DELHI - 110 075 3. DR. AKASH JAIN M/s. Ayushman Hospital, Ashirwad Chowk, Sector - 12, Dwarka NEW DELHI - 110 075 4. . - - - 5. . . ...........Opp.Party(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER
FOR THE COMPLAINANT :
Dated : 30 May 2023 ORDER
Appeared at the time of arguments
For the Complainant : Mr. Rakesh Kumar, Advocate
Ms. Tanisha Kaushal, Advocate
For the OP-1 to 3 : Ms. Rekha Aggarwal, Advocate
For the OP-4 to 6 : Deleted Vide Order dated 09.07.2019
Pronounced on: 30th May 2023
ORDER
1.The present Complaint has been filed under Section 21(a) of the Consumer Protection Act, 1986 (for short, the 'Act 1986') by the Complainant - Suman Sharma & 3 Ors. against the Opposite Parties - M/s. Ayushman Hospital & its 2 doctors for the alleged medical negligence and wrong treatment which resulted into untimely death of the kin of the Complainants.
2. The Complaint 2.1 The case of the Complainants is that Kshitij Sharma, aged 31 years (hereinafter referred to as the 'patient' or the 'deceased') sought medical treatment at Ayushman Hospital (OP-1) on 26.09.2009, presenting symptoms of fever, nausea, and vomiting. Dr. Akash Jain (OP-3) prescribed medication for three days without testing Swine flu, despite the symptoms. As the patient's condition worsened, he was admitted to the OP-1 hospital on 29.09.2009. Dr. Ramesh Madan (OP-2) prescribed laboratory tests, but no Swine flu test was advised. It was alleged that on 02.10.2009, only after heated arguments from the patient's family, the swine flu test was sent. The patient's condition deteriorated further, therefore, he was transferred to Max Super Specialty Hospital on 03.10.2009. The test report of Swine flu was sent to Max Hospital that the test was positive. Therefore, subsequently, the Max Hospital referred the patient to Ram Manohar Lohia (RML) Hospital, but his condition did not improve and he was declared dead on 04.10.2009 due to cardio respiratory and multiple organ failure because of H1N1 infection.
2.2 According to the Complainants, the doctrine of Res Ipsa Loquitur applies in the present case. The World Health Organization (WHO) had already declared it a global pandemic, the period when H1N1 infection was prevalent worldwide, including Delhi in India. The hospitals were on high alert. Despite these circumstances, till 02.10.2009, the patient was not referred for a test to detect H1N1 virus infection, but various other tests were conducted. The patient was on continuous treatment at OP-1, but due to the delayed reference for H1N1 testing, the diagnosis of Swine dlue was delayed. Thereafter, the patient was shifted to MAX Hospital and ultimately, he died at RML Hospital on 04.10.2009. It was the negligent management of the patient.
2.3 Being aggrieved, the Complainants filed this Consumer Complaint before this Commission and prayed sum of Rs.6,27,52,550/- as a compensation for the loss suffered by them due to the wrong treatment and negligence behaviour of the OPs.
3. Defence: -
3.1 The OPs-1 to 3 filed their common Written Versions, denying allegations of medical negligence. They raised a preliminary objection that the Complaint is not maintainable under the Act, 1986. It was contended that the Complainants concealed important facts, including the patient's initial visit to the hospital for symptoms of jaundice and his subsequent visit without fever or symptoms indicative of swine flu. The patient's attendants expressed satisfaction with the treatment provided. The OPs- 1 to 3 further contended that the Gastroenterologist of OP-1 Hospital and the Max Hospital were deliberately omitted as a necessary party from the complaint. Moreover, the patient's death was a result of viral hepatitis and gastroenterology issues, which the Complainants were unwilling to accept.
3.2 It was further submitted that as Swine Flu was a new flu virus (H1N1), the symptoms as per WHO guidelines were fever, cough, sore throat, running or stuffy nose, body aches, headaches, chills, and fatigue. The patients who have any disease-causing immunosuppression are at more risk of complication with Swine Flu infection.
3.3 In the instant case, the patient - Mr. Kshitij Sharma, did not exhibit any symptoms of Swine flu as defined by medical journals and websites published by WHO/CDC. He was presented with fever, nausea, vomiting, and jaundice, which later confirmed to be symptoms of viral hepatitis. There was no need to conduct a Swine Flu test, however, on 02.10.2009, the patient experienced mild breathlessness and drowsiness. The Chest Specialist and Gastroenterologist examined the patient in order to the ongoing pandemic. The sample was sent to approved Govt. laboratory for testing. The OPs further submitted that the patient's primary cause of complication was fulminant hepatic failure, and his demise was attributed to his immune-compromised condition, but it was not a delayed diagnosis of Swine Flu. The OPs further submitted that having reputation, there had been no previous complaints against them.
Arguments
4. Heard the arguments on behalf of the Complainants and OPs- 1 to 3. The OPs- 4 to 6 were deleted from the array of parties vide order dated 09.07.2019.
4.1 The learned Counsel on both the sides reiterated their evidence on record. They filed medical literature on the subject and textbook references alongwith brief notes of written arguments.
5. Arguments 5.1 Arguments from Complainant The Learned counsel for the Complainant vehemently argued that it was the case of Res Ipsa Loquitor. The untimely death of a young individual with a promising future is attributed to the OPs' negligence. The Counsel emphasized that the OPs' negligence not only took away a promising life but also inflicted irreparable damage, both emotionally and financially, upon the complainants. He argued that the OPs failed to diagnose correctly the H1N1 infection. There was no issue of the cost or payment of the test for H1N1 as the patient was covered under medical insurance policy. The Counsel relied upon few judgments of Hon'ble Supreme Court viz. V. Kishan Rao vs. Nikhil Super Speciality Hospital and Anr.[1]; Jacob Mathew vs. State of Punjab[2] and Balram Prasad vs. Kunal Saha[3].
5.2 Arguments from OP Nos. 1 to 3The Counsel for the Opposite Parties argued that the Complainants have made false and baseless allegations and concealed important facts that he took treatment in other hospitals for the symptoms of nausea and loss of appetite. Initially, he refused admission to OP-1 Hospital and did not exhibit symptoms of swine flu. The patient's attendants expressed satisfaction with the treatment. The decision to conduct the swine flu test was taken after the discussion with the Complainants. He further argued that the patient was eventually shifted to Max Hospital for treatment of liver failure as diagnosed at Ayushman Hospital. The doctors at Max Hospital diagnosed the same. The Max Hospital and the treating Gastroenterologist were not made a party to the Complaint. The patient died due to fulminant hepatic failure, but not due to late diagnosis of Swine flu.
6. Findings & Discussion:
6.1 I have perused the medical record, the discharge summary of Max Hospital is more relevant. The hospital course was stated as below:
Mr. Kshitij Sharma was admitted in ICU. He was electively intubated and ventilatory support was given. CBC revealed HB-9.6, TLC-4400, Platelet count-45,000. There was marked coagulopathy with INR>1 min and APTT> 2min. HBsAG, Anti HCV malaria dengue serology were negative. LFT showed Bilirubin - 9.1/6/1, ALT-1171, AST-3842, SAP-133, GGT-65. He was in marked azotemia with Urea-184, Creatinine-6.4, Sodium-140, Potasium-5.5, Lactate level was 11.7, (normal 1.2). Broad spectrum antibiotics were given (Meropenenum, line zolid), along with neksium, and supportive measures. IV norepinephrine infusion was started for hypotension. Nephrology consultation was taken from Dr. Alka Bhasin. The report of throat swab for H1N1 sent from previous hospital on (02/10/09) was received as positive. In accordance with Govt. of India guidelines and policy of this hospital, the patient is being transferred to Ram Manohar Lohiya hospital for further management.
6.2 I have perused the Harrison's Book of Internal Medicines (14th Ed.). The patient presented with classical symptoms and signs of viral hepatitis. The Bilirubin and the aminotransferases (SGOT & SGPT) were very high. It was significantly deranged LFT. Thus, the treating doctors diagnosed it as a case of viral hepatitis and the treatment was started under the same direction. Therefore, the OPs have no suspicion about Swine flu, hence H1N1 test was not advised. Thereafter, the patient was referred to Max Hospital for management of fulminant hepatitis, but during treatment, he died due to hepatic failure.
6.3 On perusal of entire medical record from Ayushman Hospital and Max Hospital, the treating doctors investigated the patient to arrive the diagnosis. The Swine flu symptoms were not evident, therefore, H1N1 test was not done, which in my view, was neither deficiency nor negligence of the OP-1 Hospital or the doctor. The LFT report clearly establishes the diagnosis of fulminant hepatitis. It is pertinent to note that after four days of treatment in the Ayushman Hospital, the throat and nasal swab was sent for H1N1 PCR test on 02.10.2009, but its report was available on the next day; by that time the patient was shifted to Max Hospital.
6.4 At the Max Hospital, he was diagnosed as fulminant hepatic failure, acute renal failure, grade-I encephalopathy, coagulopathy and thrombocytopenia and H1N1 viral infection. The patient was treated with higher antibiotics, transfused blood and plasma. During treatment at MAX Hospital, the H1N1 positive report was received and as per the Govt. of India's guidelines and policy. The patient was shifted to the notified RML Hospital. In my view, the referral to RML Hospital was not wrong, as there was a Govt. guideline during H1N1 pandemic.
7. The Hon'ble Supreme Court in catena of judgments discussed about the medical negligence. In the case of S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another[4], Hon'ble Supreme Court held that there has to be direct nexus with the proximate cause to sue a doctor for negligence. It was further held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. In the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. Vs Dr. M.A. Methusethupathi & Ors.[5] has laid down in no uncertain terms that merely because doctors could not save the patient, he/she cannot be held liable for medical negligence. The Hon'ble Supreme Court held in para (27) that:
27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
8. Based on the foregoing discussion, I do not find any deficiency or negligence of the treating doctors and hospitals. There is no merit in the instant Complaint. The same stands dismissed.
[1] (2010) 5 SCO 513 [2] (2005) 6 SCC 1 (Para 48) [3] (2014) 1 SCC 34 [4] (2019) 2 SCC 282 [5] 2022 LiveLaw (SC) 391 ........................................... DR. S.M. KANTIKAR PRESIDING MEMBER