State Consumer Disputes Redressal Commission
M/S St. Stephen'S Hospital vs Masood Zafar on 8 May, 2018
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 08.05.2018 First Appeal No. 65/2006 In the matter of: M/s. St. Stephen's Hospital Tiz Hazari, Delhi : Medical Superintenent St. Stephen's Hospital Near tis Hazari Courts, Delhi. Complainant Versus Masood Zafar, S/o. Late Sh. M. Zafar Bakshi E-256, Gali NO. 6, West Vinod Nagar, Near Manglam Hospital, IP Extension, Delhi-110052 : Respondent CORAM N P KAUSHIK : Member (Judicial) 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes Cases Relied upon Balram Prasad [Dr.], Advanced Medicare and Research Institute Ltd. vs. Dr. Kunal Saha & Others, IV (2013) CPJ 1 (SC); Nizam Institute of Medical Sciences vs. Prasanth S. Dhananka and Others, 2009 (2) CPJ 61 (SC); Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee, (2009) 9 SCC 221; Raj Kumar vs. Ajay Kumar, 2011 (1) SCC 343; Kusum Shrama and Ors. vs. Batra Hospital and Medical Research Centre and Ors., 2010 (1) CPJ 29 (SC). N P KAUSHIK - MEMBER (JUDICIAL) JUDGEMENT
Appellant St. Stephen's Hospital, Delhi has impugned the orders dated 13.12.2005 passed by the Ld. District Forum North, Tis Hazari, Delhi. Vide said orders, the Appellant was held 'deficient in service' and 'negligent'. It was also observed by the Ld. District Forum that the act of the Appellant caused great mental pain and agony to the Respondent. Finally, the Ld. District Forum directed the Appellant to pay an amount of Rs.1 lakh which was the expenditure incurred by the complainant on medicines during the treatment of the patients. Cost of litigation of Rs.2,000/- was also awarded.
Parties hereinafter shall be referred to by their status as it was in the District Forum.
In brief complainant Masood Zafar took her mother Hazara Zafar Begum to St. Stephen's Hospital (in short OP Hospital), Delhi on 15.01.2000 when she suffered severe headache. Patient was admitted after examination. Initially she was suspected of suffering from migraine. An MRI was performed which did not reveal any abnormality. On 19.01.2000 upon her hospitalization, the patient complained of severe abdominal pain. A tentative diagnosis of cholecystitis (gall bladder disease) was made. Ultrasound revealed biliary sludge with mild biliary dilation and showed a stone in the common bile duct. Dr. Lahoti, the Gastroenterologist was consulted who advised ERCP. Procedure of ERCP were performed on 24.01.2000 by Dr. Lahoti. Patient immediately thereafter developed acute pancreatitis. On examination, it was found that pus was being informed in the stomach. Complainant alleged that it was due to excess quantity of laser beams thrown on the gall bladder during ERCP. Condition of the patient deteriorated day by day. She was transferred to ICU on 27.01.2000. She also developed breathing problem. Finally she died on 08.03.2000 in the OP hospital itself.
Defence raised by the OP was that the pancreatitis was a known complication of ERCP and was not a result of use of laser. Contention of the OP was that its decision to perform ERCP could not be faulted. OP submitted that non-performance of ERCP would have been an act of 'negligence'.
Ld. District Forum observed that the documents relating to ERCP suggested that one of the risk factors of ERCP was 'inexperience of the operator'. Ld. District Forum further observed that the OP was 'negligent' in that during the procedure, ducts had been injured. Pus was being formed. Pancreatitis occurred.
Present appeal has been filed on the grounds inter alia that the Ld. District Forum ignored the fact that laser was not used during ERCP. OP hospital did not have a laser machine at that time.
OP/ Appellant further submitted that the Ld. District Forum ignored that the risk of pancreatitis was inherent in ERCP. Contention of the OP is that the development of a complication was not ipso facto indicative of 'negligence'. Lastly, OP submitted that the Ld. District Forum awarded cost of medicine of Rs. 1 lakh whereas the complainant himself had prayed for an amount of Rs.75,000/- only under the said head.
During the pendency of the present appeal, this commission invited experts' opinion from the Dean MAMC (Maulana Azad Medical College). Experts' report dated 06.03.2018 is reproduced below:
"The Medical Board Consisting of following doctors held its meeting on 06.03.2018 in the room of the Chairman of the Board at GIPMER, New Delhi.
1. Dr. AS Puri, Director Professor and HOD, Gastroenterology, GIPMER, New Delhi (Chairperson)
2. Dr. Sanjeev Sachdeva, Professor, Gastroenterology, GIPMER, New Delhi (Member)
3. Dr. Ajay Kumar, Assistant Professor, Gastroenterology, GIPMER,. New Delhi(Member) The Medical Board studied all the submitted documents related to the above mentioned case.
This case pertains to the management of Mrs. Hazara Zafar (wife of Zafar Bakshi; and mother of complainant Masood Zafar who is resident of E-256, Gali No. 6, West Vinod Nagar, Near Manglam Hospital, IP Extension, Delhi-110052) (Patient was admitted at St. Stephen's Hospital, Delhi on 15.02.2000 and expired on 18.03.2000).
Expert opinion of the Medical Board has been sought on "whether there has been medical negligence on part of the Hospital/ Doctors as per documents submitted."
After careful review of the submitted documents, The Medical Board has following salient observations:
This patient underwent ERCP procedure on 24.01.2000. Immediately post procedure she developed Post ERCP pancreatitis which is a well known but unpredictable complication of the ERCP procedure with a reported incidence of about 5% in medical literature. There was no negligence on the part of the treating doctors in the management of Post ERCP pancreatitis which was done as per standard guidelines. However, a note is made of the fact that the indication for performing the ERCP procedure was not very robust. Since the USG abdomen report was not definitive for the presence of CBD calculi, MRCP should have been performed to document the present of CBD calculi before proceeding for the ERCP procedure. Had this been done, this ERCP and its subsequent complication could have been avoided.
The allegation by the complainant that "laser was used during the ERCP" is factually incorrect as (a) ERCP procedure notes of 24.01.2000 did not mention use of laser, and (b) As per the affidavit submitted by the Respondents, the respondent hospital i.e. St. Stephen's Hospital, Delhi did not have a Laser Machine at that point of time.
Perusal of the Experts' opinion shows the following findings relevant for adjudication on the present appeal:
pancreatitis was a well known and unpredictable complication of ERCP;
there was no negligence on the part of the treating doctors in the management of post ERCP Pancreatitis..
Laser was not used during ERCP.
USG abdomen report was not definitive for the presence of CBD calculi. Before proceeding for ERCP, MRCP should have been performed to document the presence of CBD calculi.
Now a question arises whether the treating doctors with a reasonable degree of knowledge could have studied USG abdomen report properly and avoided the performance of ERCP and its subsequent complications. Second question that arises is whether the protocol in the aforesaid scenario demanded going for ERCP without first performing MRCP.
Before proceeding further, it may be mentioned here that ERCP is a procedure which is both diagnostic and therapeutic. It has about 5% reported incidence of the complication called pancreatitis. On the other hand MRCP, is a purely diagnostic procedure having no complication associated with it.
In the present case experts categorically stated that the report of USG abdomen was not definitive for the presence of CBD calculi. Treating doctors were simply having a suspicion of stone being present in the bile duct. In such a situation, doctor with a reasonable knowledge and a reasonable commonsense would have resorted to MRCP. No material has been placed on record by the OP Hospital that on the basis of mere suspicion of presence of CBD calculi, one should jump to ERCP which is having risk of complications. It is not the case of OP Hospital that they did not have the facility of MRCP or could not have an access of the same. It has come on record that no stone either in the gall bladder or the bile duct was found after performing the procedure of ERCP. Treating doctors were in a hurry to perform ERCP. Conduct of the treating doctors thus fell below that of a reasonably competent doctor. It is not a case of difference of opinion or error of judgement.
Clearly, immediate ERCP was not required to be performed as per standard protocol. Doctors with a reasonable knowledge should have resorted to MRCP. It was in such circumstances that the expert opined that indication for performing ERCP was not very robust. In other words a doctor is expected to have a reasonable degree of knowledge. Conduct of the treating doctors fell below that of a reasonably competent doctor. It is not a case of difference of opinion. Treating doctors were in a hurry to perform ERCP without caring for the fact that USG abdomen report was not definitive for the presence of CBD calculi.
Judged from the touchstone of Experts opinion, irresistible conclusion is that the OP Hospital failed to adopt the line of treatment prescribed by standard protocol. Clearly, it was a case of 'medical negligence'. I place reliance upon the case of Kusum Shrama and Ors. vs. Batra Hospital and Medical Research Centre and Ors., 2010 (1) CPJ 29 (SC). Appeal thus filed by the Appellant/ OP Hospital is devoid of merits. The same is dismissed.
Before parting, it may be mentioned here that Ld. District Forum in its orders dated 13.12.2005 held the OP Hospital 'deficient in service' and 'negligent'. Besides this, Ld. District Forum held that the complainant suffered a great mental pain and agony due to the said negligence. Even after giving a finding to that effect, Ld. District Forum awarded an amount of Rs.1 lakh stated to have been incurred on medicines only. Complainant in his prayer clause of his complaint before the Ld. District Forum had prayed for the following reliefs:
"Mental pain and agony due to the death of the mother of the complainant Rs.1,00,000/- Permanent deprivation from the love & affection of the Mother Rs.1,00,000/- Expenses on conveyance & medicine During the treatment of the mother Rs. 75,000/- Damages for causing death to the Mother of the complainant Rs.2,00,000/- Total: Rs.4,75,000/-
In view of the submissions made above, it is respectfully prayed that the Hon'ble Forum may be pleased to direct the responsible to pay an amount of Rs.4,75,000/- alongwith the interest penedentelite and future interest @12% per annum jointly and severally as the same is very necessary in the interest and furtherance of justice."
In the case of Raj Kumar vs. Ajay Kumar, 2011 (1) SCC 343 Supreme Court described, the heads under which compensation is awarded in personal injury cases as under:
"(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing foods, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
Loss of earning during the period of treatment;
Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/ or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity)".
In the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee, (2009) 9 SCC 221, Supreme Court stated the principles to be kept in mind in awarding compensation in detail as under:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the lost of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
In the case of Nizam Institute of Medical Sciences vs. Prasanth S. Dhananka and Others, 2009 (2) CPJ 61 (SC), the Supreme Court cautioned holding thus:
"... the court has to strike a balance between the inflated and unreadable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The 'adequate compensation' that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned."
Coming to the case in hand Mst. Hazara Zafar Begum was 45 years old at the time of her death. Presuming her working life to be upto the age of 65 years, period of 20 years from the date of award of compensation would be a reasonable length of time for calculating the amount of compensation. She was a house wife. Secondly complainant has failed to disclose the names and other particulars of the dependents of his deceased mother. Calculating the amount of compensation this way would be much higher than the amount of compensation sought by the complainant in his complaint. Since the complainant has prayed for merely an award of Rs.4,75,000/- only, I restrict the amount of compensation to the said amount. As discussed above treating doctors failed to observe the protocol which resulted into pancreatitis and the consequential death. Mental agony of the complainant and other dependents of the deceased, one can imagine especially so when she was only 45 years old. Accordingly, OP is directed to pay to the complainant a compensation to the tune of Rs.4,75,000/- alongwith interest @12% per annum w.e.f 08.03.2000 i.e. from the date of death till the date of its realization. OP shall pay the aforesaid amount to the complainant within a period of 30 days from today failing which it shall carry interest @18% per annum. Appeal is accordingly disposed of. File be sent to record room.
(N P KAUSHIK) MEMBER (JUDICIAL)