State Consumer Disputes Redressal Commission
Sant Parmanand Hospital vs Bishan Chand on 8 February, 2007
(1) IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 08-02-2007 First Appeal No.1126/2006 (Arising from the order dated 04.10.2006 passed by District Forum (North) Tis Hazari, Delhi in Complaint Case No.633/2005) The Medical Superintendent Appellant. Sant Parmanand Hospital through Mr. Ankur Mittal, 18, Sham Nath Marg, advocate. Delhi. Versus Sh. Bishan Chand Respondent. 1091, Multi Storey Building, Timar Pur, 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
1. Vide impugned order dated 04.10.2006, the appellant has been held guilty for medical negligence and directed to pay Rs.1,60,000/- to the respondent for the amount paid by him for treatment of the disease and Rs.1,00,000/- for causing mental agony and harassment and injury and Rs.5,000/- towards cost of litigation.
2. Feeling aggrieved the appellant has preferred this appeal.
3. The allegations of the respondent leading to the impugned order in brief are that the respondent was suffering from throat pain and subsequently he was hospitalized in the appellant hospital on 11.11.2004. He was given the treatment under observation of Dr. R.K. Jasuja and Dr. Sunita Gupta. The treatment was given after due pathological investigations but there was no improvement in the said condition of the respondent. The doctor advised for operation of the nose. The operation of the nose had been held on 18.11.2004 and the respondent was discharged on the next day. Thereafter the respondent did not feel any relief and again complained to Dr. Jasuja and Dr. Sunita who had operated nose of the respondent. They suggested for throat operation. Subsequently, on operation of the throat, left side was done by them on 10.01.2005 and the respondent was discharged on 11.01.2005.
4. According to the respondent on the advice of the said doctors, he was taking medicines and consulted them till 02.05.2005. The said doctors advised to the respondent that throat pain and swelling in left sub mandibutar will be complete within one year. The respondent approached A.I.I.M.S. on 05.07.2004. He got medical report about the pain on 08.07.2005. According to this report the operation of the throat on left side done by earlier doctors was wrong. Thereafter the respondent went to Rajiv Gandhi Cancer Institute and Research Centre, Rohini Delhi on 11.08.2005 and till date he has been under treatment of the said Institute.
5. According to the respondent he has already spent more than Rs.1,60,000/- on his treatment and inspite of having sent a legal notice to the appellant on 24.08.2005 for payment of compensation they have failed to do so. According to the respondent Dr. R.K. Jasuja and Dr. Sunita Gupta could not diagnose the disease properly even after pathological tests.
6. As against this the version of the appellant is that the respondent approached the OPD(ENT) Department on 11.11.2004 with complaint of nasal blockage. After clinical examination, he was found to be having deviated nasal septum to the right side for which surgical correction was advised as to relieve him of nasal obstruction. The respondent at that time did not complain of any of the problem particularly the problem related to throat/tonsils. As such surgery (Septoplasty) was performed on the respondent under local anaesthesia on 18.11.2004 and he was subsequently discharged on 19.11.2004. After a period of about two months, the respondent again presented himself in the OPD(ENT) Department with complaint of pain in throat and swelling below the left angle of lower jaw. After diagnosing by the specialist, the respondent was prescribed appropriate antibiotics and the requisite medicines so as to reduce swelling. However the respondent did not respond to the treatment.
7. That keeping in view the respondents prolonged habits of smoking and drinking, needle operation biopsy (FNAC) was recommended to rule out any evidence of cancer. The requisite test was performed by Dr. D.K. Gulati, a very senior and competent pathologist of Ashok Vihar, Delhi but the report did not show any evidence of malignancy following which the respondent was advised surgical removal of affected salivary gland and after removal the gland was sent for histopathological examination so as to rule out any evidence of malignancy in any part of the gland. The said histopathological report again came out to be negative for any evidence of cancer and even the respondent did not have any symptoms of any evidence relating to malignancy of tonsils. The respondent continued to follow up in the OPD of the appellant hospital till 02.05.2005. Thus according to the appellant it is evident from the medical record filed by the respondent, the respondent had been examined at AIIMS, on 07.07.2005 and had been diagnosed as having malignancy of tonsils.
8. According to the appellant it is a well known fact that the disease of cancer develops slowly and can manifest suddenly without any prior warning more so amongst people who are regular consumers of alcohol and tobacco.
9. According to the appellant the respondent had all possible life style factors namely chronic alcoholism with daily in take of 120 ml for the last 30 years as well as chronic smoking with daily in take of one packet of cigarettes per day for the last 30 years and since both of these are potential caraniogens and can cause development of malignancy in oral cavity, respiratory symptoms and gastro intestinal symptoms at any given time, in the case of the respondent, malignancy has apparently got manifested during the intervening period that is from the day respondent stopped following up with the appellant hospital and the subsequent date when the respondent had consulted the doctors in AIIMS, Delhi. That whole treatment provided by the doctors of appellant hospital has been as per the standard practice and procedure. There was no deficiency in service and medical negligence on its part.
10. Counsel for the appellant has mainly dwelt on the report of Dr. Gulati, who was a very senior and competent pathologist, showing no evidence of malignancy following which respondent was advised surgical removal of affected salivary gland to relieve him of the constant pain and swelling an further that the malignancy had apparently got manifested during intervening period i.e. from the date the respondent stopped following up with the appellant hospital and the subsequent date when he had consulted doctors in AIIMS, Delhi.
11. In support of his contention that the malignancy had developed during the aforesaid period of 2 to 3 months, the counsel for the appellant has relied upon medical literature of Robbins Pathological Basis of Disease, contributed by three prominent doctors of pathology, which is to the following effect:
In general, the growth rate of tumors correlates with their level of differentiation, and thus most malignant tumors grow more rapidly than do benign lesions. There is however a wide range of behaviour. Some malignant tumour grow slowly for years then suddenly increase in size virtually under observation, explosively disseminating to cause death within a few months of discovery. It is believed that such behaviour results from the emergence of an aggressive subclone of transformed cells. At the other extreme are those that grow more slowly than benign tumors and may even enter periods of dormancy lasting for years. On occasions, cancers have been observed to decrease in size and even spontaneously disappear, but the handful of miracles fills only a small volume. To examine this variable behaviour more closely, we consider what is known about the life history of cancer, including the cell kinetics of cancer growth and the influence that modify the growth of malignant tumors, in a later section.
12.
In support thereto the counsel for the appellant has also taken refuge under the history of the respondent who according to him was taking alcohol and also smoking which accelerated the pace of carcinomas of the orophyarynx, larynx and esophagus (excluding lip). The reference from the aforesaid book in this regard, relied upon by the counsel is to the following effect: -
Alcohol abuse alone increases the risk of carcinomas of the oropharynx (excluding lip), larynx and esophagus and through the intermediation of alcoholic cirrhosis, carcinoma of the liver. Smoking particularly of cigarettes, has been implicated in cancer of the mouth, pharynx, larynx, esophagus, pancreas, and bladder but most significantly is responsible for about 77% of lung cancer among men and 43% among women. (Chapter 10). Cigarette smoking has been called the single most important environmental factor contributing to premature death in the United States. Alcohol and tobacco together multiply the danger of incurring cancers in the upper aerodigestive tract. The risk of cervical cancer is linked to age at the first intercourse and the number of sex partners. These associations point to a possible casual role of venereal transmission of cervical viral infections. It begins to appear that everything one does to gain a livelihood or for pleasure is fattening, immoral, illegal or even worse, oncogenic.
13.
Over and above, the counsel has also questioned the expenses incurred by the respondent to the tune of Rs.1,60,000/- at Rajiv Gandhi Cancer Institute, as no bills or documents have been produced by the respondent nor any receipt were produced by the respondent.
14. After closely perusing the aforesaid literature on the rate of growth of benign tumor of lesions as well as accelerated growth due to alcohol abuse and smoking, we do not find ourselves in agreement with the contentions of the counsel for the appellant that the malignancy arose during the short duration of 2 to 3 months i.e. when respondent stopped following up the appellant and subsequent to the date when he went to AIIMS, Delhi.
15. It is common knowledge that malignancy tumor grows slowly for years and if not kept under observation for long then suddenly increases and may result in death within few months of discovery. Similarly the alcohol abuse as well as smoking would not have been the reason for sudden development or growth of malignancy during short period of 2 to 3 months. Had there been such a high growth of malignancy, which was developed within two months due to alcohol and smoking, the same would have been observed and easily detected by any doctor. Because the appellant is blowing the alcohol abuse and smoking of the respondent so much out of proportion that it had given the history that the respondent has been taking alcoholic for the last 30 years and has been smoking heavily.
16. So far as the report of Dr.Gulati is concerned that again cannot come to the rescue of the appellant as it was for the appellant to re-assure from some other source and should not have relied upon the source of its own choice when it was in its full knowledge that they were treating a patient who is a victim of so much alcohol abuse and smoking that he had been having it for 30 years. The respondent presumably went to the hospital only with the complaint of nasal blockage and on clinical examination it was found to be having deviated nasal septum to the right side for which surgical correction was advised to relieve him from the nasal obstruction. He did not at that time complain of any of the problems particularly the problem related to throat/tonsils. He was discharged on the next day after being operated under local anaesthesia.
17. After period of about two months he again presented himself before the appellant with complaint of pain in throat and swelling. It was at this stage that requisite tests were performed by Dr. Gulati on whose report surgical removal of effect salivary gland was advised. He continued following up till 02.05.2005 and was examined on 07.07.2005 at AIIMS. It was to his shock when he came to know from AIIMS, Delhi about the malignancy of tonsils.
18. It is beyond our comprehension that the person could have developed such malignancy of tonsils within short duration of two months. If the first operation of the nose was done after pathological tests where was the need of second operation of the throat? He was admitted in the hospital with complaint of throat pain but the appellant operated him for the nose and when he again approached he was operated for throat.
19. 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)
20. 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.
21. 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.
22. 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.
23. 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)).
24. 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?
25. As is apparent, the deficiency in service by service provider like hospital is of varied kinds. 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. Similarly, there is medical negligence on the part of the doctor who undertakes the treatment of a patient for a disease which he is not competent to deal with or does a thing which he is not required to do and does not do a thing which he is required to do.
However, the definition of deficiency provided by Sec. 2(1)(g) of the Consumer Protection Act, 1986 is so wide that it also takes in its fold the administrative deficiencies of the hospital.
26. For instance, not 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.
27. Taking overall view of the matter and examining the rival claims of the parties and after scanning the record, we find that the appellant hospital was guilty for medical negligence first in not subjecting the respondent to second test and blindly relying upon the report of Dr. Gulati particularly in view of the past history of alcoholism and smoking and secondly again not treating the respondent for the disease he was actually suffering from and thirdly in taking a very cavalier and casual approach that the respondent developed malignancy tumor within two months whereas it takes year or so to develop malignancy.
28. In our view if any hospital or nursing home relies upon the pathology test from a particular laboratory of its choice it also becomes its duty to ensure that the report given by such laboratory is correct and in such cases it cannot be absolved the from contributory negligence for not ensuring by way of second test particularly in view of past history of patient about alcohol abuse for decades coupled with abuse of smoking as it is common knowledge that these two vices increases the risk of carcinomas of the oropharynx, larynx and esophagus.
29. However, the plea of the appellant that the respondent did not produce any documentary evidence for the expenses incurred by him at Rajiv Gandhi Cancer Institute is again self defeating. The disease was of such a nature that at private hospital expenses of Rs.1,60,000/- is nothing. Even if a consumer does not produce any documentary evidence in the form of the expenses incurred by him towards treatment received by him at different hospital still the delinquent hospital will compensate and the compensation or damages are to be assessed independently and had to be commensurate with the mental agony, injury or discomfort, emotional suffering, future life suffering one suffers at the hands of doctors due to negligence.
30. Word compensation for the purpose of compensating a consumer has very wide connotation and takes into its fold varied and multifarious factors such like as referred above. Supreme Court has in Ghaziabad Development Authority Vs Balbir Singh provided wide connotation to the word Compensation appearing in section 14(i)(d) as referred above 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.
30. In our view the District Forum was very conservative in awarding paltry sum of Rs.1,00,000/-. However, we do not feel inclined to interfere with the finding of fact returned by the District Forum and at the same time feel that the amount towards expenses incurred by the respondent even if not proved can be deemed as compensation as to the mental agony, physical discomfort, future sufferings etc. over and above Rs.1,00,000/- awarded by the District Forum.
31. There is no merit in the appeal and the same is dismissed in limine. Payment shall be made within one month from the date of the receipt of this order.
32. FDR, Bank Guarantee, if any, deposited by the appellant be returned to the appellant forthwith under proper receipt.
33. 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 the Record Room.
34. Copy be sent to President of all the District Forums.
Announced on 08th day of February 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri