National Consumer Disputes Redressal
Dr. (Mrs.) Manika Roy & Anr. vs Dr. B.L. Chitlangra & Ors. on 5 January, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 42 OF 2003 1. DR. (MRS.) MANIKA ROY & ANR. 601-MEGHNAD, T.I.F.R.HOUSING COLONY,
HOMI BHABHA ROAD, COLABA MUMBAI - 400 005 ...........Complainant(s) Versus 1. DR. B.L. CHITLANGRA & ORS. MEDICAL RESEARCH CENTRE BOMBAY HOSPITAL AVE MUMBAI- 400 020 2. Dr. Vikram Agarwal Resident Medical Officer,
Bombay Hospital and Medical Research,
Centre,
Bombay Hospital Ave, Mumbai - 400 020. 3. BOMBAY HOSPITAL AND MEDICAL RESEARCH THE MEDICAL DIRECTOR, CENTRE, BOMBAY HOSPITAL AVE, MUMBAI -400 020. 4. BOMBAY HOSPITAL AND MEDICAL RESEARCH BOMBAY HOSPITAL TRUST, CENTRE, BOMBAY HOSPITAL AVE, MUMBAI - 400 020. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. Divya Jyoti Jaipuriar, Advocate For the Opp.Party : For the opp.parties1,3&4 : Ms. Astha Tyagi, Advocate with
Ms. Seema Sundd, Advocate
For the opposite party No.2 : Mr. Ankit Khurana, Advocate with Mr. Sudhindra Tripathi, Advocate
Dated : 05 Jan 2016 ORDER
DR. S.M. KANTIKAR, MEMBER
Diagnostic assumptions and prior reasoning of others can be carried along, unchallenged when the facts and conclusions of previous assessments are absorbed into subsequent diagnostic reasoning. This cognitive error of 'anchoring' is a common source of emergency department error, and error in medical care more generally. In the emergency department, conclusions and assessments of physicians, nurses, and other paramedics initiate assumptions about both acuity and diagnosis. An initial error can be propagated if not reassessed, leading to delayed recognition of serious disease or even mistaken diagnosis.
1.Ms. Kaberi Roy, 29 years of age, (since deceased, referred herein as a "patient"), daughter of complainants, Dr. Manika Roy and Dr. Durga Prasad Roy, suffered acute abdominal pain on 27.06.2002. The family physician, Dr. Shetty diagnosed it as 'acute appendicitis' and advised her for immediate surgery in any hospital( Exhibit B- prescription slip of Dr. Shetty). The complainant No.1 took her to Bombay Hospital (OP-4) and admitted in semi-private room. It was alleged that the admission of patient was delayed by the authorities of Bombay Hospital about 1½ hours for want of money to be deposited. Her mother was carrying a cheque for Rs.35,000/- which was initially denied but finally she was admitted at 10.30 PM, under Dr. B.L. Chitlangia, OP No.1 and Dr. Vikram Agarwal, OP No.2, the Clinical Assistant of OP-1. The casualty Medical Officer examined her and diagnosed it as a case of acute appendicitis. The OP-2 also examined the patient and confirmed the diagnosis as acute appendicitis. Patient was investigated by routine complete blood count (CBC) and x-ray of chest, abdomen when it was found that there was very high leucocytes count (17700 per cmm). The Neutrophils were 87%. Thus, it was indicative of severity of appendicitis and possibility of perforation, further. There was rapid increase in the abdominal pain during the waiting period of 1½ hours. The OP-2 failed to care for the emergency condition of patient, ignored the vital lab reports and a need for urgent surgery to prevent perforation. Patient was only given pain killer injections and made her to sleep. Thus, it was against the standard medical practice.
2. The OP1 came to examine the patient on next day i.e. 28.06.2002 at 11 AM. i.e. almost after more than twelve hours of her emergency admission. It was duty of senior surgeon to examine the patient immediately during emergency, but unfortunately, she was kept on pain killers for sixteen hours. Finally, at 2:30 P.M., Dr. Chitlangia (OP-1) performed the surgery, noted burst appendix. Surgery lasted for one hour. There was considerable pus and smell. It was alleged that, OP-1 failed to choose proper surgical procedure in the case of severe appendicitis. It was necessary to take a large incision for toileting of abdominal cavity to prevent septicemia and second incision for providing outlet tube to drain out the pus, but in the instant case no drain was kept. The appendix was gangrenous and perforated. It was necessary to drain the pus to avoid further infection, septicemia or fecal peritonitis. Therefore, the OPs also failed to give proper post-operative care. The culture report of pus showed presence of Gram negative bacilli, the OP 1 & 2 failed to take necessary steps to avoid the spread of infection by use of higher antibiotics. For the assessment of infection, OP-2 did not perform CBC after operation. After the operation, patient was straightway shifted to her room, without keeping her in the ICU. The facilities in the OP hospital were inadequate, nursing staff was not cooperative, and no doctor visited the patient. The patient developed generalized drowsiness and delirium since 29.06.2002 afternoon. There was swelling in the lower abdomen and no urine was passed. The patient had shivering after the change of drip in the evening which was followed by perspiration and tremors. The nurse was called, who disconnected the drip. None of the doctors, OP1 or OP2 attended the patient. The patient was complaining about difficulty in throat and nausea at 11.00 A.M, later on patient went to wash basin to vomit, but unable to vomit. She came back to her bed and as soon as her mother gave her little water she collapsed in her arms. After that, the nurse attended the patient, gave a call to doctor, but no doctor or nurse was with the patient, during the critical 20 minutes between removal of drips and her collapse. Thus, it was a sudden death of young patient, without having previous signs of cardiac complaints. The cause of death given by hospital was pulmonary edema, post mortem was conducted. The complainant submitted a case paper; it is marked as Exhibit-C.
3. The complainants stated that the deceased Kaberi, was a young healthy woman. She died within two days of hospitalization, and within 36 hours of her operation. There were several lapses in the treatment and by the attending doctors in the OP hospital. The complainants had gone to a reputed hospital i.e. OP and expected to receive prompt and efficient services from highly skilled doctors. The doctors made willful delay of 17 hours', despite clinical signs, and lab reports, which were indicative of acute emergency. The complainant filed this complaint on the following grounds of negligence that,
i) The OP did not take proper care and precaution which led to death of their daughter,
ii) There was inordinate and unexplainable delay in performing the operation after Kaberi's reporting to the hospital which caused perforation and spread of infection to the peritoneal cavity,
iii) The OP ignored crucial laboratory findings which were diagnostic of acute appendicitis, but unnecessarily administered pain killers without adopting emergency surgery.
iv) It was a case of gangrenous appendicitis, was not managed properly post operatively.
Therefore, complainants commenced this medical negligence action alleging, inter alia, that the OP Bombay Hospital , and the doctors Dr.B.L.Chitalanga and Dr.Vikram Agrawal (hereinafter collectively the Opposite Parties), were negligent in failing to timely diagnose and treat their daughter Kaberi's appendicitis which resulted into her death. It caused personal and financial loss to the complainants. Therefore, the parents (complainants) filed this complaint and claimed compensation of Rs.56,31,083/-.
Defense:
4. Dr. B.L. Chitlangia (OP1) filed written version and affidavit. The General Manager filed reply and affidavit on behalf of OP-3 and 4. The OP-1 objected about the jurisdiction of consumer fora because this complaint involves complicated issue of factual, expert, medical and legal nature which cannot be decided in a summary and speedy proceedings. He further submitted that, the complainants deliberately suppressed material facts as past medical history of taking antidepressants. He is a qualified and experienced surgeon. He operated the patient with high degree of professional skill and knowledge. It was as per standard and by reasonably competent surgeon. The OPs denied that there was any delay of 1½ hours in admitting the patient who was brought on 27-06-2002 around 9:30 P.M.. The OP-2, Dr. Vikram Agarwal, RMO and Dr. Nazim Parker, a senior resident in casualty, attended the patient, recorded the relevant past history. As the patient was a young female and there could be several other reasons for pain in stomach, it was decided to carry out investigations before starting the treatment. Thereafter, patient was immediately taken to X-ray department accompanied by Dr. Nazir and in the meanwhile, arrangement in the ward was made for shifting of patient. The wet X-ray film was examined by Dr. Nazir, which did not indicate any abnormality and same was conveyed telephonically to Dr. Chitlangia (OP-1). The patient was brought to the room at 11.10pm and was put on the conservative line of treatment for symptomatic relief by IV fluid, antibiotic therapy and mild analgesics. The patient was regularly monitored by the nurses. Dr. Vikram Aggarwal was also there to ensure collection of blood samples and to initiate medical therapy. Therefore, OP-1 submitted that from around 10.30 PM on 27.06.2002, untill 11 AM on 28.06.2002, the patient was being actively monitored, managed and treated under his direct care, management and advise. The clinical examination did not warrant any immediate surgery. The patient comfortably slept during the night.
5. In the next morning, Dr. Nazim examined the patient who was comfortable, afebrile and stable. Therefore, she was sent for sonography at 9 AM, there was no Paralytic ileus. OP-1 examined the patient at 11 AM, saw all the reports and confirmed it as acute appendicitis, hence, planned for appendectomy at around 2.00pm on the same day. Appendectomy was carried out by OP-1, with the assistance of Dr. Jadliwala and Dr. Nazim. The appendix was severely inflamed, turgid and muddy in appearance. Sterile swab culture was taken from opalscent fluid/ purulent material for culture sensitivity. There was no sign of ascitis or generalised peritonitis. Post operatively, patient was hemodynamically stable, well oriented till 9.15pm. She was advised to take a sip of water and mobilization. She slept well. She was regularly monitored for all other parameters by the nurses. On 29.06.2002, at about 11.10pm, the complainant no. 1 informed the nurses that the patient was getting unstable. Immediately, Dr. Vikram Aggarwal, RMO of Unit-1, attended the patient, who found that the patient was showing signs of CRA (Cardio Respiratory Arrest). Immediately CPR was initiated. The ICU Registrar was called. The patient was intimated, however, she could not be revived. In the meanwhile, OP-1 also reached the room. After a discussion with the relatives, body was taken for post-mortem.
6. In the support of OPs, affidavits of Dr. Mannan K. Jadiwala, the experts Dr.Sanjay C.Wagle, Dr.Lalit Kapoor (RW1) and the Forensic Expert Dr. Ajay V. Patil, were filed. Both the parties filed interrogatories and their respective replies.
Arguments:
On behalf of complainants:
7. The learned counsel for complainants reiterated the facts in the complaint, denied about concealment of past history of taking antidepressant drugs. He further submitted that, due to delay in diagnosis and treatment of acute appendicitis, there was gangrenous appendicular perforation. The OP failed to put a drain after surgery for removal of pus, it could have prevented septicemia. Therefore, the OPs failed in the duty of care. Therefore, the complainants alleged total medical negligence on the part of the OPs. The act of OP was against the Code of Ethics Regulations of MCI, which clearly specifies duties of physicians to their patients in Chapter II.
8. The counsel for complainant brought our attention toward the expert opinion, given by Senior Surgeon (30 years' experience), Dr. Prafulla Kumar Mohapatra, Ex-Professor of Post Graduate Department of Surgery, SCB Medical College & Hospital, Cuttack. As per his opinion, there was delay in carrying out the operation of appendicitis, which resulted in bursting of appendix leading to peritonitis and pus in the pelvic cavity. It led to Gram negative septicemic shock; and it progressed to pulmonary edema. As per standard textbooks on surgery, it is mentioned that a diagnosed case of acute appendicitis should undergo appendectomy, without delay. It was necessary to prevent increased morbidity and mortality due to peritonitis. He also opined that there was no mention about drainage of abdominal cavity in the OT records. It was necessary to insert a soft silastic drain in the retro-caecal space and pelvis to drain purulent fluid. Thus, it was a duty of the operating surgeon to give a drain, since there was infected fluid and pus in the pelvis due to burst abdomen. Further, he opined that the better choice of antibiotic was third generation Cephalosporin and Aminoglycoside to which organism was sensitive. The expert also stated that the patient should have been put in ICU for close monitoring. This could have helped in taking prompt appropriate measure which could have saved her life.
9. As per another expert opinion of Prof. Kalke, there was "alarming" fluid input - output imbalance of 3400 ml - 500 ml to overload her with excessive fluid along with excessive Potassium through Kesol injections. There was no electrolyte monitoring done by OP. The medical record showed a marked reduction in the urine output, but injection 'Kesol' was given, without estimating electrolyte levels. The Hyperkalemia is known to trigger sudden cardiac-respiratory arrest in such cases of sepsis with Pulmonary edema.
10. The counsel for complainant produced references from standard "Text Book of Surgery" by Sabiston, "Principles of Surgery" by Schwartz and "Short Practice of Surgery" by Baily and Love, Farguharson's Textbook of Operative Surgery, New Aird's Companion as Surgical Studies. The Counsel for complainant relied upon case T.T. Thomas vs. Elisa, AIR (1987) Kerala 52 whereas, similar delay in appendectomy had lead to the death of the patient. The Court held that "failure to perform emergency operation and death due to failure amounts to negligence on the part of surgeon". Therefore, we hold OPs responsible for delay and for post-surgical deficient care. The counsel also relied upon Bombay Hospital and Research Centre vs. Sharifabai Ismail Syed & Ors. - I (2008) CPJ 432 (NC). For the quantum of compensation he relied upon the decision of Hon'ble Supreme Court in Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee & Ors - SCC(2009)221.
On behalf of Opposite Parties:
11. The counsel for OP-1 submitted that mere clinical evaluation and examination of patient with the finding "tenderness of Mc-burney's point along with guarding and rigidity" is not conclusive of acute appendicitis as the same is also found in female persons, akin to the patient, in many conditions some of which are (i) Salpingitis, (ii) Ruptured ectopic pregnancy, (iii) Ruptured follicular cysts, (iv) Entrocolitis, (v) Meckel's diverticulitis.
12. He further submitted that diagnosis of acute appendectomy is a clinical one. The WBC count itself is not an indicator for acute infection. The ALVARDO score is the most widely used clinical prediction tool to facilitate decision-making in patients with acute appendicitis. In the present case, it was "4" at the time of admission was 4. As per medical text, in patients with equivocal score 5-6, abdominal ultrasound or contrast enhanced CT examination, further reduces the rate of negative appendectomy. Abdominal ultrasound is highly indicated if gynecological pathology is suspected. As per USG done in the morning of 28.06.2002, there was no paralytic ilieus or any sign of emergency. Therefore, immediate surgery was not decided. When peritonitis is suspected, conservative treatment would benefit preoperatively.
13. The fluid intake and output was properly managed. The OP-1 visited after completing the set of investigations on 28.06.2002 at 11 AM, and took a conclusive decision to post the patient for planned appendectomy at 2 PM. It was denied that patient had any kind of electrolyte imbalance, because there was no muscle spasm, weakness, twitching, confusion, lethargy, blood pressure changes, irregular heartbeats, nervous system disorder, convulsions or seizures. The medical records are chronologically maintained. Even the post-mortem report does not reflect generalized peritonitis or ascites. Therefore, there was no negligence from any opposite party doctors; they had performed their professional duties with utmost care and responsibilities. An intravenous fluid is sufficient to establish adequate urine output and appropriate antibiotics reduces the instance of post operative infection. As per medical texts, with appropriate use of intravenous fluids and parental antibiotics, the appendectomy surgery can be deferred from midnight to morning, it does not increase morbidity. Hence, in the instant case, the conservative line of treatment was followed, as per the prevailing medical science.
14. The counsel for OP brought our attention to the evidence given by an expert Dr. Lalit M. Kapoor. It explained about few medical terminologies like, sign, symptom, diagnosis, differential diagnosis and manifestation. Acute pain in abdomen is only a symptom and doctor will diagnose clinically, which is not always accurate. It was a provisional or working diagnosis. Therefore, chemical, radiological investigations are required to be carried out. It is only in the eminent life threatening conditions, that one may take therapeutic action on clinical grounds. Differential diagnosis is of special importance in the abdominal symptoms, because the abdomen contains a multitude of organs and it is easy to confuse between the different pathologies. The abdomen is commonly referred as a "Pandora's box".
15. The counsel for OP-1 further argued that there was history of patient taking drugs 'Clozapine' and 'Propranolol' for refractory schizophrenia. It is evident from affidavit of Dr. Sanjay Wagle. As per medical literature 'Propranolol', can cause severe depression and leads to suicidal behavior. It can result in severe bradycardia, bronchospasm and pulmonary edema. Sudden collapse of the patient is not concerned with diagnosis of septicaemia. Septicaemia would never give rise to sudden death. It is more likely to be cardiac or thromboembolic event. Antipsychotic drugs could also be contributing to sudden death. Such drug shall increase rate of cardiac arrest and ventricular arrhythmia. Therefore, the acute terminal event is not related to surgery. The counsel denied that the opinion rendered by Dr. B. R. Kalke is not sustainable, because it was given on the basis of case papers and Dr. Kalke is not competent to opine. Even the family doctor, Dr. Shetty's certificate indicates an acute appendicitis of the patient and advise of hospitalization was a provisional diagnosis. Also, there was no evidence of acute renal failure as alleged, either on gross or histopathological examination to kidney. There were no signs of fluid overload. He also opined that pulmonary oedema mentioned in the cause of death is more likely to be terminal event, which occurs in almost all deaths.
16. The counsel for OP brought our attention to the Maharashtra Medical Council (MMC) report dated 01.10.2015 that the complaint before Maharashtra Medical Council was dismissed. Also, he brought a letter of appreciation wrote by Tata Institute of Fundamental Research (TIFR), Mumbai to Dr. B.L. Chitlangia about the free services extended to patients coming from TIFR.
The counsel for OP relied upon the following judgments:
1. Jacob Mathew Vs. State of Punjab (2005) 6 SCC1
2. Mrs. Ins Malhotra Vs. Dr. A. Kriplani & Ors. (2009)4 SCC 705
3. Dr. C.P. Sreekumar Vs. S. Ramanujam (2009)7 SCC 130
4. Dr. Ramesh Chandra Aggarwal Vs. Regency Hospital Ltd. & Ors.
(2009)9 SCC 709
5. Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre (2010)3SCC 480.
Reasoning and Conclusion:
17. Perusal of Operation record, the OP-1 mentioned findings as
i) Infected fluid (+) in RIF (Pus)
ii) Gangrenous perforated appendix.
iii) Pus (+) in pelvis ....x.x... Fluid sucked out, wash given and fluid sucked
The above findings are contrary to the statements made by OP-1 and other witnesses that the fluid was removed by swabbing, with gauze and was sent for culture and sensitivity. As per the reports of c/s, proper antibiotic therapy was initiated. Nothing was mentioned in the OT findings. As per medical text, it is also advised to leave the wound open or provide a drainage pipe for the escape of pus from the residual infection. As per the OT record, no drainage tube was kept, despite knowing that infected fluid was present in RIF, it was gangrenous perforated appendicitis.
As per medical literature, Sepsis in the surgical patient continues to be a common and potentially lethal problem. Early control of the septic source is mandatory and can be achieved operatively and non operatively. Nonoperative interventions include percutaneous abscess drainage, as well as percutaneous and endoscopic stent placements. Operative management addresses the need to control the infectious source and to purge bacteria and toxins. The type and extent of surgery depends on the underlying disease process and the severity of intra-abdominal infection. Thus, early detection of severe sepsis and prompt, aggressive treatment of the underlying organ dysfunction is an essential component of improving patient outcome. If untreated, sepsis dysfunction can lead to global tissue hypoxia, direct tissue damage, and ultimately septicemic shock to multiple organ failure.
18. To establish the liability of a doctor for medical negligence, the complainant must prove that the doctor deviated or departed from accepted standards of practice, and that such departure was a proximate cause of the patient's injuries.
In the instant case, the OPs tried their prima facie entitlement to judgment, as a matter of law, through expert evidence from Dr.Lalit Kapoor, Dr.Wagle and Dr.Ajay Patil that, they did not depart from good and accepted medical practice and that, in any event, the patient was not injured by any such departure. In opposition, the complainants raised issues of fact by submitting the affidavits of medical experts, Dr. P.K. Mahapatra and Dr. Kalke, who opined, inter alia, that surgical intervention, which should have been provided on an emergent basis, was delayed as a result of OP-1's departures from good and accepted medical practice, and that the delay was a proximate cause of, and/or substantial contributing factor to, the patients injuries. OP-1 failed to complete a thorough clinical examination of the patient, in ignoring several signs and/or symptoms of an acute or perforated appendix, and in failing to conduct additional and/or different tests like USG/CT to diagnose the true nature of the patient's condition. Therefore, we are of considered view that, the departures of the OPs individually and together in the treatment and diagnosis of the patient led to a delay in the patient's surgery, and were a proximate cause or substantial cause contributing to the speticemic shock and death. We are not impressed by the MMC report and TIFR letter of appreciation (para 15 supra).
19. As per medical literature, the diagnosing appendicitis can be tricky. Although, acute appendicitis is the most common abdominal surgical emergency, yet the diagnosis can be extremely difficult, at times. There are a number of common conditions that it is wise to consider carefully and, if possible, exclude. The differential diagnosis differs in patients of different ages; in women, additional differential diagnosis are diseases of the female genital tract. The symptoms are often vague or extremely similar to other ailments, including gall bladder problems, bladder or urinary tract infections, Crohns disease, gastritis, intestinal infection and ovary problems. A careful gynaecological history should be taken in all women with suspected appendicitis, concentrating on menstrual cycle, vaginal discharge and possible pregnancy. The most common diagnostic mimics are pelvic inflammatory disease (PID), Mittelschmerz, torsion or haemorrhage of an ovarian cyst and ectopic pregnancy. Torsion/ haemorrhage of an ovarian cyst, it is stated, can prove a difficult differential diagnosis, and, when suspected, pelvic ultrasound and a gynaecological opinion should be sought.(Bailey and Love, Short Practice of Surgery)
20. On a balance of probabilities, was the delayed operation in the instant case, cause of death?
Family physicians play a valuable role in the early diagnosis and management of such condition. However, the overall 80% diagnostic accuracy achieved by traditional history, physical examination, and laboratory tests. If the diagnosis of acute appendicitis is clear from the history and physical examination, prompt surgical referral is warranted, ultrasonography is safe and readily available, with accuracy rates. The doctor should be aware of the symptoms of appendicitis and the dangers of a delay in treatment. Prompt surgical treatment may reduce the risk of appendix perforation; otherwise, a patient's condition will deteriorate, very quickly. The fatality rate of appendicitis increases to more than 5% when perforation occurs.
In the instant case, family physician, Dr. Sainath Shetty referred the patient to a higher centre-Bombay Hospital at 9.30 PM. She was operated after more than 17 hours of her emergency admission.
21. At this juncture, we took reference from the judgment of Hon'ble Supreme Court in Dr. Laxman Balakrishna Joshi Vs Dr. Trimbak Bapu Godbole AIR 1969 SC 128, which laid down that a doctor when consulted by a patient, owes him certain duties, namely,
(a) a duty of care in deciding whether to undertake the case;
(b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.
The principles were reiterated in A.S. Mittal Vs. State of U.P. AIR 1989 SC 1570, in which wide extracts from that judgment were made and approved.
22. In Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors. (AIR 2010 SC 1050/2010 (3) SCC 480), the Apex Court took note of various decisions and in para 48, it was stated as follows:
According to Halsbury's Laws of England Ed.4 Vol.26 pages 17-18, the definition of Negligence is as under:-
"22. Negligence: Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."
It was further observed that,
50. In Whitehouse v. Jordon House of Lord Edmund-Davies, Lord Fraser and Lord Russell (WLR p.258 B & D):
"The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon (dictum of McNair Jo. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 at 121).
23. In Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332, where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under
"42. Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence per se."
24. Therefore, in the instant case, in our view, the OP-1 owed certain duty towards the patient, which he had failed. On perusal of medical record, the diagnosis of Dr. Sainath Shetty was 'acute Appendicitis', he advised the patient to go to a higher centre for surgery. Patient was admitted on 27.06.2002 at 10:30 pm in OP hospital. On admission, it was clinically diagnosed as a case of 'Acute Appendicitis'. The Laboratory investigation revealed the total WBC account was 17,700/cmm, 87% of Neutrophils. The 17 hours' period between emergency admission and surgery suggested by OP-1, was "optimistic", particularly, because the Sonography Department was on 2nd floor, whereas, patient was on 9th floor; there were large number of cases referred for USG who were in queue. But, in this case, the patient was admitted in late night, thus emergency USG scan should have been sought on an urgent basis to rule out the causes of acute abdomen. The OP hospital is one of tertiary care hospital and the highest care is expected than from other hospitals. Had the USG scan been obtained and interpreted promptly, these complications might have been avoided. If that had happened, patient could have been operated expeditiously as an emergency basis. The patients approached the hi-tech hospitals with the expectation of treatment and consultation from the experts and best doctors. Even acute appendicitis, without any complications, needs immediate medical attention. It should be considered as a 'medical emergency', as complications can arise suddenly and the patient's health may decline rapidly. The standard treatment for acute appendicitis is appendectomy, but in isolated environments, where there are no surgical capabilities, medical management is required, until surgical resources become available, whereas, it was not so in this case. It was the duty of OP-1 to attend the patient during emergency hours. Thus, if the OP-1 had not breached its duty of care to the patient, the pain and discomfort that she experienced prior to the operation would have been shortened by several hours, thus it was negligence, which became fatal. However, she was not reviewed by a consultant surgeon (OP-1) at emergency hours, he assessed her in the next morning and decided for surgery at 2 pm. She had persistent RIF tenderness and looked unwell. That afternoon, OP-1 had her appendix removed, although it became apparent that the organ had perforated, sometime before the procedure was carried out.
25. Thus, we are of considered view that, an appropriate standard of care had not been met as surgery took place after 17 hours'. The core issue was, whether, the doctors OP-1 and others, breached their duty of care towards the patient by failing to provide an adequate system for the diagnosis and treatment? The OPs failed to foresee the risk of a patient with acute appendicitis, having a ruptured appendix was at least 1%, and probably nearer to 3%. Thus, "A one percent risk of serious harm is not inconsequential,"
For example, "suppose that an aeroplane on a long-haul flight developed engine trouble while in mid-air, this gave rise to a one percent risk that the plane would crash and that risk would not increase for the next 12 hours but remain constant".
"A reasonable pilot, knowing this, would not wait for 12 hours to expire but would land his plane as soon as reasonably practicable."
26. The operative diagnosis was gangrenous appendicitis with perforation. The final histopathological diagnosis was "acute necrotizing perforative appendicitis with peritonitis". Subsequently, patient died on 29.06.2002 at 11:30 pm, due to cardio-respiratory arrest. It is pertinent to note that, medical record revealed that, on 29.06.2002, patient was administered IV drip of 5% dextrose, along with 10 ml of Kesol, twice. There was no proper monitoring of electrolyte levels, and fluid intake- output also. Therefore, hyperkalamia would also precipitate cardiac arrest.
27. Regarding award of compensation, the complainants have prayed for Rs.56,31,083/- as compensation on the basis of personal loss and financial loss. It was stated by the complainant No.2 that the loss was due to cancellation of foreign assignments by himself and his another daughter, Kalyani Roy, totalling about Rs.36,00,000/- and Rs.20,00,000/- towards mental trauma.
28. In this context, we rely upon several judgments of Hon'ble Supreme Court like Reshma Kumar and Ors. Vs. Madan Mohan and Anr. (2009) 13 SCC 422, Nizams Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors. (2009) 6 SCC 1 and the recent judgment in Balram Prasad Vs. Kunal Shah and Ors. (2014) 1 SCC 384. The Hon'ble Supreme Court has emphasised that it is the duty of Tribunals, Commissions and Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation.
29. In the instant case, we have noted that the cost of treatment incurred at Bombay Hospital is approximately Rs.31,083/-. There are no details about profession or earnings of the deceased, Kaberi. She was doing Bachelor Degree in Library & Information Science, under IGNOU. She was the eldest daughter of the complainants and she was looking after the household responsibility only. In the instant case, Ms. Kaberi was a victim of medical negligence. She lost her life. Kaberi died at the age of 30 years, therefore, considering her life expectancy and future prospects, we are of the considered view that, Rs.25,00,000/- will be just and proper compensation. No doubt, we cannot award compensation for the loss of income of complainant No.2 and another daughter, Kalyani, but the mental agony sustained by the family members is really a concern in this case. Therefore, we award a further sum of Rs.15,00,000/- towards mental agony to the complainants.
Therefore, on the basis of the foregoing discussion, we direct the Bombay Hospital to pay a total amount of Rs.40,00,000/- to the complainants, with interest at the rate of 6% per annum, from the date of filing of this complaint, within 90 days' from the date of receipt of copy of this order, otherwise, it will carry further interest at the rate of 12% per annum, till its realisation.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER