State Consumer Disputes Redressal Commission
Shamshar Khan vs The Heart Center & Ors. on 28 October, 2021
IN THE STATE COMMISSION: DELHI (Constituted under section 9 of the Consumer Protection Act, 1986) Date of Hearing:07.10.2021 Date of Decision:28.10.2021 FIRST APPEAL NO. 745/2013 IN THE MATTER OF MR. SHAMSHER KHAN S/o Sh. Roshan Khan, Additional District Judge, B-17, Officers Colony, Circuit House Kanpur Nagar, Kanpur ....Appellant VERSUS THE HEART CENTER 2 Ring road, Lajpat nagar, New Delhi Through Dr. M. Khalilullah, Cardiologist DR. M. KHALILULLAH, CARDIOLOGIST The Heart Center 2 Ring road, Lajpat nagar, New Delhi DR. S.K. KHANNA, CARDIAC SURGEON The Heart Center 2 Ring road, Lajpat nagar, New Delhi METRO HOSPITAL, NOIDA Gautam Budh Nagar Through director Dr. P. Lal ...Respondent 1 HON'BLE SMT. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HON'BLE SH. ANIL SRIVASTAVA, MEMBER 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes Present: None for the appellant Sh. S.P. Singh, Counsel for the respondents PER: ANIL SRIVASTAVA, MEMBER JUDGEMENT
1. The order dated 28.03.2013 passed by the Consumer Disputes Redressal Forum - II, New Delhi in the matter of Sh. Shamsher Khan versus The Heart Centre, Delhi and ors in CC-487/2011, dismissing the complaint holding that there was no negligence done by the doctors treating the complainant, has been assailed before this Commission under Section 15 of the Consumer Protection Act 1986, the Act, alleging that the impugned order has been passed against the principles of law laid down and praying for setting aside the order and for the relief claimed before the District Forum. The complaint was originally filed before the District Forum, Gautam Budh Nagar, Noida but later by the orders passed by the Hon'ble NCDRC this complaint stood transferred to the District Forum in Delhi. Mr. Sharmsher Khan and the Heart Centre would hereinafter referred to as appellant and respondent no. 1 Dr. M. Khalilullah and Dr. S.K. Khanna would be referred to as respondents no. 2 and 3 respectively. Metro Hospital would be referred as respondent no. 4.
2. Facts of the case necessary for the adjudication of the appeal are these. 2
3. The complainant for the investigation/treatment of his 'Heart Palpitation', visited the respondent no. 1 on 21.03.2004 and on the advice of respondent no. 2 got certain tests like ECG, Echo, X-ray, Chest P.A., Blood Check, Holter, E.P.S & CAG etc, done. Based on the reports need for pacemaker was found as not required. However later respondent no. 2 felt that the implantation of Pacemaker is called for. A sum of Rs. 1,75,000/- was estimated which the complainant agreed to pay. On 25.03.2004 respondent no. 3 implanted a Pacemaker to the complainant but the complainant alleged that after implantation of the Pacemaker, he had no relief from the pain, rather it aggravated. However, the complainant was discharged from the hospital, on 28.03.2004. Having no relief from the pain, he consulted. Dr. R. Chandra of AIIMS; Dr. Nakul Sinha of Sanjay Gandhi Institute; Dr. Parveer of NMC Escort of Noida; Dr. Anil Sazena of Escort Hospital, New Delhi and Dr. Trahan etc. and according to him they all were of the opinion that the Pacemaker was not required to be implanted since heart was working 100% but no such opinion is however on record. However considering, the opinion of the above mentioned experts, the complainant got the pacemaker removed from the Metro Hospital, Noida whereafter all the problems like burning sensation in his chest, pricking sensation, pressure in neck and nerves were subsides and the Heart Palpitation reduced.
4. The complainant has alleged that doing the implantation of the pacemaker when it was not required amounts to negligence and such act on the part of the OPs amounts to deficiency in service and indulging in unfair trade practice. Secondly, the complainant suspects whether the pacemaker was US made, as claimed.
5. The respondent had contested the complaint with stand as indicated below:- 3
The OPs contested the claim of the complainant by filing their separate written statement. As per OP-2 and 3, the Holter Monitoring revealed intermittent fast and irregular beatings, called as atrial fibrillation and intermittent slow heart beat with heart stoppages upto 3 seconds and the heart rate dropping below 35 per minute. The complainant was diagnosed as a case of 'Tachy Brady Syndrome', meaning there both slow and fast and irregular heart beating, in such case if the medication for treating fast and irregular heartbeat, is given the slow heart rate becomes further slow increasing giddiness and syncopes. If further drugs are given, to increase slow heart beat, his fast and also prone to develop clots in the heart during irregular beating which can travel to the brain and cause brain stroke. So, the patient was advised to have a dual chamber pacemaker implanted to treat his slow heartbeat and to get drug was advised to have a dual chamber Pacemaker implanted to treat his slow heart beat and to get drug known as 'Amiodrone' to treat his irregular and fast heart beatings. They admitted that the entire tests were conducted and the original documents were with the investigating officer of the criminal case. However, the complainant was unable to arrange the funds in September, 2003, so he again visited the Heart Centre on 21.03.2004 with the history of giddiness, Palpitation, syncopal attacks. He was admitted in emergency and further investigations were carried out in order to ascertain that there was no other heart ailment from which the complainant was suffering apart from the rhythm disorder. The coronary Angiography was conducted on 22.09.04, but no blockage was found. However, the complainant was suffering from 'Tachybrady Syndrome' therefore, OP-2 again advised him for implant of Pacemaker. Keeping in view the tests and particularly 'Holter monitoring findings' done on 28.09.2003, the best treatment as to implant a dual chamber pacemaker and to take the medicine viz 'Amiodrone' to prevent any clot formation and embolization to the brain. The complainant after having careful consideration and understanding the pros and cone gave his well informed written consent for it.
6. The District Forum based on the material available passed orders dismissing the complaint no negligence having been established. This led to filing of appeal alleging that the order so passed is arbitrary and not based on merit. Respondents were noticed and in response thereto respondents no. 1 to 3 have filed the reply resisting the appeal 4 both on technical ground and on merit stating that the appeal is not maintainable since based on non-existing facts. Secondly, the appellant has not appreciated the findings recorded by the District Forum. The District Forum meticulously examined all evidence and materials filed by the both the parties on record and on the basis of the pleadings and evidence framed the issues as reflected in para no. 9 of the impugned order and thereafter considered the same in accordance with law and arrived at the conclusion that the documents filed by the complainant himself would show that the complainant was having the history of 'Sincopal' attacks. The findings of the Hon'ble District Forum as recorded in para no. 10 of the impugned judgment are sufficient to show the complete reasonableness in the impugned order.
7. The appeal was listed before this Commission for final hearing on 07.10.2021 when no appearance was made on behalf of the appellant. The respondents however appeared and advanced their arguments praying for dismissal of the appeal no infirmity or illegality having been found or proved in the impugned orders. Infact the appellant made no appearance on 15.03.2021, 30.07.2021, 15.09.2021 and 07.10.2021. We have perused the records of the case and considered the rival contentions involved in the case.
8. Short question for adjudication in this appeal is whether the allegation of negligence, deficiency and unfair trade practice as against the respondents as alleged by the appellant established. This leads to another question as to what constitutes medical negligence.
9. Medical negligence is a complicated subject and the liability of a doctor depends upon the facts and circumstances brought on record. There may be cases of apparent 5 deficiency/negligence in service by the doctors. Such cases of negligence can be broadly categorised as under:
a. The doctor does not give immediate treatment when required. b. The doctor does not take precaution as per the medical jurisprudence of giving the test dose of medicines which are likely to be fatal in some cases or may cause allergy. c. The post-operative treatment is not given properly. d. The surgical wound is caused at a different place than required. e. After operation, septicaemia or gangrene takes place. f. Improper prescription of drugs. In case of fever, without knowing the cause of fever, combination of tablets and injections for malaria, typhoid, etc are freely used on trial and error basis. g. Medical instruments are left in the body.
h. Mal-practice by the doctors, such as uncalled for pathological reports or investigations prescribed.
10. Further, there may be allegations that in some cases where the surgery is not required, but the same is carried out, there is no pre-anaesthetic chek-up; delay in performing surgeries, there are certain instances of death on table; there are cases of hospital acquired infection which are not known to the consumers; some of the emergency cases not dealt with by the doctors promptly; transfusing wrong blood; performing a criminal abortion. In such cases, medical negligence being apparent medical practitioners would be liable to pay compensation or damages to the victim. Finally, what is expected from the medical practitioner is to take due care and caution while giving treatment as per the established medical jurisprudence. In other words, if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art, no question of deficiency would arise.
11. It is trite law that in the matter of negligence as is the case, the only point of consideration would be to examine if the treating doctor was sufficiently qualified to 6 administer the treatment and, secondly, when the doctor was sufficiently competent whether while administering the treatment he has observed due and necessary and precaution and thirdly whether timely steps for treating the patient were taken. On these accounts the OP Hospital, keeping in view the facts and circumstances cannot be faulted with since in the given case as per records immediate course of action was taken by the OP Hospital and if that be the case one cannot allege and establish mala fide in which case, the allegation of the negligence cannot be substantiated.
12. The Hon'ble Apex Court in the matter of Kusum Sharma versus Batra Hospital as reported in (2010) 3 SCC 480, was pleased to hold in para 89 as under:
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise 4 (1968) 118 New LJ 469 5 (supra) 8 a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field.
7 V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and 9 apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
13. We may at this stage refer to a decision in the case of Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr. reported in (1998) 4 SCC 39. Their Lordships observed as follows:
"Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which 8 under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."
14. Having analysed the significance or otherwise of the case law on the subject, we may now deliberate whether in the whole process the allegation of medical negligence as against the OPs can withstand the test of scrutiny, as alleged. Negligence per se is defined in Black's Law Dictionary as under:
"Negligence per-se : conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.
According to Hulsbury's Law 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 (a) 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 (b) A breach of any of these duties will support an action for negligence by the patient.
15. No averment in substance has been made by the complainant that the action of the OPs in administering the treatment suffers from any infirmity or their decision to this 9 effect is coupled with any malafide. If that be the case the allegation of negligence as against the OPs in this behalf cannot be substantiated. The Hon'ble Apex Court in the matter of Achutrao Haribhan Khodwa and ors vs. State of Maharastra and ors as reported in (1996) 2 SCC 634, is pleased to observe that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable but their Lordships have further observed that if the doctor has taken proper precaution and despite that if the patient does not survive then the Court should be very slow in attributing negligence on the part of the doctor.
"A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable.
16. In Jacob Mathew's case as reported in [2008] 6 SCC 1, the Hon'ble Supreme Court observed as under:
"78. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by 10 acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. This court in Jacob Mathew's case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient."
17. In Jacob Mathew's case (supra), conclusions summed up by the Hon'ble Supreme Court are very apt and some portions of which necessary for the adjudication of the case under consideration, are reproduced hereunder-
Negligence is the breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three:
Duty, Breach and Resulting Damage.
Negligence in the context of medical profession necessarily call for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
The standard to be applied for judging, whether the person charge 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 11 basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence."
18. The Hon'ble Supreme Court is pleased to approve the test as laid down in Bolam versus Friern Hospital Management Committee. The relevant principles culled out from the case of Jacob Mathew versus State of Punjab and Anr as reported in (2008) 6 SCC 1 read as under:
a. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which prudent and reasonable man would not do, the definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach', and resulting damage.
b. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course method of treatment was also available or simple because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
c. 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, with 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 12 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 practises. A highly skill 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.
19. The National Commission in the case of 1 (1999) CPJ 13 (NC) titled Calcutta Medicare Research Institute versus Bimalesh Chatterjee and ors ruled that "the onus of proving medical negligence and resultant deficiency in service was clearly on the complainant which in the given case remains unsubstantiated.
20. Coming back to the facts of the case, the Op-1 and Op-2 had done the treatment without any delay. The doctors attending the complainant was qualified to impart the treatment and prompt in providing treatment. It is not the case of the complainant that an unqualified doctor did the treatment. This is also not the allegation that there was delay in the matter. This is not the case of the complainant that required protocol was not followed by the treating doctors. Shorn of superfluities the only objection or allegation of the complainant is that the pacemaker when not needed was implanted. But this has to be decided or determined by the treating doctor. They otherwise competent to do the treatment being specialist in the field had deliberated to do so. There appears to be nothing wrong or irregular in the process.
21. Having regard to the discussion done and legal position explained we are of the considered view that the negligence as alleged against the treating doctor or OP hospital could not be substantiated and thus the appeal is liable to be dismissed. Accordingly the orders passed by the District Forum are upheld. 13
22. Ordered accordingly, leaving the parties to bear the cost.
23. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information. File be consigned to records.
(Dr. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER PRONOUNCED ON 28.10.2021 sl 14