National Consumer Disputes Redressal
Raushani Devi vs Maharaja Agrasen Hospital & Ors. on 13 August, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 136 OF 2002 Smt. Raushani Devi, W/O Late Radha Kishan Garg, House No. 190/2, Village Shalimar New Delhi Complainant Versus 1. Maharaja Agrasen Hospital Punjabi Bagh, New Delhi-26, Through its Manager. 2. Dr. Amar Singhal, C/o Maharaja Agrasen Hospital, Punjabi Bagh, New Delhi-26. 3. Dr. Pramod Jain, C/O Maharaja Agrasen Hospital, Punjabi bagh-26. 4. Sri Krishan Lal Bansal, President Maharaja Agrasen Hospital Charitable Trust, Rohtak Road, West Punjabi Bagh, New Delhi-26. 5. Sri Tekchand Gupta, General Secretary, Maharaja Agrasen Hospital Charitable Trust, Rohtak Road, West Punjabi Bagh, New Delhi-26. Opposite Parties BEFORE: HONBLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER HONBLE DR.S.M.KANTIKAR, MEMBER For the Complainant : Mr. Vivek Tripathi, Advocate For the Opposite Parties : Mr. Aseem Chanda, Advocate with Mr. Anurag Singh, Advocate. Pronounced On 13th August , 2013 ORDER
PER DR.
S.M. KANTIKAR
1. The complainant has filed this complaint under Section 21 & 22 of the Consumer Protection Act, 1986 alleging medical negligence and deficiency in service on the part of opposite parties in treatment of complainants deceased husband Mr. Radhakihsan Garg and has claimed compensation of Rs.52,50,000/- from them under various heads.
2. The facts of this case The Complainants husband Late Shri Radha Kishan Garg, a businessman about 50 years of age with earnings about Rs. 20,000/- per month. He was the head of the family and in sound health without any major disease.
On 09.01.2002 Shri Radha Kishan (herein as Patient) went to OP-Hospital with a complaint of chest pain. He was diagnosed as a chronic case of acid peptic disease and the treatment was advised.
As the patient had continued chest pain for further two days consulted the OP-
2 and 3 on 11.01.2002 after laboratory and ECG investigation he was diagnosed as Acute Inferior Wall Myocardial Infarction ( in short AIWMI). Accordingly, the OP-2, Dr. Amar Singhal advised Coronary Angiography (CAG) and continued with the same treatment of acid peptic disease and also insisted the complainant to deposit Rs.2 lacs for by-pass surgery. On next day i.e. 12/01/2002 at 11:00am Dr. Amar Signal and Dr. Prakash Jain conducted CAG and as per OP showed Triple Vessel Disease (TVD), thereafter Percutaneous Trans luminal Coronary Angioplasty (PTCA) conducted only on Rt Coronary Artery ( RCA) despite respondent demanded Rs.2 lacs from complainant for this RCA.
After post operation OP recorded its progress report stating the jerking in eye, vomiting, giddiness, etc. which clearly signifies some problem in brain of the patient. The patient was referred to a Neurologist who diagnosed the case as Posterior Circulation Stroke and advised for C.T. Scan and MRI of head region. The neurologist advised injection Clexane, if there was no bleeding in C.T and withheld Tab. Monotrate but the OP-2 Dr. Amar Singhal after seeing the C.T. Report, restarted the injection of Clexane . Hence, it was against the Neurologists advice which was administered earlier to the C.T. Scan which revealed massive bleeding in the brain. As Clexane is blood thinner which results in further bleeding or hemorrhage.
Also stopping of tablet Monotrate despite patient suffering from CAD and high blood pressure. The complainant also complained that as the OP -1 is Heart Institute not taken proper care to control the high blood pressure of patient and it was illogical to withhold Tablet Monotrate.
3. It was also alleged that OPs did not take opinion of two expert prior to angioplasty decision which is mandatory in medical practice, and did unnecessary angioplasty as the condition could have been managed even by oral medication.
At the end, the patient died of brain hemorrhage at CCU on 13/1/2002.
4. The complainant who was not well qualified and unaware of complexities of the case deposited Rs two lacs on account of By-pass surgery. But, actual cost for angioplasty was between Rs.20,000 to 40,000/-
therefore OP not performed By-Pass surgery but charged Rs.1,50,200/- for angioplasty. Thereafter on 15/1/2002, the family members of complainant held a meeting with one Mr. Laxmi Narain, one of the trustees of hospital along with the OP doctors in which it was admitted that the case was not handled properly.
5. It is alleged that because of negligent attitude of OP doctors the complainant lost her husband who suffered an irreparable loss as doctors were deficient in providing the service. The complainant therefore , claimed a compensation of Rs. 52,50,000/- as under:
i.
Medical expenses incurred and paid to the Respondents. Rs.1,50,200/-
ii.
Loss of life during the course of treatment Rs.15,00,000/-
iii. Loss of future earning (taking net income- as Rs.20,000/-p.m.) Rs.21,00,000/-
iv. Loss of love and affection of the husband Rs.10,00,000/-
v.
Compensation towards mental agony and torture. Rs.5,00,000/-
================ Total Rs.52,50,000/-
================
6. The opposite parties contested the complaint by filing reply and denied the allegations of the Complainant and contended that there is no deficiency in service in treatment of the deceased husband of Complainant.
7. To acquire the details and other clarifications about 25 interrogatories were served on OP-2 and OP-3. A set of about 40 interrogatories each was served by OP 1 & 2 to the Complainant and the four persons namely S.K. Sarkar, Laxmi Narain, Rajendra Gupta and Ramdhari Goyal who attended the meeting on 15/1/2002. Both parties replied the interrogatories. Some of the interrogatories and their replies are germane to decide whether there was deficiency in service and medical negligence by OP doctors in treating the patient.
8. The complainant filed her affidavit evidence. Also filed the affidavit evidence on behalf of Complainant by four witnesses named as S.K. Sarkar, Laxmi Narain, Rajendra Gupta and Ramdhari Goyal.
9. The complainant in her affidavit reiterated the allegations which were made in the complaint about the negligent attitude of OPs.
The death of her husband was an irreparable loss which was due to the doctors who were deficient in providing proper services in following manner:
a) Wrongly diagnosed the disease and continued treatment considering it a case of peptic ulcer;
b) Without obtaining the opinion of the Senior Doctors and without even taking the second opinion conducted the angioplasty;
c) Directed the Complainant to deposit a sum of Rs.2 lacs for conducting a bypass surgery though it was not to be conducted and conduced angioplasty which is too cheaper;
d) In spite of being a Heart Research Centre, no timely and proper steps were taken, even after noticing that there was jerking in the eye, vomiting, giddiness, etc. means something was wrong with the brain;
e) Without consulting the expert and against their advice, injection Clexane was given;
f) Without even taking the proper advice Tab. Monotrate was withheld;
g) No proper care was taken to control the blood pressure.
10. The affidavit evidences of other four persons on behalf of complainant were in the same line of complainants evidence and supported the complainants allegations against Opposite Parties.
11. The Complaint filed annexure which are marked as Annexure P/1 to P/3. Copy of Doctors Prescription as P/1, the Copies of Nurses Report P/2 and Copy of Bill as P/3.
12. Defence:
The OP-2 and OP-3 filed their affidavit evidences. In addition to those affidavits three separate affidavits were filed by i) S.B. Gupta (OP-3), the Administrative Officer of (OP-1) Maharaja Agrasen Hospital ii) Krishnalal Bansal (OP 4), the Convenor of OP-1 Hospital and iii) Tek Chand Gupta (OP-5) the President of OP 1 Hospital Charitable Trust. The OP submitted that the Complainant has not come before this Commission with clean hands. The amendments made in the original complaint were to build the case with malafied intentions and for illegal gain by way of misuse and abuse of the benevolent Consumer Protection Act.
13. The doctors OP 2 & 3 placed Photocopies of Medical Record of patient which are marked as Exhibits RW 1- RW 70. OP doctors made submissions about the line of treatment adopted by them for the said patient as follows:
I. Patient attended OPD on 10/01/2002 at Gastro OPD with history of pain 3 days (non-specific pain) all over abdomen with past history of Duodenal Ulcer (DU) 1999. On examination, advised certain tests with prescription of medicines and referred to Cardiology OPD for suspected Coronary Heart Failure (CHF).
II.
On 11/01/2002 patient attended Cardiology OPD at about 11 am. After ECG, he was diagnosed as a case Acute Inferior Wall Myocardial Infarction (AIWMI). Accordingly admitted in Heart Command Centre and treatment for acute MI was started.
III.
OP denied that the patient was treated only for Acid Peptic Disease as complainant mis-quoted the facts in progress sheet. The progress sheet of patient shows a known case of Acid Peptic Disease who admitted with history of chest pain radiating to both arms and neck and back two days ago which subsided ... It is the history given by patient himself.
IV.
On 12/01/2002 at 8 am OP-2 examined patient who had again complaints of Chest pain and giddiness, headache and anorexia. Therefore, considering such condition of patient OP-2 advised to perform coronary angiography at first instance. After taking informed consent OP-2 performed CAG and diagnosed the case as Triple vessel disease (TVD). It was observed that 90% blockage in Right coronary artery (RCA) 60% in Left coronary artery (LCA). Hence , OP-2 advised PTCA-RCA as a proper treatment . Same was discussed with family members and risks explained; thereafter OP-2&3 performed PTCA+ICS-RCA on the same day by and details of procedure were mentioned in Progress Report Sheet and thereafter general condition of the patient was stable.
14. It is further submitted by OP that after PTCA the chest pain of patient subsided but giddiness persisted for which opinion of Neurologist was sought. Neurologist examined the patient on the same day ie on 12/01/2002- 6:00 p.m. and diagnosed patient as Posterior Circulation Stroke and advised CT scan of brain. CT showed large cerebral infarct in the post circulation. The patient was also examined on 13/1/2002 by Neurologist at 9 pm. Therefore, the treatment given by OP-2 was as per recognized and accepted standard medical practice throughout the world.
15. As per the OP the Complainant has misrepresented the facts by quoting prescription of Neurologists as injection Clexane if no bleed in CT head. It is submitted that the Complainant has intentionally misquoted the prescription of the Neurologist which reads as under:
Advised: - Urgent CT Scan (Plain) Injection Clexane 0.6 ml. SC/bd-if no Bleed in CT Head (if no cardiac C.I.) MRI brain when feasible Rest CST (continue same treatment)
16. But the OP categorically stated that there was no haemorrhage as alleged by the Complainant but there was cerebral infarct and the injection Clexane and temporary withholding of Tab. Monotrate were as per standard of practice. Hence, there is no medical negligence. Therefore, Op is not liable for medical negligence and for the compensation.
17. The OPs further submission that the OP has allowed a discount of Rs.15,000/- on the recommendations of one of the trustee. Even though Rs.21,000/- remained unpaid as the balance due from the Complainant towards the total bill of Rs.1,65,200/-. Therefore, the complaint is not maintainable as full consideration was not made. Also, the Complainant has made false and concocted allegations in her complaint. None if the allegations made in the complaint with regard to the course of treatment given to the patient and it is not supported by any expert opinion.
18. We have heard the Counsel and perused the evidence and medical records of Maharaja Agrasen Hospital (OP-1), like the progress sheets in patients record, progress report sheets, etc. Learned Counsels for both parties submitted written arguments and made oral submissions.
19. Learned Counsel for Complainant Shri Vivek Tripathi vehemently argued that there was sheer medical negligence and non-performance of duties with due care, fairly, reasonably, exercising ordinary and competent degree if skill and unfair trade practices by OP. The doctors that they have not acted in accordance with standard of medical practice. The treatment was deficient, with careless attitude and OP did not follow the advice of Neurologist, but OP administered the Inj. Clexane which resulted brain haemorrhages and death of patient., therefore, the Complainant is entitled to the relief claimed.
20. Learned Counsel Mr Aseem Chanda and Anurag Singh for OP centralized their arguments on the main allegations of the Complainant on points as stated supra in para 8 under headings (a) (g).
Discussion:
Now the points in this case are
i) Whether the Complainant proved there was deficiency in service on the part of opposite parties?
ii) Whether the Complainant has proved the elements of negligence?
iii) Whether the Complainant deserves for the compensation as prayed? And to what relief the complainant is entitled?
The findings to above points are:
i) In the Negative
ii) In the Negative
iii) As per final order below for following;
Reasons:
21. On perusal of medical records on file it is clearly admitted case of the parties that husband of complainant Late Radha Kishan Garg was a known case of Acid Peptic Disease, the doctor suspected the chest pain could be due to heart problem also. As per advise of OP to rule out heart problem the patient investigated on 11/01/2002 by ECG, USG and certain blood test in Cardiac OPD. The patient was diagnosed as Acute Inferior Wall Myo-Cardial Infarction and for treatment admitted immediately in the Heart Institute (OP-1). Patient was subjected for Angiography on 12.01.2002 and further diagnosed as that Triple Vessel Disease with findings as RCA was blocked up to 90% and other two vessels were blocked to the extent of 70% and 60% respectively. Thereafter, only the PTCA-RCA was performed as it was not advisable to intervene with non-critically blockages of the other two vessels during such acute condition of patient. After PTCA, the chest pain of the patient subsided but the giddiness continued for which a Neurologist was sought and CT Scan was performed to CT that the patient was suffering from Cerebral infarct also.
22. We agree with the line of treatment adopted by the OPs in this case. OP has performed their duties as the Standard of Medical Practice in proper diagnosis of the disease by specific investigations, thereafter the referral to the Neurologist for the complaints of giddiness and vomiting.
23. The complainants main grouse was that the OP did not follow the advice of neurologist and continued injection Clexane despite the CT head showed haemorrhages. The CT scan showed Cerebral Infarct which is NOT a haemorrhage. The complainant is wrong in considering and interpreting the INFARCT same as HEMORRHAGE. Therefore, we need to read very carefully the Exhibit RW 33 the Neurologists diagnosis (impression) as Posterior Circulation Stroke and advice Advised: - Urgent CT Scan (Plain) Injection Clexane 0.6 ml. SC/bd-
if no Bleed in CT Head (if no cardiac C.I.) MRI brain when feasible Rest CST (continue same treatment) The sentence injection Clexane.. if no bleed in CT head is misquoted by complainant . It is necessary to read above lines collectively i.e not in vacua. As such the CT head did not show bleed (hemorrhage) hence Inj Clexane was continued by OP.
Hence, we do not find any deficiency by the doctors attending the patient including the Cardiologist, Neurologist, etc. Also, giving injection Clexane to the patients having cerebral infarct is a standard treatment. Exhibit RW 37 mention that the OP followed the treatment of Posterior Circulation Stroke advised by Neurologist with Inj.Mannitol, Inj Lasix as standard of practice.
24. It is pertinent to note in this case that the OPs have given entire file of medical record containing 41 sheets to the relatives of patient who had requested after death of patient. But, complainant has not placed the entire file, but placed only few documents before this commission. Complaint has concealed the report of two CT Scans with an intention to mislead this Commission. But, the notes and observations made by the treating doctors in the Progress Sheets throw light. The clinical notes on 13/1/2002 from 7 pm onwards in the progress sheet Exhibit RW 38 revealed that patient was in Poor Condition , Generalised flexion Increased Intracranial Tension for which CT head was done and revealed Multiple Infarcts. The Exhibit RW 39 , 39 are progress report sheet dated 13/1/2002 mentioned as at 7.30 pm the patient suffered Respiratory Arrest followed by cardiac arrest ; the OP doctors treated by all measures , done CPR ( Cardio Pulmonary Resuscitation) , patient was put on ventilator , DC shock. Despite of proper medical treatment and care the condition of patient deteriorated and subsequently died on 14.01.2002 at 6:30a.m.
25. To ascertain the truth we have referred the nurses notes from 11/1/2002 to 14/1/2002 which are Exhibits RW 41 to 46 Those notes also confirmed that the OPs acted in accordance with standards of medical practice and treated the patient with all possible efforts.
26. For legal position What constitutes Medical Negligence? is now well established by a plethora of rulings of the Honorable Supreme court of India and by several orders of this commission. In the Bolams case (Bolam Vs. Frien Hospital Management Committee (1957) 1 WLR 582 it was also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. Essentially three principles are applied to decide negligence of doctor;
(i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; in this present case it is YES both the OP doctors are qualified as DM Cardiology and Senior Consultants having 15 years expereince ;
(ii) Whether the doctor adopted the practice (of clinical observation diagnosis including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field.
(iii) Whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated. Our view on the points No (ii) & (iii) are Yes as the both respondents adopted standard of practice in proper diagnosis, referral and further management.
27. The Honble Supreme Court in Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC 1= III (2005) CPJ 9 (SC) had concluded that, a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.
Therefore in the instant case OP-2 and 3 are qualified and skilled in their specialty , hence it is not negligence.
28. Applying all the above principles in the instant case, we are convinced that there is no medical negligence admittedly, the respondents are qualified doctors and they have used their best professional judgment and due care in treatment of patient right from beginning.
29. In the case of Kusum Sharma Vs. Batra Hospital(2010 CPJ) culled out the following principles:
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 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 standards of a reasonably competent practitioner in his field.
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 unnecessary harassed or humiliated so that they can perform their professional duties without fear and 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.
30. Further, we have referred standard medical texts and literature which revealed that there is lot of difference between Cerebral Infarct and Cerebral Haemorrhage. Both entities are totally different. There is no contraindications for use of Inj.
Clexane in post PTCA Cerebral Infarction. The Complainant did not produce the CT reports stating as Hemorrhgaes. Therefore, complainants allegation is absolutely wrong about CT showed cerebral haemorrhage and against the advice of neurologists the OP continued the treatment by injection Clexane and subsequently the patient died of cerebral haemorrhage.
31. Reference from Medical Text and Literature:
We have referred The text book Harrison's Principles of Internal Medicine (18th edition) to understand the medical management of Cerebral Infarction, the Acute Myocardial Infarction and Triple Vessel Diseases. We felt it is necessary to distinguish the terms HEMORRHAGE and INFARCTION to decide this case of medical negligence. Hence, it is important to know the causes of Myocardial infarction and Cerebral Infarct. It is very clear from the angiography of patient that there was a Triple Vessel Block almost 90% in the RCA and 60-70% in other two vessels. Such blocks are most common due to atherosclerosis of small arteries which lead to ischemia (loss of blood supply). Cerebral Infarction is focal brain necrosis due to prolonged ischemia by small vessel disease and cardio embolism. It is the most common cause of ischemic stroke in elderly patients.
Small vessel disease includes atherosclerosis of small arteries but refers more specifically to lipohyalinosis and hyaline arteriolosclerosis, vascular lesions that are seen primarily in hypertension and diabetes but occurs also in old age without these predisposing conditions.
According to some authors, embolism is the most frequent cause of ischemic infarction. Most emboli are fragments of blood clots that originate in the heart or major vessels. Conditions causing cardiac emboli include myocardial infarcts, atrial fibrillation and other arrhythmias, rheumatic heart disease, bacterial and non-bacterial endocarditis, prosthetic valves, mitral valve prolapse, atrial myxoma, calcified mitral annulus, and cardiomyopathy. An embolus cannot be distinguished grossly or microscopically from a locally formed thrombus. An infarct is assumed to be embolic if it is hemorrhagic, there is a source of emboli, there are multiple infarcts of the brain and other organs (kidney, spleen), and there is no atherosclerosis or other vascular disease. Some emboli consist of atheromatous material that is detached from ulcerated atheromas of the aorta or carotid arteries. Vascular manipulation (angiography, carotid endarterectomy) may cause atheromatous embolism. Rarer causes of embolism are fat, air, and tumor emboli. Unlike athero-thrombotic infarcts, which may evolve within hours or days, embolic infarcts have an abrupt onset.
32. Therefore, for the reasons stated above in our opinion the OP doctors have treated the patient with care and caution as per standards of medical practice. We do not find any deficiency in their services in diagnosis and treatment. They have taken life saving measures and care during the Cardio-Respiratory arrest and tried to save the patient. The patient suffered Cerebral Infarct and the death of patient was not due to Cerebral Hemorrhage as alleged by complainant but death was due to Cardiac Arrest. Also, the complainant is failed to prove that the patient suffered cerebral hemorrhage and death was due to negligence of OPs in treatment.
33. We have perused the complainants Annexure P/3 placed on record as a Bill for Rs.165,200/- in which discount of Rs.15,000/- was allowed and a sum of Rs.21,000/- remained unpaid . Also, the Exhibits RW/47 and RW/49 placed on record by OPs clearly mention about the Schedule of Charges, hence the contention of complainant about Rs.2 lacs paid for bypass surgery will not sustain. We ignore this issue of short of payment.
34. To conclude on a consideration of the entirety of the facts and circumstances of the present case, the evidence and material brought on record, and the different standard medical text books, the irresistible conclusion is that the Complainant failed to establish her case about the medical negligence and / or deficiency in service against the opposite parties in the treatment of her husband(deceased). The complaint being devoid of any merits is accordingly dismissed, leaving the parties to bear their own costs.
..
(J. M. MALIK, J.) PRESIDING MEMBER ...
(Dr. S. M. KANTIKAR) MEMBER MSS/22