State Consumer Disputes Redressal Commission
Prakash Mohan Tripathi vs .Batra Hospital & Medical Research ... on 4 October, 2007
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 04-10-2007 Complaint Case No. C-207/1998 Shri Prakash Mohan Tripathi, Complainant C-9/9096, Vasant Kunj, Through New Delhi-110070. Mr. S.K. Sharma, Advocate. Versus 1.Batra Hospital & Medical Research Centre, Opposite Party No.1 1, Tughlakabad Institutional Area, through Mehrauli Badarpur Road, Mr. Manavendra Verma, New Delhi-110062. Advocate. 2. The New India Assurance Co. Ltd. Opposite Party No.2 124, Jeevan Bharti, Through Connaught Circus, Mr. Binay K. Das & New Del;hi-110001. Mr. A.K. Raina, Advocates. 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 (ORAL) Complainant Prakash Mohan Tripathi has sought the following compensation for having contracted Hepatitis-B virus while being operated upon at the OP-Hospital for Right Ingunial Hernia on account of subsequent medical expenses incurred by him:-
Sl. No. Particulars Amount
1.
Hospital expenses in Batra Hospital, Apollo Hospital, P.S.R.I. etc. Rs. 80,000.00
2. Fare for USA & Return, Visa charges etc. Stay at USA for 4 mohths @ US $ 100 per day as per advice of Doctor.
Rs. 84,528.00
3. Conveyance for family to visit Hospital and back for 24 days from 20th March to 13th April @ Rs. 500/- per day.
Rs. 12,000.00
4. Loss of pay for 4.3.98 to 8.5.1998 and thereafter for 4 moths.
Rs. 1,73,624.00
5. Damages for mental agony, pain and for future treatment.
Rs. 11,50,000.00 Total Rs. 20,00,000.00
2. Complainant was working as Executive Director with Housing & Urban Development Corporation Limited, HUDCO Bhawan, Lodi Road when he was admitted in OP-Hospital on 9th December, 1997. He was operated for Right Inguinal Hernia on 10-12-1997 and was discharged from the Hospital on 13-12-1997. He was only given glucose and injections for which syringes and needles were used by the Hospital. According to him when he was brought from the operation theatre to the room even bed sheets of the operation theatre were not removed and the same were got removed by the Surgeon himself with the assistance of his wife.
3. Again he developed low grade fever which was not being cured and went to Apollo Hospital for check up on 28-02-1998 whereafter preliminary check ups he was informed that he has suffered deep jaundice. On enquiry from the complainant if he had undergone any surgical operation which he intimated that he was operated upon for Hernia on 10-12-1997 at Batra Hospital. He was accordingly advised to go for Hepatitis-B Virus check up and on the necessary tests it was found that the complainant was suffering from Hepatitis-B. He was informed that such a virus mainly being blood related and is contracted due to unhygienic conditions of the medical equipments or syringes or the operation theatre.
4. The complainant was further advised that Hepatitis B is intractable and dangerous disease and it appeared within 10 weeks of the operation which is well within the incubation period. Since the condition of the complainant did not improve he was under medical advice, admitted to Pushpavati Singhania Research Institute for Liver, Renal and digestive diseases on 21-03-1998 for a prolonged and costly treatment. He remained hospitalized from 21-03-1998 to 13-04-1998 and was subjected to several tests both at the Pushpavati Singhania Research Institute and at Kings Health Care NHS Trust Denmark Hill, London and had to take very expensive imported injections and even after being discharged the treatment of the complainant is continuing. Photocopies of the tests, medical prescriptions, bills, reports and discharge summary are Exh. CW1/3A to CW1/3Z7. Report of Kings Healthcare Institute is Exh. CW1/4.
5. That the complainant suffered the disease of Hepatitis-B while he was admitted in the Batra Hospital for operation of Right Ingunial Hernia.
6. In its defence the OP-Hospital has come up with the following version:-
(i) That the complainant suffers from a severe form of photo sensitivity for which had been undergoing various tests and modalities of treatment in the past.
He had been subjecting himself to a regular health check up at many other hospitals, where he was administered certain injections and blood tests were conducted which could well have transmitted the Hepatitis B virus. In addition, the virus can also be acquired through a barbers razor, scissor cuts, dental and neurological examination or even less obvious mode of non-percutaneous or covert percutaneous transmission. He did suffer from neurological problem in the past and had undergone an EED examination for the same.
(ii) That the complainant was admitted to the OP-hospital on 09-12-1997 for right herniohaphy. The patient had swelling of the right groin noticed one year back which increased on standing, walking, coughing and decreased on lying down. The patient was operated on 10-12-1997, per operative revealed direct hernial sac coming from defect in fascia transversalis. Sac was separated from the chord and was inverted. Bassinis repairs done with NO. 1/0 prolene. Ext. Oblique closed with NO. 1/0 prolene. Incision closed in layer. Post operative period was uneventful and the patient was discharged on 13-12-1997 with follow up advice. All tests were conducted and found normal before the operation. The pre-opeative tests carried out on the complainant were the routine blood tests done before performing simple operat8ions like herniorrhaphy. These tests do not include any blood tests to confirm or rule out Hepatitis B or any other type of viral infection.
(iii) That a person may be a carrier of Hepatitis B and remain undetected. It is quite probable that the complainant was already carrying the virus even before his operation at the OP-Hospital.
(iv) That the sheets mentioned herein were not the ones from the operation theatre as those were removed and segregated immediately after the operation was finished and the patient shifted to the recovery room. These sheets were the ones from the patients bed in post-operative room. It is impossible to contact Hepatitis B virus from bed sheets and other articles of laundry even if they are not properly washed.
(v) That it is incorrect to conclude that Hepatitis B suffered by the complainant originated in the OP-Hospital. The course of this virus is not blood and contaminated instruments alone but is also transmitted by body fluids such as semen., vaginal secretions, and saliva as well as through intimate sexual contact. Hepatitis B can also be contacted through blood sucking anthropoi9ds like mosquitoes.
(vi) That the operation theatre facilities in the OP-Hospital have been provided with one of the best sterilizing systems in the world. This is demonstrated by the fact that most patients operated herein do not require any antibiotics in the post operative period. The needles and syringes used for administering injections are disposable ones and destroyed after a single use by cutting away their hubs.
(vii) That the instruments used are sterilized by autoclaving. The Hospital uses separately packed and individually sterilized instruments for each operation on one particular day when the theatre facilities are fresh, yet unused and maximally clean. Although, the disease was detected within 10 weeks after the operation, yet the incubation period is any time between 6 weeks to 6 months and it is probable that the complainant had already acquired the disease before his admission in the OP-Hospital.
(viii) That before and after the complainants hospitalization, thousands of other patients have been relieved of their sufferings by the same medical personnel at the very same Hospital
7. In support of his allegations the complainant has produced and relied upon the following documents, besides medical literature:-
(i) Annexure CW-1/1 to CW-1/L are admission report, other prescriptions and discharge summary of the complainant.
(ii) Annexure CW-1/2A to CW1/2 O are copy of Medical Report, tests and copy of advice of Medical Practitioner.
(iii) Annexure CW1/3A to CW1/3Z 7 are photocopies of tests, medical prescriptions, bills, reports and discharge summary.
(iv) Annexure CW1/4 is the copy of report of Kings Healthcare Institute.
(v) CW1/5 is the collective write up on Hepatitis B Transmission
(vi) CW1/6 is literature on Hepatitis B
(vii) CW1/7 is a lett3er sent by the complainant to the Chairman of Batra Hospital with regard to the Infective Hepatiti-B arising from hospitalization for operation of Rt. Ingeunial hernia in Batra Hospital.
(viii) CW1/8 is the legal notice sent by the counsel for the complainant to the OP-Hospital
(ix) CW1/10 are the details of expenses incurred by the complainant.
8. On the concept of medical negligence we have culled out certain criteria from large catena of cases i.e. from Bolams case followed by number of cases of Supreme Court including the recent judgment in Jacob Mathews case. 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?
References :-
(i) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(ii) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(iii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(iv) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(v) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651.
(vi) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369.
9. As is apparent from the rival contentions and the pleading of the parties, the OP has ruled out any negligence on its part while operating the complainant firstly on the ground that the complainant being suffering from a severe form of photo sensitivity for which he had been undergoing various tests and modalities of treatment in the past and had been subjecting himself to a regular health check up at different hospitals and the instruments used by the OP-Hospital are sterilized by autoclaving and separately packed and individually sterilized instruments for each operation on one particular day. On that day complainant was the first patient on that particular day when the theatre facilities are fresh yet unused and maximally clean.
10. Another significant contention of the counsel for the OP in this regard is with regard to Hepatitis B is that the source of virus is not the blood and contaminated instruments alone but it can be transmitted by body fluids such as semen, vaginal serections, saliva as well as through intimate sexual contact and also can be contacted through blood sucking anthropoids like mosquitoes. In this regard OP has referred to and relied upon the following medical journal:-
HBV transmission.
HBV is highly infectious. It is estimated to be 100 times more infectious than the AIDS virus (HIV). It has been found in carriers in virtually all secretions and excretions of the body. Daily living, therefore, provides many opportunities for transmitting virus from a carrier or an acutely infectious person to a susceptible individual:
(i) The major recognized routes of HBV transmission are :-
Sexual Parenteral or percuatneous Perinatal (vertical transmission) Horizontal (e.g. between siblings).
(ii) Hepatitis by Roger Y. Dodd, Chapter 38 Broadly speaking HBV transmission is charact6erized by two major routes: (1) The perinatal route, in which an infected mother transmits the virus to her baby at or around the time of birth; and (2) horizontal transmission by a number of routes, but particularly during sexual intercourse.
In addition to birth to an infected mother, there are number of well-established behavioral and environmental risk factors for HBV infection that reflect the transmission routes. These risk factors include intravenous drug use. Sexual exposure to infected partners (particularly for male homosexuals), exposure to nonsterile skin-piercing instruments, and employment in a health-care environment.
The virus is relatively stable on surfaces and is thus transmitted by a number of formalities, including such unexpected items as file cards (in association with paper cuts), shared razors and toothbrushes, and so on. It should also be noted that contamination of the mucous membranes with droplets of infected fluids may lead to infection as may entry of the virus through even extremely minor skin wounds and abrasions.
11. On the same subject the counsel for the complainant has also relied upon the following documents:-
(i) Hepatitis B transmission (Journal of the American Medical Association) Commentary In addition to blood HbsAg has been found in almost all body secretions and excretions. Only blood, serum-derived fluids, saliva, semen and vaginal fluids have been shown to be infectious.
Hepatitis B can therefore be transmitted through sexual activity, both heterosexual and homosexual and this is particularly important in areas of low endemicity. The virus can also enter the body through contact with contaminated blood or saliva through small skin wounds or open sores, shared personal items such as toothbrushes, combs and razors which can carry minute amounts of contaminated blood.
In the workplace infection canbe spread by accidental needle stick injuries, splashes onto mucous membranes, or penetration of the skin by an infected object.
(ii) Hepatitis B Virus
12. As is apparent the medical literature show that incubation period i.e. the period within which the symptoms of disease manifest themselves after acquiring of infection by an individual ranges from 30 to 180 days. The OP has taken the plea that complainant might have contracted this Hepatitis B at some other place as he was suffering from a severe form of photo sensitivity for which he had been undergoing various tests and modalities of treatment in the past and had been subjecting himself to a regular health check up at different hospitals. If it is so the complainant should have contracted Hepatitis B within 180 days prior to his admission in the OP-Hospital i.e. 9th December 1997. However, Hepatitis B was detected on 21st March 1998 when test conducted upon him was found positive though on 28th February 1998 he was developed low grade fever which was not getting cured and therefore chose to go Appolo Hospital where on preliminary check ups he was informed that he has suffered deep jaundice and it was on their advice that he checked up for Hepatitis B. OP has not produced any kind of record or material that prior to December 1997 the complainant had while undergoing treatment for photo sensitivity or undergoing tests and modalities had developed low grade fever which could not be cured as it is this symptom which prima facie leads to the conclusion that the patient may be suffering from jaundice and if he not recovering then he is advised for check up for Hepatitis B.
13. The long duration of three months between the admission of the complainant in the OP-Hospital and the detection of the Hepatitis B leads to the inference that the complainant contracted Hepatitis B while he was under the treatment in the OP-Hospital. However, during admission and treatment drugs and injections were being give and possibility of syringes and needles having caused Hepatitis B cannot be ruled out though there are varied other reasons.
14. The photo sensitivity disease period during which the complainant remained under treatment of the OP was a crucial period that resulted in development of Hepatitis B and not at prior point of time.
Had it been so complainant would have suffered it in a stage prior to the coming to the OP-Hospital. At the time of admission he was subjected to various tests etc. and was not subjected to the test of Hepatitis B and rightly so at that time he was having problem of low fever which was not cured. He was admitted for the Hernia operation which was done on 10th December, 1997 and he was discharged on 13th December 1997. Before admission he was subjected to all the tests including the blood tests.
15. So much so, the complainant took up the issue with the Chairman of the OP-Hospital by writing letter dated 28th March 1998 and pursuant to this a circular was issued on 6th April 1998 by the OP-Hospital which is to the following effect:-
MRC/CIR/MD/2138 Date : 06-04-1998 PREVENTIE STEPS AGAINST HEPATITIS B
1.
Proper sterilization of all instruments used in OT, Dental instruments & Endoscopes with 2% Glutarldehyde (Citadex) for atlest 20 minutes. The cidex solution should be changed after every two cycles or at expiry of activation life whichever is earlier. This includes laryngoscopes, bronchoscopes, ventilatory accessories and all other instruments used in diagnostic and therapeutic procedures. Before cidex treatment, the equipment should be thoroughly cleaned with water followed by soap solution. A separate tray shouldbe used for sigmoidoscopes. Accessories used for haemodilysis and transesophageal echocardiography should be managed as stated above. All staff concerned with intravencur lines and other related procedure must use gloves.
2. Screening of donor blood for BHs Ag; Anti HBc, lgM; SGOT & SGPT, apart from HIV and material parasites.
3. Vaccination against hepatitis B in staff working in high risk areas which includes all medical and para-medical staff (Laboratory, Dialysis, Dental, Laundry, CSSD, OT staff, Sanitary & Incinerator personnel).
4. Consultants, Residents, Nurses, Nursing students & paramedical staff as mentioned above in (4) to be vaccinated against Hepatitis B at the time of new recruitment. It is mandatory.
16. Be that as it may and for our purpose we do not subscribe to the contention of the complainant that this circular was issued pursuant to the letter sent by the complainant
17. Taking overall view of the matter we deem that lump sum compensation of Rs. 50,000/- which shall include the cost of litigation would meet the ends of justice.
18. However, in the of the stand taken by the OP-Insurance Company that OP No.1 has not furnished any kind of details as to the insurance policy, OP No.1 will have an independent remedy for the claim from the Insurance Company on the basis of finding of this Commission in this case. In our view the OP-Hospital and Insurance Company have an independent contract with which the patient or the consumer has no concern.
19. Aforesaid payment shall be made within one month from the date of receipt of this order.
20. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
21. Announced on the 4th October, 2007 (Justice J.D. Kapoor) President (Rumnita Mittal) Member jj