State Consumer Disputes Redressal Commission
Siddiqi Shah Nawaj Ahmed vs The Managing Director, Bombay Hospital ... on 30 April, 2019
[A/15/1319] 1
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
FIRST APPEAL NO.A/15/1319
(Arisen out of order dtd.12/08/2015 in Complaint No.24 of 2012 of South Mumbai
District Consumer Disputes Redressal Forum, Parel)
Siddiqui Shah Nawaj Ahmed
R/at - Room No.4, Ramu Sadhu,
Kamble Chawl, Kurla Hill,
Qureshi Nagar, Kurla (E), ......Appellant/
Mumbai - 400070. (Original Complainant)
Versus
1. The Managing Director,
Bombay Hospital & Medical Research Centre,
Bombay Hospital (Truest) Avenue,
New Marine Line, ......Respondent No.1
Mumbai - 400 020. (Original Opponent No.1)
2. Dr.Rajeev Nerurkar
Surgeon in Bombay Hospital &
Medical Research Centre,
Bombay Hospital (Truest) Avenue,
New Marine Line, ......Respondent No.2
Mumbai - 400 020. (Original Opponent No.2)
BEFORE:
Justice A.P.Bhangale, President
Dr.S.K.Kakade, Member
PRESENT: Mr.AjayPawar- Advocate for appellant.
Mr.G.N. Shenoy-Advocate for respondent no.1.
Dr.Rajiv Nerurkar- Respondent no.2 present alongwith
Adv.Mr.AnuragMankar i/b Pan India Legal Services LLP.
ORDER
Per Dr.S.K.Kakade, Hon'ble Member
1. Being aggrieved by the order in the Consumer Complaint No. CC/ 12/ 24 passed by the Learned District Consumer Disputes Redressal Forum, South Mumbai, Mumbai dated 12th August 2015, dismissing the complaint, the present appeal has been preferred by the original complainant under section 15 of the [A/15/1319] 2 Consumer Protection Act 1986, challenging the validity and legality of the order.
2. Facts necessary for deciding this appeal are as under:-
Appellant, original complainant Mr. Siddique Ahmed consulted the opposite Party number 2, ENT surgeon Dr. Rajeev Nerurkar at Bombay hospital Mumbai, which is opposite party number 1; for reduced hearing on the right side. After examining the patient and going through the audiometry reports available with the patient audiometry, was again performed at Bombay Hospital and surgery of the right ear was suggested by OP no. 2. The said operation (Stapedectomy Right side) was performed on 9th of February 2010 at OP no. 1 hospital, Bombay Hospital by OP no.2 and the patient was discharged on 10th of February 2010.
3. The patient complainant was again admitted on 15th of February 2010 for the complaints of severe giddiness and was treated in the hospital for three days, discharged on 18thFebruary 2010. Prior to consulting OP no.2, and also after the surgery, patient complainant consulted various ENT specialists and hospitals. After finding that, post-surgery there was loss of hearing on right side, even on comparing audiometry reports before operation and after operation, there was loss of hearing on right side, the complainant approached District Consumer Disputes Redressal Forum and filed consumer complaint OP no.1 and OP no.2, alleging medical negligence and deficiency in service.
4. In complaint the complainant prayed that for their deficiency in services, negligence and unfair trade practices, be held liable to pay Rs.15 Lakh along with the interest @ 21 % from the date of operation till realization, towards the compensation for the mental agony, trauma and inconvenience suffered by the complainant.
5. The opposite parties, opposed this complaint and filed written versions. Both opposite parties denied the charges of medical negligence and deficiency in service. As requested by the District Consumer Disputes Redressal Forum, [A/15/1319] 3 South Mumbai, expert Committee report from department of ENT of J.J. hospital, Mumbai was obtained. After going through all the record and hearing submissions made by both the parties, learned District Consumer Forum pleased to dismiss the complaint and thus ruled out any medical negligence for deficiency in service by opposite parties. Aggrieved by the judgement and order of District Consumer Disputes Redressal Forum, original complainant approached State Consumer Disputes Redressal Commission by filing an appeal against the order.
6. In the light of the above discussion, in the present case we have heard the learned advocate for complainant and the learned advocate of opposite parties and perused the record. Considering the rival contentions of the parties, considering the record and keeping in view the scope of the appeal, following points arise for our determination and our findings there on are noted for the reasons as below:-
POINTSand FINDINGS:
Sr.No. Points Findings
1. Whether the complainant proved that there was Partly Yes deficiency in service/unfair trade practice by the opposite parties?
A. Whether the complainant proved that the No
operation Stapedectomy was done hurriedly
without considering all the reports by the
operating Surgeon-OP no.2?
B. Whether the complainant proved that the OP
No.
no.2 wrongly conducted the operation?
C. Whether the complainant proved that the
opposite parties did not obtain Informed Yes
Consent, and there was deficiency in
documentation?
[A/15/1319] 4
D. Whether the complainant proved that the
No
opposite parties failed to take corrective steps
to treat the deafness resulted after the
operation?
2. Whether the order of District Forum is correct, just No
and Legal?
3. Whether the Appellant is entitled for compensation? Yes
4. What Order? As per the
final order
REASONS:
7. As to POINT No.1(Medical Negligence/Deficiency in Service) We have reviewed the concept and settled principles in deciding the negligence by highly skilled medical professionals. The concept of medical negligence is being dealt with settled principles of the law that govern it.
Reasonable degree of care and skill means that the degree of care and competence that an "ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question." The burden of proof is correspondingly greater on the person who alleges negligence against a doctor than a charge of negligence against the driver of motor car.
8. The Hon'ble Supreme Court while commenting on concept of medical negligence in the landmark case of Kusum Sharma &Ors vs. Batra Hospital and Research Centre &Ors , CIVIL APPEAL NO.1385 OF 2001 has held as follows:
" 48. 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 (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a [A/15/1319] 5 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 (c)."
"49. In a celebrated and oftenly cited judgment in Bolam v. Friern Hospital Management Committee (1957) I WLR 582 : (1957) 2 All ER 118 (Queen's Bench Division - Lord Justice McNair observed. "(i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view."
9. Learned advocate for the complainant-appellant submitted that the operation Stapedectomy was done in hurried manner, as the surgeon, OP no. 2 didn't wait for the investigations reports available before operation. He invited our attention to the timings of reports of various investigations available before operation; on pages 60 to 63 of appeal compilation. The report of bleeding time and clotting time was available in the evening at 5:24 pm, and other blood reports were available by noon on the same day. It was contended that without going through the reports of investigations, the operation was performed by OP no. 2 that was negligence on the part of OP no. 2. Advocate for opposite parties, submitted that in Bombay Hospital there is a system of online availability of all the reports and only after going through these reports this operation was performed. All the reports are printed afterwards and made available later due course of time. It was contended by the opposite parties that Stapedectomy was comparatively minor operation performed under local anaesthesia and it was performed only after going through the said reports of investigations and finding that all reports were normal. On enquiring whether the reports were essential for fitness for operation, learned advocate for complainant did not [A/15/1319] 6 submit any document on record explaining the same. Hence the answer to POINT no.1 A is Negative.
10. Learned advocate for Appellant- complainant submitted that OP no.2 assured the complainant that he will be able to hear even whisper after the minor operation of Stapedectomy was performed. As per the assurance by the OP no.2, it was expected that patient will be able to hear that sounds at 25 to 30 decibels. Learned advocate of complainant appellant invited our attention to audiometry reports done at various institutions before operation and after operation. Page number 85, shows the report of audiometry done at department of Otolaryngology, K E M hospital Mumbai, done on 2nd December 2008 that reports ability of hearing on right side 60 decibel; on left side 56 decibel and it reads as "Bilateral moderately severe mixed Hearing Loss". Page number 70 of compilation shows the audiometry report two months after the operation, on 3rd April 2010, and the ability to hear was recorded as on right side 91 decibel and on left side 76 decibel. Remarks of the said report read as "Right- profound sensory neural hearing loss, left severe mixed hearing loss". The learned advocate for appellant contended that, it was due to hurried and wrong performance of the operation, there was complete loss of hearing of right year.
11. It was contended by learned advocate for opposite parties, that operation performed by OP no. 2, Stapedectomy, minor operation and performed under local anaesthesia and the said operation was performed as per the protocol and standard practice for the disease treatment from which appellant complainant suffered, Otosclerosis. As per page number 48, operation notes of the surgery show that the notes are written as per the standard accepted protocol, page number 114 to 121 from Textbook of Ear Surgery by Shambaugh: Exhibit B. OP no. 2, Dr Rajeev Nerurkar, himself explained the steps of surgery (excision of immobile Stapes bone and replacement with the implant) corroborated the same with the textbook description. We are of the opinion that, there was no negligence in performing the operation, hence we answer the POINT No. 1 B as Negative.
[A/15/1319] 712. We are of the opinion that the correctness of the treatment of the complainant in respect of diagnosis and the actual operation of Stapedectomy is the matter of subject experts. We find that there is expert opinion from JJ Hospital, Mumbai on record. The court need not decide the correctness of the treatment when different schools of thought advise different lines of treatment. The court will not endorse any one line of treatment. And hence based on the pleadings, evidence placed on record in the form of medical literature and the submissions of both parties, we find that there is no negligence by the opposite party no.2 in the treatment of the complainant in respect of Stapedectomy procedure.
13. Learned advocate for complainant invited our attention to the medical record submitted by the opposite parties. Page 41 of the compilation is the admission form in the hospital, OP no.1, page 42 is the consent form. It was contended by the advocate for complainant that consent obtained for the operation is printed and blanket consent. The consent for operation reads as under, "I hereby agree and consent to the performance of such operations/ procedure as may be found necessary to be performed upon myself / my relative and also to the administration of any anaesthesia for the purpose of search operations. I shall not hold the hospital responsible in whatever manner, for any consequence that may arise out of and in the course of such operations / procedures and/ or administration of anaesthesia.
Signature of the patient/ it Garden Signature of witness Date .............................................................................."
[A/15/1319] 814. Apart from above consent, no record of counselling, giving information about operation like name of operation, name of surgeon, name of anaesthesiologist, details about the operation, expected complications and relevant information. The consent form is not signed by treating surgeon. There is no noting of the details of said consent that have been explained in the language understood by the patient. Learned advocate for opposite parties submitted that the details of operation were informed orally to the patient and relatives. We have observed that there are no presurgical fitness notes or fitness certificate that is mandatory as per the protocol of surgical management of patient. So even though the treating doctor is competent surgeon, he has to take reasonable precautions and care in preoperative and post operative stages.
15. Advocate for complainant also invited our attention to discharge card issued by opposite parties, which is on page number 59 of the compilation, does not mention advise at discharge, so complainant appellant did not receive any advice regarding special care to be taken in post-operative period. It was contended by the advocate for complainant appellant that, as per the standard norms of treating such disease, post-operative instructions are very much needed. As per the page 122 from the reference medical literature submitted by opposite parties, (textbook of Ear Surgery by Shambaug, chapter on operations for Otosclerosis. Standard post-operative care as mentioned should be as follows, "Post-operative care Post operatively the patient is given adequate analgesics and instructed to avoid straining or blowing the nose. Antibiotics are not routinely prescribed. Patients are hospitalized overnight, although there has been a tendency to perform Stapedectomy as an outpatient procedure. "
16. Obviously as mentioned in post-operative care of Stapedectomy, no instructions were received by complainant from opposite parties nor were they written on discharge card. As far as the consent is concerned, the opposite [A/15/1319] 9 parties did not inform the complainant about the nature of surgery and likely effect of the said surgery, there was no document produced on record in this regard.
17. Hon'ble Supreme Court of India in Samira Kohlivs Dr.Prabha Manchanda & Anr CASE NO.: Appeal (civil) 1949 of 2004 on 16 January, 2008 has mentioned as follows-
"14. Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient. For example, when a patient enters a Dentist's clinic and sits in the Dental chair, his consent is implied for examination, diagnosis and consultation. Except where consent can be clearly and obviously implied, there should be express consent. There is, however, a significant difference in the nature of express consent of the patient, known as 'real consent' in UK and as 'informed consent' in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and 'real' when (i) the patient gives it voluntarily without any coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On the other hand, the concept of 'informed consent' developed by American courts, while retaining the basic requirements consent, shifts the emphasis to the doctor's duty to disclose the necessary information to the patient to secure his consent. 'Informed consent' is defined in Taber's Cyclopedic Medical Dictionary thus:
"Consent that is given by a person after receipt of the following information: the nature and purpose of the proposed procedure or treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding [A/15/1319] 10 those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful."
18. Learned advocate for the opposite parties submitted the authority, Hon'ble Supreme Court in Martin D'Souza vs. Mohd.Ishfaq CIVIL APPEAL No.3541 of 2002, has laid down the guidelines for dealing with medical negligence cases as follows, "41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade." Also the learned advocate for opposite parties relied upon the principles laid down in Kusum Sharma & Ors. vs. Batra Hospital and Medical Research Centre &Ors, CIVIL APPEAL no.1385, decided on 10th February 2010 and referred paras 58, 69 and 94 of the judgment.
19. Learned advocate for the complainant invited our attention to the guidelines on Consent from patients receiving treatment from Code of Medical Ethics by Medical Council of India. Also referred the Judgment of this State Consumer Disputes Redressal Commission in complaint case no CC/09/03 that issued guidelines to be followed by medical professionals.
20. Here we find that there was deficiency in obtaining consent which was not proper and informed one and in not writing the post-operative instructions to [A/15/1319] 11 the patient on discharge card. And hence we answer the POINT no. 1 C as AFFIRMATIVE.
21. As per the previous judgment of this State Consumer Disputes Redressal Commission in complaint case no. CC/09/03, the Principles/Guidelines regarding the informed consent, we reiterate the same with reference to this case also.
"32. Principles/ Guidelines In consonance the regulations of the Indian Medical Council, the guidelines required to be followed by medical professionals are summed up as follows:
A. Pre-operative consent for OPD surgical procedures is essential. As per the guidelines of any surgical intervention that involves risk of complications, even though minor and OPD procedure, consent of the patient is important. Absence of which is considered as "act of omission - negligence".
Section 7.16 Indian Medical Council of ethics regulations, 2002, states that," before performing an operation on the patient, the doctor should obtain in writing the consent from patient himself or the husband or wife, as the case may be."
B. The informed consent of the patient is necessary for any OPD or IPD surgical procedure.
C. Since the legal duty of medical professional starts with patient consultation, the same includes preoperative and postoperative care and formal communication with patient with documentary proof of the same.
D. Legal duty also includes post-surgical procedure care of the patient. Foreseeing the known complication and taking steps proactively to avoid as well as treat any complication is also part of "duty of care" by the medical professional."
22. It was contended by the advocate for appellant complainant that, the post- operative instructions were not given at the time of discharge, the OP no.2 did [A/15/1319] 12 not take steps to correct the effect of operation on complainant's right ear. Thus no steps were taken by OP no.2 to further treat loss of hearing in right ear. The complainant patient needed to be admitted again on 15thFebruary 2010 for complaints of giddiness and discharged on 18thFebruary 2010. Advocate for opposite parties submitted that for the complaints of giddiness, which usually is part of symptom complex of the disease from which the complainant was suffering, the patient was duly admitted and treated as indoor patient, injection Solu Medrol was given as a part of treatment. Thus opposite party no. 2 took all the steps that are necessary to treat the patient's symptoms. Page numbers 165 to 167 of the compilation, denotes the indoor treatment of patient. After perusal of the record, we find that opposite parties have taken the steps to treat further symptom Complex of the disease. Hence we answer POINT 1 D as NEGATIVE.
23. We have gone through the expert opinion obtained from the expert team of ENT doctors from JJ Hospital Mumbai, given on page no. 173 dated 23rd October 2013. As per the judgment and the order of the District Forum, learned forum had requested the JJ hospital for giving Expert Opinion in relation with whether there was medical negligence by opposite parties. The expert opinion given is read as follows, "In Stapes surgery Labyrinth is opened and could be associated with risk of giddiness and permanent hearing loss"
We do not find the purpose of expert committee opinion is met with, since the opinion is in medical language without coming out with the standard of care in such cases and whether in the instant case it has met the accepted standard of reasonable care and there was medical negligence or not. With the ambiguity in the wordings of expert opinion, the evidentiary value of the same is lost.
24. It has been also observed in another Judgement on Medical Negligence of this State Consumer Disputes Redressal Commission in FIRST APPEAL NO.
[A/15/1319] 13A/2015/903 as follows; "Rather it is expected that such for senior expert team of qualified medical professionals should report proactively their opinion about the main issue in an unbiased manner. Such a report loses credibility when it does not address the main issue and the report is given for the sake of reporting. Since the majority has not upheld the views of the minority opinion though right and scientifically correct, the report is not acceptable as it is".
25. "The Expert Committee Report from Government hospitals has important evidentiary value in Consumer Courts, depending on which the matters involving medical negligence and the deficiency in service are decided. The Expert Committees thus formed in District Government hospitals should follow following guidelines while opining on the medical negligence and submitting reports to the consumer courts.
Guidelines for Expert Committees (Ref: Indian J Surg. (January- February 2013) 75(1):47-49)
1. The committee should itemize the information provided to them to be reviewed.
2. The committee or the expert should provide a synopsis of the facts contained in the documentation using objective, non-slated language.
3. The experts should identify the issues pertaining to the standard of care of possible relevance to the clinical outcome.
4. For each issue identified in the report, the committee should opine whether standard of care was met.
5. If certain facts are missing or required any other additional information at the time of drafting the report and if the expert opinion is subject to change if other facts under query are provided, they should state clearly in the report.
6. The experts should provide reason for the basis of opinion with appropriate reference: a standard textbook, specific review article, and guidelines, widespread clinical practice in the expert's jurisdiction or personal experience.
[A/15/1319] 147. The experts should not stray beyond their expertise to provide an opinion on matters about which they are unable to demonstrate special qualification or experience.
8. The expert should provide the opinion in an unbiased manner.
9. The report should be comprehensive without being unnecessarily wordy and over-inconclusive. Its length should be dictated by the complexity of the matter under consideration. It is important to be clear at the outset what the issues in a particular case are. If the report has been requested from an outside agent, read the requesting letter from time to time to ensure that the issues are well in mind while writing the report and to check that they have been clearly addressed." We expect that the expert committee formed in Government Hospital should abide by the guidelines given above and provide clear-cut opinion as to whether the standards of reasonable care are met with or not.
26. As to POINT No.2 (Order of District Consumer Forum) Learned District Consumer Disputes Redressal Forum after going through the pleadings, indoor case records along with various investigations- audiometry reports, evidence in the form of expert medical opinion from JJ hospital Mumbai, medical literature placed on record and various case laws submitted by both the parties, came to the conclusion that the opposite parties have provided reasonable care to the patient of hearing loss on both sides due to the disease Otosclerosis and pleased to dismiss the complaint. We find that learned forum has not considered, the lack of informed consent and proper documentation in the form of advice at the time of discharge of the patient. We therefore set aside the order of learned District Forum and hold the opposite parties responsible forthe deficiency in service as has been pointed out by learned advocate of complainant, we accept the same. Answer to the POINT no.2 is NEGATIVE.
27. As to POINT No.3(Entitlement for compensation) As the appellant complainant has proved his case that the opposite parties are deficient in services given to the complainant, the complainant is entitled for [A/15/1319] 15 compensation for mental agony, trauma and inconvenience experienced. The opposite parties are hereby directed to pay the compensation as per final order. Hence the answer to the Point No.3 is AFFIRMATIVE.
28. As to POINT No.4 What Order?
As per the final order.
ORDER
1. The Appeal is partly allowed with litigation costs of Rs.10, 000/- (Rs. Ten Thousand only) to be paid by the opposite parties jointly and severally to the appellant complainant.
2. The impugned order of the District Consumer Disputes Redressal Forum is hereby set aside.
3. The opposite parties are her hereby declared deficient in services given to the complainant and direct them to pay compensation Rs. One Lakh only to the complainant jointly and severally towards the mental agony, trauma and inconvenience experienced, within two months from the date of this order with interest @ 9 % p.a. from the date of filing of complaint i.e. 30th January 2012 till realization, failing which the interest will be@12% p.a.
4. Free certified copies of the order be furnished to the parties forthwith.
Pronounced on 30th April, 2019.
[Justice A.P.Bhangale] President [Dr.S.K. Kakade] Member