State Consumer Disputes Redressal Commission
Seema Garg vs Dr. Ram Manohar Lohia Hospital on 31 January, 2022
CC/324/2013 D.O.D: 31.01.2022
SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Date of Institution: 27.05.2013
Date of Final Hearing: 21.12.2021
Date of Decision: 31.01.2022
COMPLAINT CASE NO.- 324/2013
IN THE MATTER OF
1. SMT. SEEMA GARG
W/O Sh. Sunil Garg
2. SH. SUNIL GARG
S/O Sh. M. S. Garg
Both r/o
B-169/170, First Floor,
Nanhey Park, Uttam Nagar,
New Delhi
...Complainants
(Through: ANKIT KAPOOR AND YAVANICA S. KAPOOR,
Advocate)
VERSUS
1. THE SUPERINTENDENT,
DR. RAM MANOHAR LOHIA HOSPITAL,
New Delhi-110001
2. DR. A. MARIA,
DR. RAM MANOHAR LOHIA HOSPITAL,
New Delhi-110001
...Opposite Parties
(Through: SATINDER TIWARI, Advocate)
DISMISSED PAGE 1 OF 13
CC/324/2013 D.O.D: 31.01.2022
SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Shri Sandeep Kapoor, Counsel for Complainants.
Shri Satinder Tiwari, Counsel for Opposite Parties.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. Brief facts of the case as per the pleadings of the parties are that the Complainant No.1 was admitted to Gupta Nursing Home on 08.06.2011, where, she delivered a female baby within 24-26 weeks of pregnancy, hence, the baby was shifted to the nursery of the Opposite Party on 10.06.2011. The baby weighed around 715 grams at the time of her admission with the Opposite Party and was discharged after 45 days of treatment on 25.07.2011, and weighed around 1200 grams at the time of discharge. During the entire period, the baby was under the care of the Opposite Party. At the time of discharge, the Complainants were advised follow up in the OPD. Following the said advise, the Complainants got examined their baby in the High Risk Clinic on 02.08.2011 vide OPD no. 5177, however, no retinal scanning was done. On 23.08.2011, the Complainants visited the Ophthalmology Department of the Opposite Party and B- scan was conducted, wherein, it emerged that the baby of the Complainant was suffering from "Grade IV-ROP" and she was then referred to AIIMS for further treatment, where, the Complainants DISMISSED PAGE 2 OF 13 CC/324/2013 D.O.D: 31.01.2022 SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL were informed that the baby was suffering from "Bilateral Stage-V ROP" and chances of revival of eye were minimal.
2. On a subsequent visit to the Ophthalmology Department of AIIMS, the Complainants during the course of discussion were informed that had the retinal scanning conducted within 4 weeks after birth, the present situation could have been avoided.
3. It is the case of the Complainants that despite being aware of the known complications of premature birth, the Opposite Party was totally negligent as they failed to get the ROP screening conducted upon the baby within 4 to 6 weeks of her birth, due to which, the baby is now completely blind. It has also been alleged that due to the gross negligence on the part of the Opposite Party, the Complainant's baby has suffered a loss for her entire lifetime.
4. In support of her case, the Complainants have relied upon Medical Literature on Premature Birth Complication of American Pregnancy Association, Screening Guidelines for Retinopathy of Prematurity and also Medilineplus Medical Encyclopaedia, wherein, it has been held that the babies born prematurely should undergo ROP scanning, generally within 4 weeks of their birth, which, the Opposite Party failed to do in the present case.
5. The present complaint has been filed by the Complainants alleging Deficiency of Services by the Opposite Party due to gross negligence and carelessness, which led to the loss of vision of the baby of the Complainants leading to mental agony and pain to the Complainants and their baby, whereby, the following reliefs have been claimed:
A. Direct the respondents to pay to the complainant a sum of Rs. 50,00,000/- (Rupees fifty lakh only) together with DISMISSED PAGE 3 OF 13 CC/324/2013 D.O.D: 31.01.2022 SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL interest at the rate of 24% per annum from the date of accrual till the date of realisation by the complainant; and B. Direct the respondents to immediately pay to the complainant a sum of Rs. 10,00,000/- (Rupees ten lacs only) by way of interim relief, and C. Costs may also be awarded in favour of the complainant and against the respondents.
D. Any other or further relief, which this Hon'ble Forum may deem fit and proper in the facts and circumstances of this case, may also be granted in favour of the complainant and against the respondents.
6. Notice of the present Complaint was issued to the Opposite Party, who has filed its reply to the Complaint. In its reply, the Opposite Party has submitted that there was no negligence on its part and the baby was given proper treatment as per the standards acceptable in regular course. It has been further submitted that the allegation that no ROP screening was conducted after 4-6 weeks of birth is absolutely without merit since the discharge summary is reflective of the fact that within 5 days of the admission of the baby i.e. on 15.07.2011, ROP screening was conducted and the reports were stated to be normal. Contending that since the moot allegation of the Complainant is the failure of the Opposite Party to conduct the ROP screening within 4-6 weeks of the birth of the baby, which has been negated relying on the Discharge Summary, the Opposite Party sought dismissal of the Complaint.
7. The Complainants filed their Rejoinder rebutting the Written Statement filed by the Opposite Party. All the parties filed their DISMISSED PAGE 4 OF 13 CC/324/2013 D.O.D: 31.01.2022 SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL Evidence by way of Affidavit in order to prove their averments on record. After the completion of the pleadings, the case was listed for final arguments.
8. We heard the Counsel for the parties and perused through the material on record including the Written Arguments filed on behalf of the parties.
9. Before delving into the merits of the case, we deem it appropriate to refer to the law on the cause. The Hon'ble Apex Court, after taking into consideration its previous decisions on Medical Negligence, has consolidated the law in Kusum Sharma and Ors. vs. Batra Hospital and Medical Research Centre and Ors. reported at (2010) 3 SCC 480, wherein, it has been held as under:
"94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially 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.
DISMISSED PAGE 5 OF 13 CC/324/2013 D.O.D: 31.01.2022
SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL 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.
DISMISSED PAGE 6 OF 13 CC/324/2013 D.O.D: 31.01.2022
SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL 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.
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind. "
DISMISSED PAGE 7 OF 13 CC/324/2013 D.O.D: 31.01.2022
SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL
10. In cases wherein the allegations are levelled against the Medical Professionals, negligence is an essential ingredient for the offence, which is basically the breach of a duty exercised by omission to do something which a reasonable man would do or would abstain from doing. However, negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence and they are entitled to protection so long as they follow the same.
11. Reference can also be drawn to the dicta of this Commission in FA-745/2013 titled Shamsher Khan vs. Heart Center & Ors. dated 28.10.2021, wherein, it has been held as under:
"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 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. DISMISSED PAGE 8 OF 13 CC/324/2013 D.O.D: 31.01.2022
SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL h. Mal-practice by the doctors, such as uncalled for pathological reports or investigations prescribed. "
12. Returning to the facts of the present case, it has been contended on behalf of the Complainants that the Hospital as well as the Opposite Party No. 2 are liable for Deficiency of Service due to the fact that the treatment which was to be followed as per settled practice on babies born prematurely, was not followed since, no ROP screening was performed, which would have saved the baby from complete blindness.
13. It is imperative to refer to literature on the cause. The AIIMS- NICU protocols 2010 has discussed the Retinopathy of Prematurity as follows:
"Retinopathy of prematurity (ROP) occurs due to abnormal proliferation of retinal vessels. The most important risk factors which predispose to development of ROP include oxygen therapy, anemia needing blood transfusion, sepsis and apnea. Very low birth weight neonates, those born at 32 weeks of gestation and other ≤ preterm neonates with risk factors must be screened for ROP. As a general rule first screening should be done at 1 month of postnatal age. If screening detects ROP not needing treatment follow up should be planned according to location and stage of ROP. Better visual outcomes are observed with earlier treatment at lower threshold. Peripheral retinal ablation with diode laser under adequate analgesia and sedation is the preferred method for treatment of severe ROP. Guidelines regarding the procedure of dilatation, ophthalmic examination and treatment (if required) have been provided in the protocol.
DISMISSED PAGE 9 OF 13 CC/324/2013 D.O.D: 31.01.2022
SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL Close co-operation between the ophthalmologist and neonatologist is essential for a successful management of ROP.
When and how often to screen?
First screening examination should be carried out at 31 weeks of gestation or 4 weeks of age, whichever is later (Table 3). A good rule to remember is first screening at 1 month of postnatal age in babies born at >26 weeks of gestation age. "
14. From the aforesaid, it flows that ROP is a complication which is related to pre-mature birth, occurring due to abnormal proliferation of retinal vessels. Babies which are born before 32 weeks of gestation should be screened for ROP within one month of their birth, in order to give the proper treatment so that the vision of the baby can be saved.
15. The perusal of the record before us reflects that the baby was born after 24-26 weeks of pregnancy which is not in dispute. However, it has been alleged by the Complainants that no ROP screening was conducted by the Opposite Party which led to the loss of eye-sight of the baby, making her completely blind.
16. Per contra, the Opposite Party has contended that the discharge summary is reflective that the ROP screening was carried out on 15.07.2011 and the reports were stated to be normal. In their Rejoinder the Complainants have submitted that the facts put forth by the Opposite Party are false and frivolous, since the discharge summary is silent about any report with respect to the ROP screening.
DISMISSED PAGE 10 OF 13 CC/324/2013 D.O.D: 31.01.2022
SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL
17. The perusal of the Discharge Summary, which is a document forming part of the Complaint itself, reflects that on 15.07.2011, the baby was recommended for ROP screening by the examining doctor of the Opposite Party. The comments of the examining doctor are also there adjacent to the recommendation, though not in detail, wherein, it has been marked as (n) denoting that the test reports of the ROP screening were normal. Along with the said screening, the discharge summary is reflective that the blood group was also ascertained on the same date to be as O Positive.
18. Thereafter, the baby was recommended follow up visits in the High Risk Clinic, in furtherance of which, when the baby was examined on 02.08.2011 in the High Risk Clinic, the examining doctor again recommended ROP screening with the remarks ROP at next visit along with certain other treatments/medicines.
19. The facts are clear, that when the subsequent ROP screening was conducted on 23.08.2011 at the Opposite Party's Ophthalmologist Department, the baby was diagnosed with Grade IV ROP and was referred to AIIMS, where her diagnoses revealed that she was suffering from ROP.
20. Hence, the entire factual matrix is reflective that the Opposite Party was cautious enough to take the necessary measures and to operate upon the Child with the regular acceptable treatment applicable for babies born prematurely. The baby was screened for ROP within seven days of her birth i.e. on 15.07.2011, and subsequently, on 23.08.2011, as per the acceptable medical practices of that period, which has been satisfactorily established on the basis of unblemished documentary evidence.
DISMISSED PAGE 11 OF 13 CC/324/2013 D.O.D: 31.01.2022
SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL
21. To say that the Opposite Party did not carry out the proper treatment as per established medical practices is contrary to the facts of the case. It is well established that in every case where the treatment is not successful it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. (Reference: Harish Kumar Khurana vs. Joginder Singh and Ors. reported at AIR 2021 SC 4690)
22. In totality and with due regard to the settled law in this regard, we are of the view that the doctors had performed their duties and exercised an ordinary degree of professional skill and competence, for which, they cannot be held guilty of medical negligence. In the given facts and circumstances and keeping into consideration the principles as laid down by the Hon'ble Apex Court in Kusum Sharma (supra) and also Harish Kumar Khurana (supra) we are of the considered view that there is nothing on record to prove the liability of the Hospital and its doctor for Medical Negligence, and also that there exists no Deficiency of Service on their part.
23. The Complaint stands dismissed, with no order as to costs.
24. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
25. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be DISMISSED PAGE 12 OF 13 CC/324/2013 D.O.D: 31.01.2022 SEEMA GARG & ANR. VS. SUPERINTENDENT, DR. RAM MANOHAR LOHIA HOSPITAL uploaded forthwith on the website of the commission for the perusal of the parties.
26. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
31.01.2022 DISMISSED PAGE 13 OF 13