National Consumer Disputes Redressal
1.Grewal Hospital, vs Sher Singh, on 11 November, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.946 of 2013 (From the Order dated 19.12.2012 in First Appeal No. 541/2012 of Punjab State Consumer Disputes Redressal Commission, Chandigarh) 1.Grewal Hospital, Grewal Lodge, Gill Road, Near Calcutta Works, Ludhiana Through its Proprietor Dr. Sanjeet Singh Grewal. 2. Dr. Sanjeet Singh Grewal, Proprietor Grewal Hospital, Grewal Lodge, Gill Road, Ludhiana, Punjab. ... Petitioners Vs. Sher Singh, S/o Late Sh. Sarwan Singh, R/o Akal House, B-21, 3558, New Janta Nagar, Gill Road, Ludhiana, Punjab. Respondent BEFORE: - HONBLE MR. JUSTICE D.K. JAIN, PRESIDENT HONBLE MR. VINAY KUMAR, MEMBER For the Petitioners : Mr. K.G. Sharma, Advocate With Dr. S.S.Grewal, (Petitioner No.2) in person. For the Respondent : In person. O R D E R
(Pronounced on day of November, 2014) D.K. JAIN, J. PRESIDENT This Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the Act) has been filed by the Opposite Parties in the complaint, questioning the legality and correctness of order dated 19.12.2012 passed by the Punjab State Consumer Disputes Redressal Commission at Chandigarh (for short the State Commission) in FA No. 541/2012. The State Commission has overturned the order, dated 28.03.2012, of the District Consumer Disputes Redresal Forum, Ludhiana (for short the District Forum) in Complaint No. 403 of 2010, dismissing the complaint filed by the Respondent herein. Petitioner No. 1 is the hospital, of which Petitioner No. 2, a consultant physician, and attending Doctor, is the proprietor.
2. Succinctly put, the background facts giving rise to the present Revision Petition are that on 06.06.2008 at about 10.00 a.m., son of the Respondent, aged about 52 years, was brought to the Hospital with a complaint of restlessness and excruciating pain all over the body. Petitioner No. 2 checked the blood pressure and took an Electrocardiogram (ECG), which revealed that the patient had suffered Acute Anterior Wall Myocardial Infarction (AMI). As per prescription slip, the patient was prescribed two tablets of Sorbitrate 10 mg., sublingual/STAT and two tablets of Clavix-AS STAT. He was referred to Hero Heart Centre, Ludhiana. Instead, the patient was taken to the Apollo Hospital in a car. Unfortunately, the patient died on way to the hospital.
3. The father of the deceased, Respondent herein, filed a complaint under Section 12 of the Act against the Petitioners alleging that: (i) instead of wasting 30 minutes in conducting ECG, etc, the vital parameters like temperature, pulse and blood pressure, etc. were not maintained; (ii) AMI was not managed by injecting medicine for opening the arteries and
(iii) neither oxygen was given nor was an ambulance or assistance of any person was provided while referring the deceased to a Cardiac Center. It was pleaded that due to the aforesaid negligence on the part of the Petitioners, the deceased could not reach Apollo Hospital and lost his life. A compensation of `10,00,000/- was prayed for.
4. The complaint was resisted by the Petitioners on the ground that neither Petitioner No. 2 was a Cardiologist nor was the Hospital equipped with necessary infrastructure, like ICU, etc. to handle the patients suffering from AMI and as per their policy the patient was immediately referred to a hospital, which was equipped to manage such cases.
It was also pleaded that the deceased was never admitted in the Hospital and was given first-aid as an out-door patient as per the standard protocol. He remained in the Hospital for barely 5 to 7 minutes. It was also stated that the Complainant had earlier filed a complaint, dated 18.07.2008, with the Medical Council of India and Medical Council of Punjab. Both the said Bodies had found that there was no negligence on the part of the treating doctor.
5. On evaluation of the material placed on record, the District Forum came to the conclusion that there was no negligence on the part of the Petitioners. It observed that the report of the Medical Council of Punjab as well as the Board had opined that the Petitioner No. 2 had acted as was required to be done in the given situation. He did his best to provide necessary aid and had rightly not administered the injection, as the same could be administered by a Cardiologist and the Hospital did not have complete infrastructure to control the complications.
6. Being dissatisfied with the order, the Complainant filed an Appeal before the State Commission. As noted above the State Commission has allowed the complaint with a direction to the Petitioners to pay to the Respondent a lumpsum compensation in the sum of `3,00,000/-, within one month of the receipt of the copy of order, failing which, the Petitioners have been directed to pay interest @ 9% p.a. from the date of the filing of the complaint till realization. The State Commission has come to the following conclusion:-
In view of above discussion and the law laid down, it is clear that respondent no. 2 doctor did not use proper skill and the knowledge expected from a doctor, to save the life and to ensure that the patient in critical condition reaches the hospital, where his ailment could be managed safely and that amounts to negligence and carelessness on the part of respondent no. 2 doctor. A little lapse on the part of respondent no. 2 doctor caused the loss of a precious life of the only son of the appellant and the respondents are liable to compensate him, although, the death cannot be compensated in any manner. The order passed by the District Forum is based on conjectures and surmises and is liable to be set aside.
Hence the present Revision Petition.
7. We have heard Learned Counsel for the Petitioners and the Complainant, who appeared in person. Essentially, the stand taken by the parties in the pleadings was reiterated.
Petitioner No. 2 relied on some medical literature in support of his submission that there is no conclusive opinion that routine use of inhaled oxygen in patients with acute AMI improves pain or mortality.
8. Thus, the question for consideration is whether the alleged failure to: administer oxygen to the deceased; give thrombolytic therapy for early reperfusion to manage AMI and provide Ambulance amounted to medical negligence and/or deficiency in service on the part of the Petitioners?
9. What constitutes medical negligence, based on the touchstone of Bolam Vs. Friern Hospital Management Committee, (1957), 1 WLR, 582 (the Bolams test), is well settled through a catena of decisions of the Honble Supreme Court, including in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1, Indian Medical Association Vs. V.P. Shantha and Ors., (1995) 6 SCC 651 and Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors. (2010) 3 SCC 480. Gleaned from these judgments, broad principles to determine what constitutes medical negligence, inter alia, are: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice (of clinical observation diagnosis including diagnostic tests and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field. In this connection, in Jacob Mathew(supra), a three Judge Bench, elaborating on the degree of skill and care required of a medical practitioner quoted Halsburys Laws of England (4th Edn., Vol.30, para35), as follows:-
35. The practitioner must bring to his task 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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way
10. We shall, therefore, examine the allegations of medical negligence on the touchstone of the aforenoted broad principles.
11. Regarding the first alleged act of negligence, viz.
non-administration of oxygen, it would be apposite to refer to some medical literature on the issue. In Cochrane Database of Systematic Reviews, the Authors have concluded that there is no conclusive evidence from randomized controlled trials to support the routine administration of oxygen to patients with AMI to improve pain or mortality. In the guidelines issued by the European Society of Cardiology for Management of AMI, although it is suggested that oxygen (by mask or Nasal prongs) should be administered to those who are breathless, hypoxic, or have heart failure, explaining as to how oxygen therapy might work, it is observed as follows:-
The rationale is that providing oxygen to a patient with AMI may improve the oxygenation of the ischaemic myocardial tissue.
The reasoning has strong face validity but there is a lack of a clear supporting evidence. A systematic review of human studies, including non-randomised studies did not confirm that the oxygen administration diminishes acute myocardial ischaemia. Indeed, some evidence suggested that oxygen may increase myocardial ischaemia (Nicholson 2004). Another recent narrative review on oxygen therapy (Beasley 2007) also sounds a cautionary note and references a randomized controlled study (RCT) conducted in 1976 (Rawles 1976). This RCT showed that the relative risk of death was 2.89 (95% CI 0.81 to 10.23) in the group receiving oxygen compared to the group receiving air.
While this is suggestive that oxygen may be harmful, the increased risk of death could easily be a chance finding.
It is also observed that there is pressing need to review whether oxygen currently used in routine practice is doing more harm than good.
12. Yet another paper on Oxygen Therapy in Acute Myocardial Infarction Good or Bad, published in August, 2013 reads as under:-
Most patients with acute coronary syndromes (ACS) receive oxygen therapy as part of their emergency treatment, initiated by paramedics during transfer and before their first contact with a physician. A survey among physicians involved with acute myocardial infarction cases found that 96% of their patients with ACS received oxygen therapy. About 50% of all responders believed that oxygen decreases mortality, 25% thought it helps to relieve pain and 25% thought it has no effect.
Many therapies and interventions are not based on proven benefit, but on anecdotal evidence, expert opinion and tradition. This is especially true for oxygen therapy, which is usually not questioned and has been used for over 100 years. We could argue that as long as it does no harm, it does not really matter whether we continue to provide oxygen in these situations. However, is it really harmless.?
From a physiological perspective treating ACS patients with oxygen may seem reasonable. In ACS there is a lack of myocardial perfusion and consequently a lack of oxygenation of the myocardium. Therefore, it seems logical to increase the oxygenation of the blood reaching the jeopardized myocardium by administering oxygen therapy. However, another theory argues that oxygen may increase microvascular resistance, leading to reduced coronary blood flow thus reducing cardiac output and increasing radical oxygen species, which can have multiple negative effect including radical oxygen species, which can have multiple negative effect including increased risk for arrhythmias and cell damage leading to heart failure.
13. In light of the above, we find it difficult to accept the allegation of medical negligence on the part of Petitioner No.2, on account of non-administration of oxygen to the deceased, more so, when there is no consensus on use of Oxygen, even as a therapy for AMI. We are also unable to agree with the Respondent that the decision of the Punjab Medical Council, taken in the Council meeting, dated 20.09.2009, opining that After going through the record of case, no negligence was found against the treating doctor (Dr. Grewal). Case be filed, needs to be ignored. According to the Respondent, as per the information obtained by him under the Right to Information Act, 2005, the Council had not examined the question as to why oxygen was not administered to the deceased.
At this juncture, we do not propose to go into the merits of the said report, more so, when there is no established research base, suggesting/recommending oxygen administration to diminish AMI.
14. Now adverting to the allegation that having noticed from the ECG that the deceased was under AMI, Petitioner No.2 ought to have injected some thrombolytic agent to dissolve clots, following coronary thrombosis, in order to open the infarct-related artery to carry blood supply to the heart muscles. The stand of Petitioner No.2 in this behalf is that he being a General Physician and the Hospital not equipped with the requisite equipment to manage and treat AMI cases, he immediately prescribed two tablets of Sorbitrate and Clavix AS, which according to him, is the standard protocol to be observed when a patient is suspected of AMI and is to be transferred to a cardiac center for Percutaneous Coronary Intervention (PCI). It has been his categorical assertion that without adequate monitoring facilities, it is not advisable to administer any thrombolytic substance.
15. In order to evaluate the rival stands, it would again be necessary to refer to some medical literature/ guidelines on the point. In an article by Experts on Cardiocare STEMI (ST elevation myocardial infarction), published recently in the Journal of the Association of Physicians of India, a Plan of Action/Protocol Flow Chart for early Reperfusion and Pharmaco-invasive approach in patients diagnosed as STEMI, the following line of action is suggested:
1. First Medical Contact (FMC) at the level of General Practitioner or Consulting Physician in private clinic/OPD.
All patients of chest pain/suspected of AMI on clinical diagnosis should receive prophylactic dose of 350 mg soluble/ chewable aspirin (non enteric-coated) immediately.
Immediate ECG recording (if available) and confirm the diagnosis of STEMI (if possible).
Clopidogrel (300 mg if patient age ≤75 years or 75 mg if age > 75 years) and Statins (Atorvastatain 40-80 mg) should be administered after confirmation of STEMI by ECG.
In order to achieve early reperfusion and obtain best benefit outcomes, it is very important for the GP/ Physician to take time dependent decision and transfer immediately (preferably by ambulance) to the nearest reperfusion capable centre (PCI Capable centers/ hospitals where fibrinolysis is possible) to avoid any further delay in STEMI treatment.
(Note: GP to avoid referring the patients to diagnostic centers as they take 3-4 hours of precious time for ECG reporting that may add to delay in timely intervention).
GP/Physician needs to maintain a list and contact details of nearby PCI Capable centers/ Non PCI hospitals for quick and immediate plan of action and to avoid delays in transfer.
Also, encourage the patients to carry baseline ECG if recorded.
GP/Physician should quickly apprise the patient/relatives regarding condition of the patient and gain their confidence towards preparedness for fibrinolysis/primary PCI.
This aids in patient information, reduces the apprehension and time for decision and avoids further delay in treatment.
16. The article, stated to be based on the opinion of over 150 experts from across India and belonging to different medical specialists, including interventional cardiology, recommends a time guided Protocol/Plan of Action for early fibrinolysis and implementation of a Pharmaco-invasive approach even at the level of general practitioners, non-PCI hospitals/nursing homes with intensive care facility.
17. What emerges from the article is that the recommended plan of action, in so far as it relates to administration of medicine, by a general physician or consulting physician, dealing with an AMI emergency at a non-PCI capable hospital is: (i) before confirmation of STEMI by ECG prophylactic, a dose of 350 mg soluble/chewable aspirin; (ii) after confirmation or even before, a dose of Clopidogrel 75 grm for a patient >75 years; and (iii) statins.
In the present case, admittedly immediately after the ECG, Tablets, Sorbitrate and Clavix-AS were given to the patient. Statins are not considered to be life saving drugs.
Tested on the touchstone of the aforestated recommendations, and in the absence of any material on record to show as to whether or not any thrombolytic substance could be administered even in the absence of adequate monitoring facility, we are of the opinion that immediate non-administration of fibrinolytic therapy alongside the contemporary adjunctive medical therapy, no medical negligence, as propounded in the decisions referred to above, can be attributed to the Petitioners on that account as well. We hold accordingly.
18. We shall now consider the third allegation, viz. non-availability of ambulance for transfer of the deceased to the nearest PCI center. In the Complaint as well as in the affidavit, filed as evidence, it was specifically pleaded that the Petitioners had failed to provide an ambulance for shifting the deceased from the Petitioner hospital to the Cardiac Center, and thus, the delay in the process proved fatal. The averment was denied in the affidavit filed by the Petitioners by merely stating that the hospital had only one ambulance, and at that point of time it was transporting some other patient. Except for the said bald statement, no supporting material was brought on record. As a matter of fact, it was stated in the affidavit that Just on listening that ambulance may take some time, the patient was taken away by the Complainant in own conveyance to the Cardiac Centre of own choice. It is manifest from the statement that, on their own showing, Petitioner No.2 or his staff did not make any effort to call the emergency department of PCI to which the deceased was being referred, for arranging ambulance equipped to ferry such patients. Having himself diagnosed that the deceased was under AMI attack, Petitioner No. 2 ought not to have waited for his own ambulance, if at all he had one. Knowing fully well that each minute, if not second, in the given situation was precious, he should have ensured that the deceased was transferred to a Cardiac Center as quickly as possible. We are convinced that on facts at hand, the Petitioners had failed to act swiftly, expected even from a general Practitioner or consulting Physician and a Non-PCI capable hospital. Alas, if an ambulance, equipped to transfer an AMI patient had been arranged by the Petitioners on time, perhaps, a precious human life could be saved. We are of the opinion that this was serious lapse on the part of the Petitioners, amounting to medical negligence and deficiency in service on their part. Thus, we uphold the finding of the State Commission on this issue.
19. To sum up, we are of the opinion that though no medical negligence has been established against the Petitioners in the emergent treatment of the deceased for AMI but medical negligence and deficiency in service stands proved against them for their failure to transfer the deceased to the Cardiac Care Center with the required alacrity.
20. For the aforegoing reasons, we sustain the finding of medical negligence on the part of the Petitioners as recorded by the State Commission, though slightly on a different line of reasoning. Resultantly, the Revision Petition fails and is dismissed accordingly.
21. It was pointed out that 50% of the decretal amount, deposited by the Petitioners in terms of order dated 05.04.2013, has already been released to the Respondent. If that be so, the balance amount of compensation, as awarded by the State Commission, shall be paid by the Petitioners to the Respondent within four weeks of receipt of a copy of this order, failing which, the said amount shall carry interest @ 9% p.a. from the date of filing of the Complaint till realization.
22. The Revision Petition stands disposed of with no order as to costs.
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(D.K. JAIN, J.) PRESIDENT ..
(VINAY KUMAR) MEMBER Yd/ar