State Consumer Disputes Redressal Commission
Consumer Education And Research ... vs Medical Superintendent on 20 April, 2021
Date of filing: 12.10.2012
Date of disposal: 20.04.2021
Days of disposal: 08 years 06 months 08 days
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
COURT NO: 05
Appeal No. 915 of 2013
1. Consumer Education & Research Society.
"Suraksha Sankool"
Sarkhej - Gandhinagar Highway
Thaltej, Ahmadabad.
2. Smt. Laxmiben Natwarbhai Chavda
Widow and legal heir of
Lt. Shri Natwarbhai M. Chavda
And as a Mother and Guardian of Minor
Bindu aged 10 years and Asha aged 8 years,
Village Sinaj
P.O. Sinaj
Ta: Mandal
Ahmadabad.
3. Smt. Chancharben M. Chavda
Mother and legal heir of
Lt. Shri Natwarbhai M. Chavda
Village Sinaj, P.O. Sinaj
Ta: Mandal, Ahmedabad. ... Appellants
V/s.
1. Medical Superintendent
Civil Hospital
Asarwa
Ahmedabad - 380016
2. Dr Shrenik Shah
Department of Urology
Civil Hospital
Asarwa, Ahmedabad - 380016 ... Respondents.
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CORAM: Dr. J.G. Mecwan, Presiding Member.
APPEARANCE: Shri T.S. Wadhawa, L.A. for the appellants.
Shri B.P. Kakadiya, L.A. for the respondents.
Order by Dr. J.G. Mecwan, Presiding Member.
Judgment
1. Being aggrieved by and dissatisfied with the judgment and order rendered by the Consumer Disputes Redressal Forum, Ahmedabad (City) on 10.02.2012 in Complaint No. 862 of 2008, the original complainant has filed the present appeal under Section 15 of the Consumer Protection Act, 1986 before this Commission. For the sake of the convenience, parties are hereinafter referred to by their original nomenclature.
2. To dispose of this appeal, few relevant facts are required to be mentioned: It is the case of the complainant that the deceased Shri Natwarbhai M. Chavda was admitted in Civil Hospital on 15.07.2005 with the a complaint of pain in stomach and at the time of admission deceased paid the registration amount of Rs. 150/- in Department of Urology wherein he was diagnosed with left renal kidney stone on 23.07.2005. Thereafter the deceased underwent PNCL (percutaneous Nephrolithotomy) operation for the left renal kidney stone on 25.07.2005 in the afternoon hours i.e. 1:40 p.m. to 4:00 p.m. Thereafter the operation was performed Page 2 of 18 R.I. DESAI A/13/915 under the head of respondent no. 02 Dr. Shrenik Shah, Head of department of Urology. Meanwhile during the operation; the deceased developed Paraplegia in both lower limbs of legs which he realized when the effect of anesthesia was wan out in post operative period between 4:30 pm to 5:00 p.m and Dr. Shrenik Shah referred the deceased to Neurophysician Dr. B.R. Patel. Thereafter the deceased was examined by Neurophysician Dr. B.R. Patel at 4:47 pm and in progress notes/ report Dr. B.R. Patel clearly motioned that "Operated case of left renal stone in today afternoon - soon after the patient develops respiratory distress - developed paraplegia". However Dr. B.R. Patel advised to Dr. Shrenik Shah for MRI of Darsal Spine of the deceased. Therefore, at 5:00 p.m. Dr. Shrenik Shah requested Medical Superintended to sanction MRI for deceased and same was sanctioned by Medical Superintended and after MRI report on 26.07.2005 from the progress note of Anesthesiologist; it is reported that "Post operative bilateral lower limb motor paralysis for lumber puncture" and lumber puncture was done in L3-L4 space in Right Lateral Position. Thereafter on 27.07.2005 Urology Department again referred deceased to Neuromedical Unit for expert opinion for post operative paraplegia. The deceased was also referred to Page 3 of 18 R.I. DESAI A/13/915 physiotherapy department, orthopedic department upto 09.08.2005 for necessary assessment and thereafter the deceased was then transferred to orthopedic department on 10.08.2005 in PPC Ward -1 and on 14.11.2005 the deceased was transferred to PPC Ward - II where he was again referred to physiotherapy department upto February 2006.
3. As per submission of complainant condition of the deceased did not improve and he was given discharge form hospital without giving the discharge certificate. Resultantly, the deceased had become permanently handicapped due to paraplegia which developed during surgery in both the limbs of the deceased. Hence the appellant asserted that it was the negligence on the part of the Department of Urology, due to which the deceased developed paraplegia in both the lower limbs of legs and therefore filed Consumer Complaint in Hon'ble District Consumer Commission, Ahmedabad (City) bearing C.C. No. 862/2008.
4. Being dissatisfied with the medical negligence shown on the part of the opponent, the complainant filed aforesaid consumer compliant before the learned District Commission at Ahmedabad (City) for deficiency in service and unfair trade practices of the opponent.
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5. After hearing learned advocates for both the parties and after considering the documents and evidence, the learned District Commission dismissed the complaint of the complainant.
6. Being dissatisfied with the impugned order of the learned District Commission, the original complainant has filed present appeal against the original opponent before this Commission on the ground stated in the appeal memo.
7. I have heard ld. advocate Mr. T.S. Wadhawa for the appellant and ld. Advocate Mr. B.P. Kakadiya for the respondents through Video Conference. I have also gone through the judgment submitted by appellants, impugned order passed by the learned District Commission, relevant papers, documents and the evidences on record.
8. First of all on behalf of the appellant ld. Advocate Mr. T.S. Wadhawa has appeared and vehemently argued out that, the Hon'ble District Commission has done wrong observation by not considering the deceased underwent PCNL (Percutaneous Nephrolithotomy) operation for the left renal kidney stone on 25.07.2005 in the afternoon hours and at that time the opponent No. 02 had performed the operation and during the time of the operation deceased developed Paraplegia in both the lower limbs Page 5 of 18 R.I. DESAI A/13/915 of legs and therefore it clearly shows the negligence part done by the operator doctor. It is further submitted by the ld. Advocate for the appellant that the Hon'ble District Commission has also not observed anything pertaining to the operated case of the left renal stone soon after the patient developed respiratory distress- developed Paraplegia and then immediately one Dr. B.R. Patel advised to opponent No. 02 for MRI of Darsal Spine of the deceased. Furthermore he also added that the Hon'ble District Commission should have observed that Medical Superintendent had already sanctioned the MRI for the deceased and after that MRI report on 26.07.2005 from the progress note of the Aneasthesiologist reported that "Post Operative bilateral lower limb motor paralysis for lumber puncture" and lumbar puncture was done in L3-L4 space in Right Lateral Position. He further argued that the Hon'ble District Commission has also not observed the Photostat copies of the progress notes and report of the deceased from the date of operation till the discharge.
9. Furthermore the learned advocate for the appellant has contended that looking to the permanently handicapped situation of the deceased due to Paraplegia which developed during the surgery in both limbs of the deceased, the learned District Commission has Page 6 of 18 R.I. DESAI A/13/915 failed to observed that due care was not taken by the respondents and therefore it is the clear case of medical negligence. Learned Advocate for the appellant also submitted that as per the judgment reported in VI (2009) SLT 164 in the case of Malaykumar Ganguly Vs. Dr. Sukumar Mukherjee and Ors. it has been held that in consumer Commission the provision of Evidence Act are not applicable and therefore the Fora under the Act are to follow the principle of natural justice and on this fact the order passed by the learned District Commission is improper and bad in law. The learned Advocate for the appellant further argued that the duties of the doctors towards the patients is the duty of the care in deciding what treatment is to be given and also a duty to take care in the administration of the treatment.
10. Learned Advocate for the appellant further submitted that Dr. B.R. Patel advised to sanction MRI for deceased and then deceased patient was kept in physiotherapy ward from 09.08.2005 and it was continued till February 2006 and thereafter the deceased patient was discharged without discharge certificate and with paralysis in both legs. It is further submitted by the learned advocate for the appellant that the deceased was Page 7 of 18 R.I. DESAI A/13/915 given discharge from the hospital without giving summary which shows negligence on the part of the respondents.
11. Learned Advocate for the appellant concluded that the order passed by the learned District Commission is not just and proper and is liable to be quashed and set aside by allowing this appeal.
12. Upon service of the notice, Ld. Advocate for the respondents Mr. B.P. Kakadiya appeared and has argued out that the complainant has not produced expert evidence and as per the settled law; complainant has to prove that which action of the opponent was not as per accepted medical practice. Learned advocate Mr. B.P Kakadiya further submitted that the patient was escaped from the hospital during his treatment and therefore hospital has not provided him discharge summary.
13. Learned Advocate Mr. Kakadiya concluded that the order passed by the learned District Forum is just and proper and therefore it should be confirmed by dismissing this appeal. In support of his arguments ld. Advocate Mr. B.P. Kakdia submitted medical literature and following judgment :-
Appeal No. 1143/2015 by State Commission Gujarat.
14. I have gone through the judgment of the learned District Commission wherein it has been decided that the complainant Page 8 of 18 R.I. DESAI A/13/915 has not proved the negligence of the treating Doctor and there is no evidence produced by the complainant that the conduct of the treating doctors falls below the standard of a reasonable competent practitioner has in his field. It was the submission of the learned Advocate Mr. T.S. Wadhawa for the appellant that the hospital has not provided discharge summary and therefore in the absence of discharge summary complainant could not obtained expert evidence.
15. I have gone through the medical literature submitted in this case; "Neurologic Complications in Percutaneous Nephrolithotomy" wherein it has been mentioned that in PCNL (Percutaneous Nephrolithotomy) procedure there are possibilities of some neurological complications and paraplegia is one of the complication.
16. Regarding negligence of the treating doctor in the judgment of Hon'ble National Commission in, III (2013) CPJ 681 (NC): "Bolam vs. Friere Hospital and management committee" following observation has been made:
"A doctor is not negligent, if he has acted in accordance with a Proper by practice accepted as a responsible body of medical men skilled that particular- art. Putting it the other way- round, doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same Page 9 of 18 R.I. DESAI A/13/915 time, that does not mean that a medical man can obstinately and pig- headedly carry on with some old technique contrary to what is really substantially the whole of informed medical opinion. (ii) When a doctor dealing with a sick man strongly believed that the only hope of cure was submission to a particular therapy, he could not be criticized if, believing the danger treatment to be minimal, did not stress them to the patient. involved in the (iii) In order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment."
In another land mark case, 'Jacob Mathew vs. State of Punjab and others' (2005 (6) SCC 1), the Hon'ble Apex Court, interalia, stated as follows : -
"A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competence person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence."
17. Considering the above observation of Hon'ble Apex Court, in the present case also there is no medical negligence as treating doctors have performed their duty and exercised an ordinary Page 10 of 18 R.I. DESAI A/13/915 degree of professional skill and competence and therefore they cannot be held guilty of medical negligence.
18. It is also an averment of learned Advocate for the appellant that the deceased patient was discharged without discharge certificate.
I have also gone through the record of learned District Commission which is on record but discharge summary is not available in the record. It is the submission of the learned Advocate Mr. Kakadia that the patient was escaped from the hospital therefore the discharged summary was not given. I have also gone through the medical record submitted in this matter and as per record on date 20.10.2005 patient was taken away by his brother from the hospital but thereafter patient has taken treatment in hospital as an indoor patient till February, 2006. Therefore looking to the medical record submitted in this case it is crystal clear that the patient was not escaped from the hospital and patient has taken treatment as an indoor patient in the hospital till February, 2006. Furthermore a letter dated 25.02.2008 of Civil Hospital Ahmedabad is also on record at page No. 229 (record of District Commission) wherein para- I, it has Page 11 of 18 R.I. DESAI A/13/915 been affirmed that the patient was hospitalized till February, 2006.
19. It is the submission of the learned Advocate Mr. Kakadia that complainant has not raised any point of discharge summary before the learned District Commission but affidavit of rejoinder submitted by the complainant in learned District Commission is available in the record of District Commission at page No. 254 wherein complainant has mentioned as under:
"With regard to sixth para of paragraph No. 04 of the written statement of the opposite parties are not true and same are denied by the complainants. It is stated by the complainant that at the time of discharge patient was not handed over the official discharged summary. This is also a deficiency in service on the part of the opposite parties for not giving discharge summary papers to the patient at the time of discharge. It is further stated by the complainant that if the opposite parties would have given the discharge summary paper to the patient the same would have been annexed in the present complaint."
20. Regard to the providing of discharge summary and medical treatment papers, Medical Council of India has framed rules.
The Medical Council of India has imposed an obligation on Hospitals as per the regulations notified on 11th March 2002, Page 12 of 18 R.I. DESAI A/13/915 amended up to December 2010 maintain the medical record and provide patient access to it. These regulations were made in exercise of the powers conferred under Section 20A read with section 33(m) of the Indian Medical Council Act, 1956 (102 of 1956) by the Medical Council of India with the previous approval of the Central Government, relating to the Profession Conduct, Etiquette and Ethics of registered medical practitioner, namely:-
Maintenance of Medical Records:-
1.3.1 Every physician shall maintain the medical record of his/her indoor patients for a period of three years from commencement of the treatment in a standard proforma laid down by the Medial Council of India and attached as Appendix 3.
1.3.2 If any request is made for medical records either patients/authorized attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours."
Furthermore National Accreditation Board for Hospitals and Health care Provides (NABH) has also framed standard discharge process in year 2020 as shown below: Page 13 of 18
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AAC 14. The Organization defines the content of the discharge summary.
OBJECTIVE ELEMENTS a. A discharge summary is provided to the patients at the time of discharge.
b. Discharge Summary contains the patient's name, unique identification number, name of the treating Doctor, date of admission and date of discharge.
c. Discharge summary contains the reasons for admission, significant findings and diagnosis and the patient's condition at the time of discharge.
d. Discharge summary contains information regarding investigation results, any procedure performed, medication administered, and other treatment given.
e. Discharge summary contains follow-up advice, medication and other instructions in an understandable manner. f. Discharge Summary incorporates instructions about when and how to obtain urgent care.
g. In case of death, the summary of the case also includes the cause of death.
Furthermore National Human Rights Commission (NHRC) has also framed "Charter of Patient's Rights" which is available on the website https://nhrc.nic.in/ wherein one of the right of patients is stated below: -
Rights of Description of rights and Reference Patients associated duty bearers Right Every patient or his 1. Annexure 8 of to caregiver has the right to standards for Hospital records access originals / copies level 1 by National and of case papers, indoor Clinical Establishments reports patient records, Council set up as per investigation reports Clinical Establishment (during period of Act 2010 Page 14 of 18 R.I. DESAI A/13/915 admission, preferably within 2. MCI Code of Ethics 24 hours and after discharge, section1.3.2 within 72 hours). This may 3. Central Information be made available wherever Commission judgment, applicable after paying Nisha Priya Bhatia Vs. appropriate fees for Institute of HB&AS, GNCTD, photocopying or allowed to be 2014 photocopied by patients at 4. The Consumer Protection their cost. Act, 1986 The relatives / caregivers of the patient have a right to get discharge summary or in case of death, death summary along with original copies of investigations. The hospital management has a duty to provide these records and reports and to instruct the responsible hospital staff to ensure provision of the same are strictly followed without fail.
In Raghunath Raheja Vs. Maharashtra Medical Council, AIR 1996 Bombay High Court upheld the right of patient to medical record very emphatically Judges M Shah and A Savanth stated:
"We are of the view that when a patient or his near relative demands from the Hospital or the doctor the copies of the case papers, it is necessary that the Hospital authorities and the doctors concerned to furnish copies of case papers to the patient or his near relative. In our necessary for the Medical Council to ensure that necessary directions are given to all the Hospitals and the doctors calling upon then to furnish copies of the case papers and all the relevant documents pertaining to the patient concerned. The hospitals and the doctors may be demanding necessary charges for supplying the copies of such documents to the patient or the near relative. We, therefore, direct the first respondent Maharashtra Medical Council to issue necessary circulars in this behalf of all the hospitals and doctors in the State of Maharashtra. We do not think that hospital or the doctors can claim any secret confidentiality in the matter of copies of the case papers patient. These must be made available to him on demand payment of usual charges. If necessary the Medical Council may issue a press-note in this behalf giving it wide publicity in all the media. "Page 15 of 18
R.I. DESAI A/13/915 Looking to the above rules of Medical Council of India, NABH, NHRC and observation of Hon'ble Bombay High Court it is crystal clear that it is the duty of the hospital/ Doctor to provide discharge summary and medical papers within 72 hours of discharge.
21. In the instant case, on verifying the records it appears that the hospital has not provided discharge summary to the patient and hence in the considered opinion of this Commission; by not providing discharge summary to the patient, opponent hospital has shown deficiency in service.
22. It is the main contention of the opponent hospital that complainant has not produced any expert evidence that to prove negligence of treating doctor and learned District Commission has also considered this aspect and facts of the compliant. On the other hand it is an averment of the complainant that discharge summary was not given and therefore complainant could not obtained expert evidence.
23. In case of Dr. Shyam Kumar Vs. Rameshbhai Harmanbhai Kachhiya 2002; 1 CPR 320, I (2006) CPJ 16 (NC). The Hon'ble National Commission said that not producing Page 16 of 18 R.I. DESAI A/13/915 medical records to the patient prevents the complainant from seeking an expert opinion.
24. Looking to the above facts and on examining the record submitted in this case it appears that opponent hospital has not provided discharge summary to the patient and in the absence of this important medical paper, complainant could not obtained expert evidence and therefore in the considered opinion of this Commission for not providing discharge summary the complainant is required to be compensated with costs and hence if opponent hospital pay Rs. 60,000/- to the complainant as a compensation for the deficiency in service for not providing discharge summary then it would meet end of justice.
25. In view of the above discussion, in the opinion of this Commission the order of the learned District Commission is not just and proper and it is required to be interfered by this Commission. Therefore the following final order is passed.
ORDER
1. The present appeal is hereby partly allowed.
2. The order passed by the learned District Commission, Ahmadabad (City) dated 10.02.2012 rendered in C.C No. 862 of 2008 is hereby quashed and set aside.
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3. Opponent Hospital is hereby ordered to pay Rs. 60,000/- (Rupees Sixty thousand only) to the appellant/original complainant for the compensation for not providing discharge summary as per extent rules.
4. The opponent Hospital is ordered to pay Rs. 10,000/- (Rupees ten thousand only) to the present appellant/original complainant as costs of the Appeal/Compliant and shall bear its own cost if any.
5. Opponent Hospital shall comply with this order within 60 days from the date of this order.
6. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounce in the open Court today on 20th April, 2021.
[Dr. J.G.Mecwan]
Presiding Member
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