State Consumer Disputes Redressal Commission
Jagdish Kumar Arora, vs Khosla Medical Institute & Research ... on 12 September, 2008
Order Reserved IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986.) Date of Decision: 12-09-2008 COMPLAINT No.C-386/1999 1. Shri Jagdish Kumar Arora, -Complainant No.1 R/o. 112-L, Model Town, Through Sonepat, Haryana. Ms. Shobha, Advocate. 2. Master Kuldip Kumar Arora -Complainant No.2 (Minor), S/o. Jagdish Kumar Arora, R/o. 112-L, Model Town, Sonepat, Haryana. Through Complainant No.1 Father & Natural Guardian. Versus 1. Khosla Medical Institute & -Opposite Party No.1 Research Society, Through Through Brig. J.M. Lal, Mr. D.D. Gupta, Block-B, Pocket-P, Advocate. Shalimar Bagh, Delhi. -Opposite Party No.2 2. Dr. G. Manvani, Through On Duty Doctor, Mr. Sanjeev Mehta, Khosla Medical Institute & Advocate. Research Society, Through Brig. J.M. Lal, Block-B, Pocket-P, Shalimar Bagh, Delhi. 3. Dr. B. Mohan, -Opposite Party No.3 Senior Doctor, Through Khosla Medical Institute & Mr. Sanjeev Mehta, Research Society, Advocate. Through Brig. J.M. Lal, Block-B, Pocket-P, Shalimar Bagh, Delhi. 4. Medical Store, -Opposite Party No.4 Khosla Medical Institute & Research Society, Through Brig. J.M. Lal, Block-B, Pocket-P, Shalimar Bagh, Delhi. 5. Batra Hospital & Medical -Opposite Party No.5 Research Centre, 1-Tughlakabad Indl. Area, New Delhi. 6. Jaipur Golden Hospital, -Opposite Party No.6 Rohini, Through Delhi. Ms. Deepa Chacko, Advocate. 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 (ORAL):
The complainants are husband and son of the deceased patient Chander Kanta, who died due to alleged medical negligence on the part of Opposite Party (in short O.P) No. 1 to 4. Alleging deficiency on the part of the OPs the complainants have through this complaint sought compensation of Rs. 18,50,000/- on various counts.
2. The allegations in brief are that the patient Chander Kanta, a middle aged lady, was a patient of arthritis since 1991 and was getting treatment from Karnal and Sonepat till 1997. In the year 1997 the O.P.1 hospital came in the panel of FCI where the complainant No.1 was employed and working at Sonepat. On 27-11-1997 the complainant got his wife referred to O.P.1 Hospital and got her admitted there for treatment. On 10-12-1997 the doctors informed the complainant that the patient was responding well to the treatment would be discharged in a week or so. However, on 12-12-1997 O.P.2 and 3, the doctors working with O.P.1 Hospital informed that the patient had developed fungal infection. On 16-12-1997 the patient was shifted to the ICU of OP.1 Hospital and was given two units of blood but her condition started deteriorating. On 18-12-1997, O.P.2 doctor asked the complainant to purchase an Inj.
Leucomax which was not available with O.P.4-Medical Store. However, the doctor on the pretext that if the injection was not available at their medical store then it would not be available any where else and that the injection was necessary for treatment asked the complainant to shift the patient to some other hospital without even suggesting the name of another hospital.. Ultimately one resident doctor of O.P.1 accompanied the complainant and the patient to Batra Hospital-OP-5 where she was admitted in a very serious condition and there she was treated for Pancytopenia. It was recorded in their OPD card that the patient had developed this disease in the last 2-3 days. However, on the next day itself the patient was shifted to O.P.6-Batra Hospital, where she breathed her last on 23-12-1997.
3. It is the case of the complainant that the fungal infection developed due to negligence of O.P No. 1 to 3 i.e. the Hospital and the treating doctors, and due to defective medicines supplied by O.P.4-Medical Store.
4. In their defence, O.P. 1 to 3, denied all the allegations of medical negligence or deficiency in service and have contended that the patient was an acute case of arthritis and was taking steroids before coming to O.P.1 Hospital and on admission after various investigations she was found to be a case of advanced stage of rheumatoid arthritis and hypertension and was treated with the well known drug Methotexrate. This medicine was to be administered in three doses but as the patient started showing symptoms of side effects the third dose was not administered. As per the investigations conducted, the side effect of the said medicine resulted in recession of TLC and Hb and to raise the TLC three doses of Inj. Leucomax were prescribedbut the injection was not available alt O.P.4 Medical store and the complainant refused to procure this injection from outside as the cost was around Rs. 6000/-. Under these circumstances, the complaint was asked to take the patient to some other hospital and the patient was referred to AIIMS/Batra Hospital.
5. As regards the fungal infection the O.Ps contended that the fungal infection existed when the patient was admitted for treatment of arthritis and further that as per the case of the complainant itself the fungal infection was caused due to the injection supplied by the O.P.4-Medical Store and hence they are not liable for the same since the O.P.4 has no connection with them and only space has been provided by O.P.1 to run the store.
6. However, in its reply O.P.4-Medical store has taken the stand that the Inj. Leucomax is available with only such chemists who are designated by the manufacturer and hence the same was not available with them. Since the complainant was not required to make payment over the counter for the medicine as he was to be reimbursed by his employer as per agreement between O.P.1 and O.P.4 the complainant had approached O.P.4 for the said injection and otherwise there was no compulsion for the complainant to buy it from O.P.4 and was at liberty to procure it from outside.
7. O.P.5 Batra Hospital in their reply stated that the patient was brought to their hospital on 18-12-1997 at 4.30 PM and the provisional diagnosis was Osteoarthritis and Pancytopaenia, however, the patient left the hospital on 19-12-1997 itself and hence they are not liable in any manner whatsoever.
8. O.P-6 Jaipur Golden Hospital in its reply contended that the patient was admitted to the hospital on 19-12-1997 and was provided appropriate medical aid but could not save her and breathed her last on 23-12-1997.
9. From the allegations of the complainant as well as the versions of the O.Ps 1 to 6, it is clear that the complainants main allegation of negligence in shifting the deceased patient is against O.P1 Khosla Medical Institute and the doctors working there who attended to the deceased.
The crux of the allegations is firstly that in O.P.1- Medical Institute the deceased was admitted for rheumatoid arthritis on 27-11-1997 and was given treatment for the same. On 14-12-1997 the deceased complained of some itching and pain and the doctors noticed some fungal infection either due to expired or wrong injection which was purchased from the medical store, situated in the premises of O.P.1-Khosla Institute, which has been arraigned as O.P.4.
10. On 14-12-1997 the deceased developed severe fever and her body turned blue. She was shifted to ICU. The doctors diagnosed the condition as pancytopania, i.e. leakage of blood vessels causing severe anemia to the patient. However, when the complainants could not bring the required Inj. Leucomax for the treatment of the condition as it was not available either with O.P.1 hospital or with the O.P-4 Chemist Shop or anywhere else, O.P.1 forced the patient to be shifted to some other hospital in the midnight itself , where after the complainants went to O.P.5 Batra Hospital. Since O.P.5 diagnosed the disease as Osteo Arthritis with pancytopania, she left the hospital on 19-12-1997 and went to O.P.6- Jaipur Golden Hospital, where she breathed her last.
11. In their defence of O.P.1 and the doctors O.P-2 and O.P-3 have averred that the patient was a case of acute arthritis and was taking steroids and on admission after conducting various tests she was found to be suffering from rheumatoid arthritis and Hypertension and as per history she had been suffering from the disease for the last 8-10 years with deformed joints.
She was administered well known drug Methotrexate. The line of treatment was explained to the patient and her informed consent was obtained. The rate complications of the drug Methotrexate is a condition known as pancytopania, which means decrease in Hb., platelets, TLC and DLC. On 29-11-1997 the first dose of methotrexate was administered in the form of three tablets to which the patient responded well. The second dose of medicine which was to be administered weekly was done on 07-12-1997 and before that also all the relevant investigations were carried out to see whether the first dose had caused any adverse effect or not. However, before the third dose could be administered, on 10-12-1997 the patient complained of itching near her genitals and a Gynaecologist was called. The Gynaecologist opined that she was suffering from Taenia corporis with Taenia Crursis, i.e. ring worm infection of the skin. However, the Gynaecologist did not tell the cause of this ring worm infection. Before the third dose of the medicine methotrexate was due the side effects were seen and since Hb. Count had decreased as the medicine did not suit the patient, the third dose was not given and the patient was shifted to ICU where the patient was transfused three units of blood. In the ICU the patient was diagnosed with drug induced pancytopania.
The doctors asked the relatives of the patient to arrange Inj. Leucomax which was not available in the hospital or in the medical store. Since this injection was not made available by the patients husband nor was it available in the hospital or the medical store the patient was advised to shift to some other hospital where the said injection was available as she was also refusing to take medicines and was not even allowing to take temperature, which is evident from the case history/medical record and her husband had lost his faith in the hospital due to reaction of the drug and requested the patient to be shifted to some other hospital. Consequently the patient was shifted to Batra Hospital in the Ambulance of O.P.1 accompanied by a doctor of O.P.1 Hospital.
12. Thus O.Ps denied allegation of any deficiency in service or negligence on the part either of the O.P1 hospital or the doctors O.P 2 and 3. However, in the subsequent Synopsis submitted along with the record of the hospital the O.Ps have explained the treatment given to the patient.
13. From Batra Hospital the deceased was shifted to Jaipur Golden Hospital where she died. O.Ps have also referred to the death summary of the patient issued by O.P.5-Jaipur Golden Hospital which stated the cause of death as drug induced pancytopania and not fungal infection.
14. The Skin Specialist of Jaipur Golden Hospital also had seen the patient and his report is that patient was suffering from skin fungal infection.
15. In support of the contention that Methotrexate is a drug of choice for treatment of Rheumatoid Arthritis and the rare side effect of this drug can be pancytopania, the Ld. Counsel for the O.P.1 has produced the Medical literature by Lawrance, Book of Pharmacology, under the title Drug Treatment for Rheumatoid Arthritis and the side effect of Methotrexate. The following extracts are relevant:-
Methotrexate is used widely as a DMARD (disease modifying anti-rheumatic drug) for rheumatoid arthritis, psoriatic arthritis and for its steroid sparing effects in many other conditions. Pancytopenia may occur as an idiosyncratic response at any time or may be provoked by co-administration of another anti-folate drug.
16. On behalf of O.P.1, the Ld. Counsel has contended that there are no allegations against the hospital but against the doctors who are working there and medical store for supplying spurious or expired drugs and also on account of the required medicine not being available either with the hospital or the medical store.
17. It is further contended that O.P.4- Medical Store is altogether a different entity and only space has been provided to this store and has no connection whatsoever with O.P.1- Hospital and it is just like a Chemist shop in the premises for the facility of the patients.
18. The Ld. Counsel for O.P.1 further contended that as per the Medical Journal Arthritis & Rheumatism of American College of Rheumatology, studies indicated that:-
Five long term prospective studies reported toxicity data on patients who had been treated with MTX for at least 13 weeks. A total of 511 patients were included in the prospective trials, yielding an overall incidence of pancytopenia of 1.4% (7 of 511). Of the 70 cases reported 12 patients died (17%). Most of them had impaired renal function, hypoalbuminemia, concurrent infection and or concomitant medication with more than 5 drugs. Conclusion: Pancytopenia is not an uncommon side effect of low dose pulse MTX therapy in R.A. It can lead to serious complications including death.
19. Ld. Counsel for O.P. 2 and 3, who are the treating doctors of O.P-1 Hospital, further contended that in any hospital the medicine to be administered is either to be supplied by the hospital or to be procured by the relatives of the patient (or the patient) and that O.P.2 and 3 doctors were only visiting doctors of O.P.1 Hospital.
20. While refuting the aforesaid contentions of O.P.1, 2, 3 and 4 as to the side effect of the drug methotrexate being not fungal infection but pancytopania, the Ld. Counsel for the complainant has pointed out certain contradiction in the reply of the O.Ps. as well as in the oral arguments being advanced before us. On the one hand, the O.P.1 has stated that the patient was admitted for acute Rheumatoid Arthritis whereas in Page-57 Para-5, the O.Ps have stated that the patient was already having fungal infection when she was admitted in the hospital.
21. On the concept of medical negligence we have culled out certain criteria from the ratio of large number of judgments starting from Bolams case followed by various judgments of the Supreme Court, some of which are as under :-
(a)Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(b) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(c) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(d)Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(e) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651
(f) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369
22. The conclusions are as under :-
(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?
23. We have accorded careful consideration to the rival claims and contentions of the parties and have perused the documents available on record by way of the written statement, rejoinder of the complainant and the affidavit in evidence of both parties etc.
24. We are of the view that every hospital is expected to make or equip itself with all the treatment facilities and medicines for complications that may arise during the treatment of a patient for the original disease for which a patient is admitted and if there is no doctor or medicine available then this itself amounts to deficiency in service on the part of the hospital. Since OPs had known the side effects of the drug being administered by them they should have equipped themselves to treat such side effects. The medical records produced by O.P.1 and 3 show that there was no complaint of side effect of treatment of Rheumatoid Arthritis. The patient complained only of fever, chill and rigors. Hospital record shows that on 17-12-1997, it was for the first time the O.P Hospital recorded that the patient was admitted for Rheumatoid arthritis with fungal infection. If it was so the O.Ps. should have given treatment for fungal infection in the first instance which they did not do. This is apparent from the observation that during the hospital stay the deceased had exacerbation of fungal infection and fever with chill, rigors. However, on 10-12-1997 there is a reference of fungal infection which was diagnosed by the Gynecologist.
25. In the Medical Literature American College of Rheumatology precautions and adverse reactions of medicine Methotrexate have been detailed extensively.
Precautions:
Monitoring:
Monitor hematology at least monthly, and liver and renal function every 1 to3 months during therapy. During initial or changing doses, or periods of increased risk of elevated MTX blood levels (eg, dehydration), more frequent monitoring may be indicated. Stop MTX immediately if there is a significant drop in blood counts.
Adverse Reactions:
Elevated liver function tests (15%); nausea/vomiting (10%); thrombocytopenia (platelet count < 100,000/mm 3), stomatitis (3% to 10%); rash/pruritus/dermatitis, diarrhea, alopecia, leucopenia (WBC < 3000/mm 3), pancytopenia, dizziness (1% to 3%).
Other less common reactions included : Decreased hematocrit; headache; upper respiratory infection; anorexia; arthralgias; chest pain; coughing, dysuria; eye discomfort; epistaxis; fever; infectin; sweating; tinnitus; vaginal discharge.
Administration and dosage Initial therapy may be instituted with the MTX 2.5 mg tablet dose pack, designated to initiate therapy with a 7.5 mg weekly dose. The dose pack is not recommended for titration to higher weekly doses, if they are necessary. Individualize dose. An initial test dose may be given prior to the regular dosing schedule to detect any extreme sensitivity to adverse effects. Maximal myelosuppression usually occurs in 7 to 10 days.
Recommended Stating Dosage Schedules : Single oral doses of 7.5 mg/week or divided oral dosages of 2.5 mg at 12 hour intervals for 3 doses given as a course once weekly.
Dosages in each schedule may be adjusted gradually to achieve an optimal response, but not ordinarily to exceed a total weekly dose of 20 mg. Limited experience shows a significant increase in the incidence and severity of serious toxic reactions, especially bone marrow suppression, at doses greater than 20 mg/week. Once response has been achieved, reduce each schedule, if possible, to the lowest possible effective dose.
Therapeutic response usually begins within 3 to 6 weeks and the patient may contribute to improve for another 12 weeks or more.
Optimal duration of therapy is known. Limited data indicate that initial clinical improvement is maintained at least 2 years with continued therapy.
26. It is also mentioned in the records that there was petichil haemorrhage which means leakage of blood vessels which may be a part of pancytopania.
27. Another deficiency in service or negligence on the part of O.P is that they forced the patient to leave the hospital in a very precarious condition. Even if the medicine was not available at any place the O.Ps. could have asked the patient to procure it wherever it was available. In its reply O.P.4 says that the medicine asked for was used in treatment of fungal infection.
28. We have taken a view that whenever any patient lands in any Hospital or Nursing Home, Medical Centre, his direct relationship of consumer for hiring or availing the medical services is with the said Hospital or Nursing Home or medical Centre and not with the treating Doctors and other personnel, secondly, the entire consideration in the form of expenses including the component of charges or fees of the operating Doctor and other junior Doctors and staff engaged in pre or post operative care or any other kind of care are paid to the Nursing Home or Hospital or Medical Centre directly and thirdly that there privity regarding totality or compendium of various services including medical and those of para staff and other conveniences with the hospital and not with the operating or treating or attending Doctors, nurses and other staff.
29. Thus if a patient suffers due to the medical negligence or carelessness of Doctors and staff of the Hospital or Nursing Home or Medical Centre whose services he avails against consideration, said Hospital or Nursing Home or Medical Centre alone is liable to compensate the patient as to loss or injury suffer by him and Nursing Home or Hospital or Medical Centre has independent remedy to take any kind of action against such doctors or staff but no doctor or staff has a joint or several liability qua the patient.
30. Similarly Nursing Homes or Medical Centres or Hospitals alone are liable for the acts of omission or commission or medical negligence of visiting or consulting Doctors as the patient has no direct contract with such Doctors and services of such Doctors are availed by the Hospital or Nursing Home or Medical Centre and not the patient.
31. Any patient or person has a right to claim compensation for the sufferings suffered by him from the individual Doctor or doctors with whom he has direct contract either at his clinic or at any Nursing Home or Hospital or Medical Centre whose infrastructure facilities may be availed by such Doctors.
32. Taking over all view of the matter and the nature of deficiency we hold the OP No.1 alone liable for the deficiency in service being medical Institution and Hospital where the deceased had landed for treatment and direct it to pay compensation of Rs. 1 lac besides Rs. 10,000/-
as cost of litigation.
33. Complaint stands disposed of in aforesaid terms.
34. Payment shall be made within one month from the date of receipt of a copy of these orders.
35. Copy of the order, as per statutory requirements, be forwarded to the parties and thereafter the file be consigned to record.
36. Announced 12th September 2008.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK/JJ