State Consumer Disputes Redressal Commission
Sh. Shiv Dev Kumar Verma vs Dr. Jaswant Singh Thind And Others on 4 April, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 85 of 2013
Date of institution: 14.8.2013
Date of Decision: 4.4.2016
Sh. Shiv Dev Kumar Verma S/o Shri Kirpal Singh, aged 69 years, resident
of H. No. 501, Guru Nanak Nagar, Main Market, Patiala.
Complainant
Versus
1. Dr. Jaswant Singh Thind, Thind Eye Hospital Ltd., 701-L, Mall Road,
Model Town, Jalandhar.
2. Dr. Sangeet Mittal, Thind Eye Hospital Ltd., 701-L, Mall Road, Model
Town, Jalandhar
3. Thind Eye Hospital Ltd., 701-L, Mall Road, Model Town, Jalandhar
through its Proprietor/Partner/Owner
4. The New India Assurance Company Limited through its Branch
Manager, 36, Gobind Niwas, G.T. Road, Jalandhar.
Opposite Parties
Consumer Complaint under the Consumer
Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the complainant : Mrs. Monika Jalota, Advocate
For opposite parties Nos. 1-3: Sh. Vishal Aggarwal, Advocate
For opposite party No. 4 : Sh. Nitin Gupta, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Consumer Complaint No. 85 of 2013 2 Complainant has filed this complaint against Opposite parties (hereinafter referred as Ops) under the Consumer Protection Act, 1986 (for short 'the Act') on the averments that his wife Umavati Verma (hereinafter referred as patient) was suffering from some blocked arteries in her eyes and she consulted various Ophthalmologists and then she came to know that hospital of Op is best hospital for this treatment. On 6.3.2013, complainant consulted Op for eye check up of his wife. Appointment for 7.3.2013 was fixed. On check up of eyes of patient, Op No. 1 opined that patient (wife of the complainant)(hereinafter referred as 'patient') should get both eyes injected meant for declogging of arteries of eyes. Angiography of the eyes of the patient was done and report of the angiography was shown to the complainant showing clots in both the eyes of the patient. Then the patient was given an injection, namely, Intra Vitral Avastin, in her right eye, medicines were prescribed and she was advised to come up for follow up after 7 days. Immediately, thereafter, complainant found that the patient was getting short of breath and area encircling her treated eyes were getting yellowish pale. There were signs of urticaria (rashes on skin). Complainant asked Op No. 2 the reasons for the rashes. However, Op asked the complainant to take his wife home and assured that she would be comfortable after sometime. Accordingly, complainant started his journey from Jalandhar and when he reached Near Toll Plaza, Ludhiana, the patient noted down gusting of breath. Complainant immediately tried to contact Ops on telephone but no one responded. In order to get medical help, he took her to DMC, Ludhiana and she Consumer Complaint No. 85 of 2013 3 was admitted there and immediately thereafter she was given CPR(Cardiac Pulmonary Resuscitation) and then she was put on ventilator by 9.30 p.m. when she suffered another heart attack. She was also suffering from Hypoxic Brain damage. The patient remained in coma state for 40 days. Following another heart attack, she had gone into coma. Theta coma, EEG of her brain, showed the signs of comma. Complainant spent about Rs. 10 lacs on medicines/treatment. On 17.4.2013, complainant and his family was advised by the Doctors that patient can be shifted to Patiala and she may regain consciousness after sometime and till then only management and nursing of the patient was required. Accordingly, the patient was discharged and was brought to Amar Hospital, Patiala but patient remained in critical condition. Unfortunately, on 23.4.2013, patient breathed her last in Amar Hospital, Patiala. It was alleged that the patient lost her life because of the negligence on the part of Ops. Wife of the complainant was patient of hyper tension and diabetic and still Ops did not perform any pre-test before proceeding for angiography. The signs of urticaria appeared immediately after the injections were not taken seriously. There was reaction of the medicines used in the angiography. On account of medical negligence, the complainant has lost the life of his wife for which compensation of Rs. 36 lacs has been demanded i.e. Rs. 15 lacs for the loss of precious life of the wife and Rs. 21 lacs spent/incurred on the medical treatment of his wife.
2. Complaint was contested by Ops. Op Nos. 1 to 3, filed their written reply taking preliminary objections that the complainant Consumer Complaint No. 85 of 2013 4 concealed the material facts and mis-represented the essential facts; in fact the complainant came to Op Nos. 1 to 3 on 7.3.2013 at about 12.51 p.m.. She had complained of decrease in the vision in both eyes. She was known case of diabetes and hyper tension. On examination her visual acuity was 6/36 in right eye and 6/60 in left eye. Her Intra Ocular Pressure was 17mm Hg in right eye and 20mmHg in left eye. Fundus examination revealed the diabetic retinopathy with Macular edema. Before starting the angiography, pros and cons of the same were discussed with the complainant and patient and informed consent for FFA was given by the patient and the complainant and then patient made the payment for angiography at the registration counter at 2:19 p.m.. Patient underwent fluorescein angiography in the hospital at 2.30 p.m. 30 minutes later her intravenous cannula was removed. She was explained about the results of the test. FFA confirmed the presence of non-proliferative diabetic retinopathy with cystoids macular edema and was advised to undergo intravitreal injection of Avastin to reduce swelling in the retina and its pros and cons were explained to the patient and the complainant. Patient made the payment for this injection at 3.17 p.m. Informed consent was taken and she had undergone intravitreal injection at 3.30 p.m. After the injection, post injection medicines were prescribed to the patient and she was discharged from the hospital. At that time she was perfectly feeling fine. Therefore, complete procedure as per the required medical protocol was adopted. The side effects of the dye are usually seen immediately and occur within 20 minutes of giving the injection. Patient was observed for 20 Consumer Complaint No. 85 of 2013 5 minutes after the injection for possible reactions to fluorescein. At that time, there was no reaction. Fluorescein angiography is well established procedure and can be performed in patients of diabetic, hypertension and cardiac disease etc. There is nothing in the complaint that the patient feel any breathlessness or uneasiness for the next 2 hours when she was in the hospital and was under the care and custody of Op, as the patient was admitted to DMC Hospital at 7.42 p.m. i.e. after more than 4 hours of the treatment and DMC is situated just at a distance of 60 Kms. from Jalandhar. The symptoms or breathlessness or uneasiness could be due to many reasons including bronchial asthma. The discharge summary of DMC Hospital, diagnosed the patient as DM-II (Diabetes Mellitus), HTN (Hypertension), BA (Bronchial Asthma), Contrast Reaction (Suspect allergy), Global hypokinesia, EF 45, Hypoxic Brain Damage, Post CPR, Respiratory failure and sepsis. Therefore, there was no mention of signs of urticaria(rashes on skin, arms or face). In the initial examination in DMC Hospital, there was nothing to show that there was any reaction of the said medicines administered to the patient by nurse of Ops. Complainant has miserably failed to show any medical negligence on the part of Ops and allegations made in the complaint are not supported by any expert evidence. After referring the judgment of "Bolam v Friern Hospital Management Committee", (1957) 2 ALL ELR 118 and III (2005) CPJ 9 (SC) "Jacob Mathew (Dr.) versus State of Punjab & Anr.", it was submitted that Doctors are expected to bring a reasonable degree of skill and knowledge. Medical practitioner is not liable to be held negligent simply because Consumer Complaint No. 85 of 2013 6 the things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. On merits, it was admitted that the patient did come to Op hospital, which is a renowned eye hospital with NABH accreditation and standards of care as laid down by Quality Council of India. After giving the medicines, she was advised to give follow up after 7 days, which itself shows that procedure adopted by Op was successfully conducted and there was sufficient time thereafter to explain her regarding follow up. It was denied that patient was having short of breath and having other side affect of symptoms of Urticaria. The procedure was an OPD procedure and none of the patient is admitted with the hospital. Even as per averments in the complaint, she had problem after one hour because Toll Plaza Ludhiana is at a distance of 60 Kms and atleast it will take one hour to cover that distance. The treatment was as per standard medical practices. There is no medical negligence or deficiency in service on the part of Ops. Complaint is without merit and it be dismissed.
4. Op No. 4 filed its written reply taking preliminary objections that the complaint was not maintainable being misconceived and malafide; complaint involves complicated questions of law and facts, which required elaborate evidence, cross examinations, summoning of witnesses and the procedure under the Act was summary in nature, therefore, complaint was required to be relegated to the Civil Court; complaint was filed to grab money from the answering respondent without any fault of theirs. It was admitted that Op No. 3 was insured with answering respondent under Consumer Complaint No. 85 of 2013 7 Professional Indemnity Insurance (Medical Establishment) Policy for the period 2.5.2012 to 1.5.2013. If Op No. 3 was found negligent, the liability of answering respondent was restricted as per terms and conditions of the policy. As no prior notice from Op No. 3 was received by the answering respondent, which is violation of the terms and conditions of the policy, as such, answering respondent was not liable to pay any amount of insurance; there was no privity of contract between the complainant/patient and answering respondent, therefore, complaint against answering respondent was not maintainable and that complainant had no locus standi to file the complaint. On merits, averments as stated in the preliminary objections were reiterated. Complaint was without merit against answering respondent, therefore, it be dismissed qua it.
4. The parties were allowed to lead their evidence.
5. In support of his allegations, complainant had tendered into evidence affidavits of Shiv Dev Kumar Verma Exs. CW-1/A, CW- 1/B, bills Exs. C-1 to 3, prescription Exs. C-4 & 5, discharge summary Exs. C-6 to 20, bill of hotel Exs. C-21 to 24, discharge slip Ex. C-25, detail bill Ex. C-26, detail bills Exs. C-27 & 28, bill Ex. C-29, death certificate Ex. C-30, copy of article Ex. C-31. Op Nos. 1 to 3 had tendered into evidence affidavit of Dr. Sangeet Mittal Ex. Op-1-3/A, bill Ex. Op-1-3/1, relevant para of patient file Ex. Op-1-3/2, consent form Ex. Op-1-3/3, log book Ex. Op-1-3/4, consent form Ex. Op-1-3/5, computerized log book Ex. Op-1-3/6, relevant extract of book Ex. Op- 1-3/7 & 8, log book copy Ex. Op-1-3/9, purchased bills Ex. Op-1-3/10, letter Ex. Op-1-3/11, certificate Ex. Op-1-3/12. Op No. 4 had tendered Consumer Complaint No. 85 of 2013 8 into evidence affidavit of Tarsem Chand, Manager Ex. Op-4/A, insurance policy Ex. Op-4/1.
6. We have heard counsel for the complainant Mrs. Monika Jalota, Advocate, counsel for Op Nos. 1 to 3 Sh. Vishal Aggarwal, Advocate and counsel for Op No. 4 Sh. Nitin Gupta, Advocate.
7. It has been argued by the counsel for the complainant that the patient, who was wife of the complainant was suffering from vision of her eyes and as she had blocked arteries in the eyes. For the said treatment, complainant alongwith the patient had approached Op Hospital. On examination by Op No. 1, it was found that arteries of both the eyes were blocked for which angiography of both the eyes was required and injections were required to be injected for declogging the same and accordingly, angiography of eyes was done. After waiting for the required period, injection, namely, Intra Vitral Avastin was given to her at 3.30 p.m.. Before doing that informed consent was aken, which has been proved on the record as Ex. Op-1 to 3/3 & 5 in which even there is fore warnings with regard to the reaction and other outcome of the medicines. It has been alleged by the complainant that when they were on their way from Jalandhar to Ludhiana near Toll Plaza Ludhiana, patient suffered breathlessness and uneasiness. Efforts were made to contact Op but contact could not be established, therefore, she was taken to DMC College & Hospital. It has been alleged that problem arose to the patient due to reaction of the medicines which was not controlled by Ops. It has been alleged that there was medical negligence on the part of Ops. However, the admission record of Consumer Complaint No. 85 of 2013 9 DMC has been proved on the record as Ex. C-25. According to the report, she was diagnosed as DM-II (Diabetes Mellitus), HTN (Hypertension), BA (Bronchial Asthma), Contrast Reaction (Suspect allergy), Global hypokinesia, EF 45, Hypoxic Brain Damage, Post CPR, Respiratory failure and sepsis. There is no reference of any sign of urticaria. Counsel for the Op has referred to Chapter 55 - Fluorescein Angiography : Basic Principles and Interpretation where Side Effects and Complications of Fluorescein Injection has been referred as under:-
"Extravasation and local tissue necrosis Inadvertent arterial injection Nausea Vomiting Vasovagal reaction (circulatory shock, myocardial infarction) Allergic reaction, anaphylaxis (hives and itching, respiratory problems, laryngeal edema, bronchospasm) Nerve palsy Neurologic problems (tonic-clonic seizures) Thrombophlebitis Pyrexia Death"
which include respiratory problem, therefore, respiratory problem to the patient cannot be ruled out due to outcome of Fluorescein injection. Whereas counsel for Op Nos. 1 to 3 has argued that according to the check list for fluorescein angiography is done Consumer Complaint No. 85 of 2013 10
1. "Inform patient about fluorescein angiography. Obtain verbal or written informed consent.
2. Dilate patient's pupil.
3. Prepare Fluorescein solution, scalp-vein needle, and syringe
4. Prepare fundus camera a. Clean Front lens b. Load color and black-and-white film into two camera backs c. Focus eyepiece crosshairs
5. Take identification photograph, which includes the patient's name, the date, and other data (number of Fluorescein angiogram, patient's vision of right eye and left eye, referring physician, and so forth.)
6. Position patient for alignment, focus, and comfort
7. Align and focus camera
8. Complete color photography
9. Switch to camera with black-and-white film for fluorescein photography
10. Take red-free photographs (frames 2 to 5)
11. Insert scalp-vein needle
12. Simultaneously start timer from zero and inject fluorescein dye
13. Take preinjection color photographs; shoot at exact start of injection as time is turned on and shoot second shot at exact finish of injection (length of time of injection is automatically recorded)
14. Start fluorescein photograph 8 seconds after the start of injection in young patients and 12 seconds in older patients.
15. Follow fluorescein angiography plan
16. When photography is done, reassure patient that all went well and remind him or her that the urine will be discolored for a day or Consumer Complaint No. 85 of 2013 11 so. Have patient wait an additional 20 minutes for observation for possible reactions to fluorescein."
Therefore, according to these reactions flourescein is to be checked for a period of 20 minutes. Then reference has been made to flourescein angiography under the column 'Hazards of Angiography', wherein it has been observed as under:-
"HAZARDS OF ANGIOGRAPHY The morbidity associated with the use of fluorescein angiography is minimal. However, a number of unavoidable side effects result from the use of dilating eydrops and the inravenous injection of dye. These include a red afterimage from the photoflash, a temporary tan skin color from the dye, and a fluorescent discoloration of the urine. In addition, for several days following angiography, fluorescent serum will interfere with many chemical tests performed by fluorescent methods. All patients should be fully informed about the expected side effects of fluorescein angiography.
About 30 to 60 seconds after the injection of fluorescein dye, approximately 2% to 4% of patients experience transient nausea and occasional vomiting. The latter usually can be avoided by reassuring the patient that the feeling of nausea is very transient and will quickly subside. More severe reactions to the dye may occur, including hives, asthmatic symptoms, and laryngeal edema. These usually can be controlled by oral or intravenous administration of diphenhydramine hydrochloride (Benadryl) or cortisone. Syncope, anaphylactic reaction to fluorescein, myocardial infarction, and Consumer Complaint No. 85 of 2013 12 respiratory or cardiac arrest also have been reported but fortunately are quite rare.
In a patient who has had a mastectomy with lymph node dissection, fluorescein should not be injected into an arm vein on the same side. Minor skin trauma in an arm with impaired lymphatic drainage can result in local cellulitis and possible lymphangitis. Fluorescein can (rarely) get into the lymph circulation even when there is no extravasation from the vein. This can be seen in the arm on the side of the injection. It is not painful, but causes a striking fluorescence of the lymph system of the arm when viewed by ultraviolet (Woods-type) light.
With thousands of angiograms successfully performed each year without complication, fluorescein is regarded as a relatively safe drug. Nevertheless, a clearly defined plan for managing serious reactions to fluorescein angiographic facility. A physician should be available during the first few minutes following the administration of fluorescein, because most serious reactions occur soon after injection."
7. Then advice of PGI was taken and Dr. M.R. Dogra, who is Head, Department of Ophthalmology, PGIMER, Chandigarh, has also observed that the patient is to be observed for 20-30 minutes to ensure his well being according to his advice Ex. Op-1-3/11 whereas breathlessness and uneasiness was experienced by the patient when the patient reached Toll Plaza Ludhiana. It is approximately at a distance of 60 Kms. from Jalandhar and it takes approximately one hour to reach there and there was no sign of reaction when the patient was admitted in DMC as per their admission record Ex. C-25 Consumer Complaint No. 85 of 2013 13 referred above. In case there was some problem of breathlessness/uneasiness there can be number of reasons for that. The complainant has not examined any Doctor that respiratory problem to the complainant was due to Fluorescein Injection. Although there may be possibility but it depends upon case to case whether there was reaction of the medicine or for another reason. No expert report has come on the record that respiratory problem to the patient was due to Fluorescein Injection given to the patient. Therefore, connecting evidence in this case is missing. Otherwise this procedure is OPD procedure and Op hospital is one of the renowned hospital having NABH (National Accreditation Board for Hospitals and Healthcare Providers) as per certificate of accreditation Ex. OP-1- 3/12 period from 1.2.2013 to 31.1.2016. Counsel for the Op has referred to the judgment "Bolam v Friern Hospital Management Committee", (1957) 2 ALL ELR 118 wherein it has been observed as under:-
"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill.... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." Consumer Complaint No. 85 of 2013 14
and in III (2005) CPJ 9 (SC) "Jacob Mathew (Dr.) versus State of Punjab & Anr.", observed as under:-
"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 operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had be been acting with ordinary care."
Therefore, according to these judgments, in case the Doctor has acted according to standard medical practices, according to reasonable degree of skill and knowledge then the Doctor cannot be held for negligence. Even if things had gone wrong or mis-chance or mis-advantage or through an error of judgment the doctor cannot be held liable for any medical negligence. The counsel for the Consumer Complaint No. 85 of 2013 15 complainant could not point out anything wrong in adopting the procedure. In case the proper procedure has been adopted by the Doctor, if lateron anything has gone wrong and it is not certain that any respiratory problem suffered by the patient was due to the fluorescein injection given by Op for treatment of the eye of the patient, therefore, we are of the opinion that complainant has not been able to establish any case of medical negligence on the part of Ops. Therefore, we do not see any merit in the complaint, the same is hereby dismissed without any order as to costs.
8. The arguments in this consumer complaint were heard on 29.3.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
9. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member April 4, 2016. (Surinder Pal Kaur) as Member Consumer Complaint No. 85 of 2013 16