National Consumer Disputes Redressal
Obaid Hassan Khan vs Smt. Jamila Rashid & Ors. on 20 November, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 543 OF 2008 (Against the order dated 12.09.2008 in Complaint No. 09/2004 of the Bihar State Consumer Disputes Redressal Commission) Obaid Hassan Khan S/o Sri A.H. Khan Mohallah Shahgunj, Dargah Road P.S. Sultangunj Patna Appellant Versus 1. Smt. Jamila Rashid Director, Arsi Clinic P.O. Mahendru P.S. Sultangunj District Patna 2. Dr. M.A. Rashid Arsi Clinic, P.O. Mahendru P.S. Sulatangunj District Patna 3. Dr. U.C. Samal Yadav Bhavan Naya Tola Patna-4 4. Kurji Holy Family Hospital Through its Manager P.O. Sadakat Ashram P.S. Digha District Patna Respondents BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER For Appellant : Mr. Nirmal Kumar Ambastha, Adv. For Respondents : Mr. Joy Basu, Sr. Advocate with Mr. Rajiv Shankar Dwivedi, Adv. & Mr. Indrajeet Sivan, Adv. for R-1&2 Mr. Brajesh Kumar, Advocate for R-3 Mr. Pankul Nagpal, Advocate for R-4 Pronounced on 20th November, 2013 ORDER
PER VINEETA RAI This first appeal has been filed under Section 21(a)(ii) of the Consumer Protection Act, 1986 by Obaid Hassan Khan, Appellant herein and Complainant before the Bihar State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission), challenging the order of that Commission, which had dismissed his complaint of medical negligence, resulting in the death of Appellant/Complainants wife, against Smt. Jamila Rashid, Director, Arshi Clinic, Patna and 3 others, Respondents herein and Opposite Parties before the State Commission.
2. In his complaint before the State Commission, Appellant/Complainant had stated that on 27.05.2004 his wife Smt. Tabassum Parveen (hereinafter referred to as the Patient), who had been unwell for 4-5 days with complaints of vomiting, abdominal pain, mild fever and yellowish urine, was taken by him to Dr.M.A. Rashid (Opposite Party No.2), who practiced in Arshi Clinic at Patna, of which his wife Smt. Jamila Rashid was a Director, and although the Appellant/Complainant informed that he suspected that his wife was suffering from jaundice, Dr. Rashid wrote jaundice nil and prescribed antibiotics and Paracetamol for 5 days which were contraindicated in jaundice patients. The next day there was deterioration in Patients condition and symptoms of jaundice became more visible. Appellant/Complainant again took his wife to Opposite Party No.2, who thereafter prescribed certain blood tests to be done on an empty stomach. The tests conducted on 29.05.2004 confirmed that Patient was suffering from severe jaundice as the Bilirubin count was 11.4 mg whereas the maximum normal rate is 1mg. On 30.05.2004 on receipt of the above report Appellant/Complainant took the same to Dr. Rashid, who advised that antibiotics and Paracetamol should be discontinued. When there was no improvement in Patients condition, Appellant/Complainant took the advice of one Dr. U.C. Samal (Opposite Party No.3), who prescribed Emeset injection to be administered twice a day to which Patient reacted adversely and was referred to Kurji Holy Family Hospital (Opposite Party No.4), where her Bilirubin count was found to be 19 mg and she went into a coma. Since she was having difficulty in breathing, two Doctors known to the Appellant/Complainant i.e. Dr.S.A. Khan and Dr.Ghosh came to see the Patient and advised that she be provided a ventilator, which was declined by the hospital on the grounds that Hepatitis Patients are not provided ventilators because it may cause the spread of jaundice in the hospital. Because of the wrong diagnosis, administration of irrational drugs and lack of ventilator support, Patient passed away, causing enormous mental and physical agony to the Appellant/Complainant, who lost his spouse and to his three year old son who was deprived of his mothers love.
Patient, who was only 29 years old and a Postgraduate, was earning Rs.6000/- per month and was also preparing for the competitive exams. Taking into account all these facts, Appellant filed a complaint on grounds of medical negligence and deficiency in service on the part of Dr. M.A. Rashid (Opposite Party No.2), Dr. U.C. Samal (Opposite Party No.3), Kurji Holy Family Hospital (Opposite Party No.4) as also the Director of the Arshi Clinic Smt. Jamila Rashid (Opposite Party No.1) and requested that the State Commission direct them to pay Appellant/Complainant (i) Rs.40 Lakhs towards damages and earnings which Patient would have earned in her life time; (ii) Rs.40,000/- incurred on her medical treatment; and (iii) Rs.10,000/- as litigation costs, alongwith 18% interest on the above amounts.
3. Respondents/Opposite Parties on being served filed written rejoinders denying the allegations made against them and inter alia stated that there was no delay or negligence in the treatment of the Patient which was done as per standard case practice in the treatment of jaundice. They also annexed various documents, citations and extracts from medical books/literature in support of their contentions. It was specifically contended by Dr. M.A. Rashid (Opposite Party No.2) that within a few hours of Patient being examined by him, he advised necessary pathological tests to detect jaundice. Dr. U.C. Samal (Opposite Party No.3) stated that Emeset injection, which was prescribed by him and was to be administered twice a day to check nausea and vomiting, was not contraindicated since Emeset is safe for jaundice patients if the dosage does not exceed 8 mg. per day, which it did not in this case. Kurji Holy Family Hospital (Opposite Party No.4) stated that a conscious decision was taken not to put the Patient on ventilator support since it was contraindicated because of her prolonged convulsions and possible bleeding in the respiratory tract. She was, therefore, put on oxygen inhalation and lack of ventilator support thus did not contribute to her death. Opposite Parties contended that Patient died of fulminant hepatic failure despite adequate medical care by well qualified doctors and proper management because mortality is known to be very high in such cases. Thus, there was no negligence or deficiency in the line of treatment which was both appropriate and adequate.
4. During the proceedings before the State Commission, Appellant/Complainant, in support of his complaint of medical negligence, filed an affidavit of one Dr. Arif Khan, who had a M.D. degree and who after examining the Patients medical papers concluded that the treatment was not appropriate and that negligence was writ large and some of the medicines prescribed were clearly contraindicated in patients of jaundice. As a result of the cumulative negligence on the part of the concerned Respondents/Opposite Parties, Patient died. Opposite Parties who had treated the Patient assailed the affidavit of Dr. Arif Khan and stated before the State Commission that he could not be considered as an expert since he had an MD degree in Pediatrics and not in general or internal medicine.
The State Commission, taking note of the above contradictory statements called for the expert opinion from the Head of Department of Gastro-Enterology and Hepatology (Dr. Amrendra Kumar) in the Indira Gandhi Institute of Medical Sciences (IGIMS), who after examining all the reports, including the affidavit filed by Dr. Arif Khan, opined that Dr. Khan could not be considered an expert in the instant case since his Postgraduate degree was in Pediatrics. Dr. Amrendra Kumar further opined that Emeset injection is not contraindicated in jaundice if the dosage does not exceed 8mg per day and that also the treatment given to the Patient by Opposite Party No.4/Hospital was appropriate and her death was not attributable to any medical negligence or deficiency in service. He confirmed that fulminant hepatic failure has a very high mortality and 70 to 80% of the patients die despite adequate medical care and proper management.
Thereafter the State Commission following a request from the Appellant/Complainant for calling expert opinion from a recognized institute of excellence, preferably All India Institute of Medical Sciences, referred the matter to IGIMS, which is the only superspeciality Institute in the region for expert opinion and who appointed a committee of 5 Heads of Departments of different medical disciplines in that Institute, who after scrutinizing the medical records furnished to it, opined that there was no medical negligence in the treatment of the Patient. The State Commission taking cognizance of the above expert opinion concluded that there was no medical negligence or deficiency in service on the part of Respondents/Opposite Parties and that in fact it was the Appellant/Complainant who was negligent in delaying the treatment of the Patient by 7 to 8 days. Relevant parts of the order of the State Commission are reproduced :
32. From the medical records of KHFH it would transpire that the patient was not shown to any doctor during the first 4/5 days of her illness and the complainant indulged in self medication of the patient. The Opposite Parties have naturally cast serious doubt on the conduct, intention, sincerity of the complainant in the matter of taking care of his unfortunate and ill fated life partner. It does not stand to reason why the complainant was negligent and careless in the matter of treatment of his wife and why he did not get her admitted into a hospital where emergency treatment and round the clock monitoring was available till the evening on 02-06-2004 when O.P.No.3 chided him for his negligence and self medication and he declared her condition to be critical and he himself arranged for her admission into KHFH by contacting the authorities of the hospital on telephone.
One may on the basis of negligence and carelessness on the part of the complainant suspect intention of the complainant of getting rid of his wife.
33. It may be mentioned that the complainant could not discharge onus that heavily lay on him to prove medical negligence of doctors with evidence or expert opinion or medical literature. He could bring nothing on record to prove that proper medicines were not given or wrong line of treatment was adopted. The complainant produced evidence on affidavit of an expert who could not be accepted and treated as such and his opinion was already rejected.
34. Under the circumstance, the affidavits filed by the doctors/hospital (Ops. No. 2, 3 & 4) were acceptable as reliable. On analysis and appreciation of the material based on record we arrive at the conclusion after taking into account the totality of the circumstances that no case is made out by the complainant and the complaint is thus devoid of merit and substance.
35. Report of IGIMS fortifies prima-facie conclusion that there was no medical negligence at all on the part of the O.Ps. and hence the complaint is liable to be dismissed.
Hence, the present Appeal.
5. Learned Counsel for the parties made oral submissions essentially reiterating the facts as contended by the parties before the State Commission.
6. Counsel for the Appellant/Complainant emphasized that there was initial delay in the Patients treatment because Dr. M.A. Rashid (Opposite Party No.2) on the basis of a perfunctory examination of the Patient on 27.05.2004 wrongly recorded that she did not have jaundice and it was only on the insistence of the Appellant/Complainant on the next day that he referred the Patient for blood tests. It was 3 days before the results could be obtained, which confirmed a very high Bilirubin count. This initial delay because of negligence on the part of Opposite Party No.2 was fatal because it resulted in rapid deterioration of the Patients condition which could not be reversed. The situation was further aggravated by Opposite Party No.2 prescribing an antibiotic Gatifloxacin, which as per medical literature filed in evidence is contraindicated in the use of jaundice. All these facts had been confirmed by the expert evidence of Dr. Arif Khan, which erroneously was not relied upon by the State Commission merely on the ground that since he had a Postgraduate degree in Pediatrics he could not be called an expert to give his opinion in cases of jaundice. The State Commission also did not heed the request of the Appellant/Complainant to refer the case for independent assessment to the All India Institute of Medical Sciences or an Institute from South India and instead referred it to a local Institute whose bias in giving its opinion could not be ruled out.
7. Counsel for Dr. M.A. Rashid (Opposite Party No.2) while admitting that when Opposite Party No.2 saw the Patient late in the evening on 27.05.2004 did record that she was nil for jaundice, but within a few hours thereafter she was referred for blood tests and on receipt of the pathological report Gatifloxacin and Paracetamol were stopped. Otherwise also Gatifloxacin is a safe broad spectrum drug for treatment of bacterial infection and only its long term use can lead to medicine induced hepatitis/jaundice, which was not so in the instant case. The delay in the diagnosis of the Patient was insignificant and, therefore, not responsible for Patients death. Further, as was apparent from the medical records of Kurji Holy Family Hospital (Opposite Party No.4) the delay in bringing the Patient to Opposite Party No.2 was on the part of Appellant/Complainant who indulged in self-medication of the Patient for 4-5 days and this fact was also confirmed by the State Commission.
8. Counsel for Dr. U.C. Samal (Opposite Parties No. 3) and Kurji Holy Family Hospital (Opposite Party No.4) also reiterated that there was no medical negligence or deficiency in service on their part. The report of the medical experts from IGIMS has also confirmed that there was no medical negligence or deficiency in service on the part of Opposite Parties No. 3 and 4.
9. We have considered the submissions made by Counsel for the parties and have also gone through the evidence on record. After carefully considering the same, we agree with the finding of the State Commission that there was no medical negligence or deficiency in service in the treatment of the Patient by the Opposite Parties based substantially on the finding of experts, comprising a highly qualified team of Doctors from IGIMS. While admittedly Opposite Party No.2 initially recorded a finding of jaundice nil, he rectified the same when he sent the Patient for pathological tests and on receipt of the report confirming jaundice he immediately stopped the antibiotics that he had prescribed. This delay in initial diagnosis and medication did not adversely affect the Patients condition as also indicated by the team of experts which did not find any medical negligence in the treatment of the Patient. So far as Opposite Party No.3 is concerned, the allegation of the Appellant/Complainant that the injection Emeset resulted in deterioration of the Patients condition is not borne out by any medical literature or the expert medical evidence. Emeset is prescribed to check nausea and vomiting from which the Patient was suffering and is safe for jaundice patients if it does not exceed 8mg per day which it did not in this case. Opposite Party No.3 also rightly put the Patient on saline drip and immediately referred her to a hospital fully recognizing the seriousness of the case. So far as the treatment at Opposite Party No.4/Hospital is concerned, we note that the team of experts from IGIMS after carefully scrutinizing the medical papers of the Patient from that hospital had clearly concluded that there was no medical negligence or deficiency in service on the part of that hospital and we see no reason to disagree with this medical expert evidence, particularly since it has not been satisfactorily displaced by any evidence led by the Appellant/Complainant.
In this context, we agree with the finding of the State Commission that the evidence of Dr. Arif Khan produced as expert evidence by the Appellant/Complainant cannot be given much credence since he did not have a Postgraduate degree in either Gastro Enterology or internal medicine; nor had he personally examined the Patient. On the other hand, Dr. Amarendra Kumar, who was a better qualified expert to give his opinion, had clearly indicated that there was no medical negligence in the treatment of the Patient, which as stated earlier was also confirmed by a team of experts from IGIMS. We also do not find any substance in the allegation of the Appellant/Complainant that the lack of ventilator support to the Patient at Opposite Party No.4/Hospital also contributed to her death. As has come in evidence before the State Commission, the issue of putting her on ventilator was carefully considered and a conscious decision was taken by the medical experts not to put her on ventilator since that could have further deteriorated her condition which was already critical. From the evidence on record it is also established that it was the Appellant/Complainant who brought the Patient to the Doctor after the Patient had been unwell for 4-5 days and in fact he had also indulged in self-medication.
10. Keeping in view the above facts, we agree with the order of the State Commission that there was no medical negligence or deficiency in service in the medical treatment of the Patient on the part of the Opposite Parties. We, therefore, uphold the order of the State Commission and dismiss the present Appeal with no order as to costs.
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(D.K. JAIN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Mukesh