State Consumer Disputes Redressal Commission
Joginder Singh vs Jai Nar Hospital on 24 November, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 24 -11-2006 Complaint Case No. C-375/97 Shri Joginder Singh Complainant. 105, G H 5 & 7, Paschim Vihar, Through NewDelhi-110041. Mr. R.K. Dhillon, Advocate. Versus Jai Nar Hospital, Opposite Party A-328, Meera Bagh, Through New Delhi-110041.` Ms. Sumati Anand, 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, PRESIDENT (ORAL) The complainant has through this complaint claimed compensation of Rs. 14,84,063/- alleging medical negligence and deficiencies in service on the part of OP-hospital. According to the complainant, he on 25-09-1997 got some sharp particle struck in his throat while taking breakfast which resulted in severe pain and bleeding from his throat. He went to the OP-Hospital for treatment where X-ray of his neck was taken and the ENT Specialist observed that there was a puncture in his throat.
He was given some medicine, but the treatment proved of no help. Again on 01-10-1997, the complainant went to the OP hospital and the attending doctor found that his blood pressure was too high and hence he was admitted in the hospital, but his condition worsened day by day.
2. That on 6-10-1997, the complainant had some difficulty in breathing. Hence he was put on oxygen and some injections and medicines were given to him. However, swelling appeared on the face and body of the complainant and he went into coma. Not satisfied by the medical care provided at the OP-Hospital, the complainant was shifted to Kalra Hospital on 06-10-1997 and was treated there.
He gained consciousness on 11-10-1997. According to the complainant, he was at the verge of death simply due to wrong medication and due to indifferent and callous treatment meted out to him at the OP-hospital by the doctors and the staff. He had paid Rs. 11,000/- to the OP-Hospital at the time of discharge.
Hence the present complaint is for various expenses incurred in the treatment at OP-Hospital, Kalra Hospital and compensation for physical and mental torture and also for future treatment and Rs. 5 lacs for lowering expectancy of life.
3. OP denied that there was any deficiency in the treatment. According to OP, the question as to what treatment ought to be provided or has been provided to the complainant is a matter of opinion of the doctors who attended the complainant. Hence, the mere allegation that the complainant suffered due to wrong medication and indifferent and callous treatment by the hospital staff, does not give rise to any action.
4. The contentions of the counsel for the OP, in brief, are as under :-
(i) Complainant has not filed any expert evidence till date to substantiate the facts submitted in the complaint.
(ii) In case of medical negligence the onus is on the complainant to prove the medical negligence. In this regard the counsel placed reliance on the following cases;
(a) Jacob Mathew Vs State of Punjab & Anr. (2005) SCC (Crl.) 1369.
(b) State of Punjab Vs. Shiv Ram & Ors. AIR 2001 (SC) 3914
(c) Vinita Ashok Vs. Laxmi Hospital
(d) Tara Chand Jain Vs. Sir Ganga Ram Hospital 2005 Vol. 3 SCC 48
(iii) On 25-09-1997 the complainant had reported to the OP-Hospital as an Out-Patient for the first time complaining pain in the throat due to injury by a stapler pin. Dr. Balwinder Singh, the resident Doctor attended him and X-ray of aesophagus and stomach was taken but no foreign object was detected. He was prescribed injection Perinom, Mucan gel, Imox 500 mg and Jonac plus. Complainant was also examined by Dr. P. Sharma, MS(ENT) also. After the injection the treatment was prescribed, the complainant left the hospital feeling comfortable.
(iv) That on 28-09-1997 complainant reported to the OP-hospital again and Dr. Balwinder Singh examined him who continued the previous treatment except for Imox Capsules, and in its place Tablets of Ciprowin were prescribed and he was advised to do hot salted water gargles 2-3 times a day. At that time the complainant did not have any complaint whatsoever against the OP-hospital.
(v) On 01-10-1997 the complainant with problem of acute discomfort again approached the OP-Hospital.
He was examined immediately and it was found that he was suffering from acute hypertension and his blood pressure was 220/120. He did not report any previous history of hypertension. On doctors advice he was admitted in the hospital. He was examined by Dr. Balwinder singh and Dr. Atul Luthra. He was given I.V. Dextrose, Envas twice a day and sublingual Depin 5 mg and also prescribed various investigations to find out the cause of the high blood pressure. After treatment the condition of the complainant improved. The report of the investigation did not reveal any major abnormality as to the cause of acute hypertension and the blood pressure readings of the complainant were taken after every 1-2 hours.
(vi) On 01-10-1997 since the blood pressure did not respond to the aforesaid medicines to a sufficient degree, the complainant was put on Nitroglycerin + Dextrose Drip.
Envas was also increased from 5 mg twice to 10 mg + 5 mg a day.
(vii) On 03-10-1997 the complainant complained of pain in the throat and thus the hospital got his ENT examination done by Dr. P. Sharma again and revealed a small ulceration on left side of hypopharyx below tonsilar tissue with slough. The Doctor (ENT Specialist) therefore prescribed anti-biotics and pain killers for the same.
(viii) On 04-10-1997 the condition of the complainant was improved and the Drip/I.V. Nitroglycerin + Dextrose were withdrawn.
B.P. was found stable and on 05-10-1997, one day after the withdrawal of the drip the blood pressure was 160/110.
Since the condition of the complainant was considered quite stable and the patient felt quite comfortable, he was discharged from the hospital on 05-10-1997 and was advised to continue taking envas tablets and metolar tablets. On the same day at 6.00 p.m. the patient with a complaint of numbness of extremitics discomfort reported to the hospital. Dr. Balwinder Singh examined and consulted Dr. Luthra on telephone and since the patients B.P. had gone up he was immediately put on IV Dextros and the other oral medicines already prescribed. This treatment continued through the night and in the day time of 06-10-1997 the B.P. of the complainant had stabilized and its continues monitoring showed that it was maintaining at a level of 160/100.
(ix) The expert at the hospital Dr. Atul Luthra opined that the patient might be suffering from a rare condition known as PHAENOCHROMCITOMA, that hypertensive enocephalopathy. Dr. Luthra suggested C.T. Scan and monitoring of B.P. every half an hour.
(x) That the complainant was fully satisfied with the treatment of the OP-Hospital and the complaint is an after thought. Dr. Atul Luthra, the Senior Consultant who attended the complainant at the Jai Nar Hospital was requested by the complainant and his relations to even examine him at Kalra Hospital even though Dr. Luthra is not attached to that hospital and Dr. Luthra examined the complainant at Kalra hospital 7 or 8 times.
(xi) That so far as the allegation that the complainant had exceptionally very good health as he was taking daily exercise after running a long distance is concerned, the OP has no knowledge whatsoever of the complainants habits and health prior to his reporting at Jail Nar Hospital.
(xii) The allegation that the complainant was admitted with symptoms of Duodenal Ulcer is absolutely wrong as the admission slip of the OP dated 01-10-1997 clearly shows that the complainant was diagnosed as a case of acute hypertension. No stomach pain had been recorded in the medical record of the complainant. At the time of his discharge for being transferred to Kalra Hospital, his blood pressure was 160/100. However, in between at various points of time his blood pressure had been going quite high at it shot upto 230/130 on 6-10-1996 evening.
(xiii) That in many cases the patients keep on suffering from high blood pressure for quite some time before the hypertension is detected due to some crisis or during some medical check-up or other and it is denied that the blood pressure of the complainant sored high due to any treatment given by the OP-Hospital.
(xiv) That the charges of Jai Nar Hosptial are most reasonable considering the facilities provided. The charges also include the fee of the consultants. It is denied that OP charged Rs. 11,000/- from the complainant. The complainant was issued two bills for his treatment i.e. Bill No. 201 forRs. 5.779/- and Rs. 2,120/-. He paid the first bill in full and only Rs. 1,000/- for second bill and there is a balance of Rs. 1,120/- payable to the OP.
(xv) That the complainant has admitted that his diagnosis at the Kalra Hospital was the same as at the Jai Nar Hospital. It therefore confirms that the treatment and course adopted by the OP-Hospital was quite correct as also the diagnosis. In fact the disease of the complainant is a life-long disease, as is common knowledge. The OP cannot be held responsible for the disease of the complainant in any manner.
5. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is 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 to 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 (Charles worth & Percy, ibid., para 8.02)
6. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
7. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence.
Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) 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, which 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 competent 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.
(4) The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
8. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are
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(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
9. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
10. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(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?
11. It is apparent from the aforesaid claims and counter claims of the parties the main allegation against the OP is that the doctors of OP-Hospital gave wrong treatment and the problem of the complainant was diagnosed wrongly and it was because of this wrong treatment that the complainant went into coma and was later on taken to Kalra Hospital where he was treated. According to the treating doctor of the OP he prescribed injection Perinom, Mucan Gel Uni x 500 MG and Jonac Plus on 25-09-1997 and again on 01-10-1997 as when the complainant reported at the Hospital he had very high blood pressure which was 220/120 and admitted in the hospital and given I.V, Extrose and Envas twice a day and sublingual pepin-5 mg.
12. OP denied that the complainant was admitted with the symptom of Duodenal Ulcer. However, the Discharge Summary of Kalra Hospital shows that the patient when taken to Kalra Hospital was diagnosed as a patient of Hypertensive Encephalopathy which means that the patient might have got convulsions due to high B.P. In the discharge summary it was further recorded that the patient was admitted first to another hospital i.e. Jai Nar Hospital with features suggestive of peptic ulcer. Despite administration of drugs the B.P. suddenly increased to 230/130 on 6th October evening and had a tonic clonic seizure which was controlled with I/V Diazepam and Dilantin. In the summary it is nowhere mentioned that treatment of the earlier hospital was wrong or the diagnosis was not correct. The allegation is that the doctor who treated the complainant at Jai Nar Hospital was not qualified doctor, did not possess the requisite qualification to treat the disease the complainant suffered from.
13. Whenever a patient lands up in the hospital or nursing home and the nursing home accepts the patient for treatment the immediate expectation of the patient is that the treating doctor will be well qualified, skilled and would treat him properly.
14. Until and unless negligence is writ large or defect like leaving some foreign object in the body or doing some such thing which was not to be done at all and not doing a thing which was to be done by the doctor, the doctor cannot be held guilty for medical negligence.
15. There may be difference of opinion as to the nature of drugs given by the doctor and the line of treatment to be followed as per the medical literature. Line of treatment and drugs administered upon the patient and the treatment given by the doctor can be ascertained on the basis of the prescribed medical practice and procedure.
16. However, in the instant case the main allegation is that the OP-Hospital wrongly diagnosed the patient as Duodenal Ulcer whereas he had only gone to the hospital with a problem of severe pain and bleeding from his throat as while taking breakfast some sharp particle stuck in his throat.
However, history of the OP-Hospital shows that complainant specifically told that allopathic medicine does not suit him still he administered allopathic medicine. However, this can hardly be sufficient to hold the treating doctor of medical negligence as the doctor who is well qualified in the discipline is the best judge as to what kind of treatment is to be given to the patient. However, at the same time there are certain medicines which should not be given to the patient until and unless tests are conducted as the patient may have strong reaction of such drugs.
17. It is not understandable as to why and how a patient with a problem of hypertensive Encephalopathy suffered for Duodenal Ulcer and such a high blood pressure that the only inference that can be drawn is that the medicines administered upon him were either not tested or were not the correct medicines for the problem he was facing as the initial diagnosis shows that he was not a known case of hypertension. It appears that the medicines administered upon him have reacted because he was not habitual of taking allopathic medicine and this act on the part of the OP verges on the medical negligence though he was later on treated at Kalra Hospital and was cured.
18. In the given facts and circumstances of the case we find a lump sum compensation of Rs. 1 lac would meet the ends of justice.
19. Complaint is disposed of in aforesaid terms.
20. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
21. Announced on 24th November, 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj