State Consumer Disputes Redressal Commission
Dr. Kapil Dev Sharma vs Smt. Saroj Bala on 8 May, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No. 626 of 2013 Date of Institution:11.09.2013 Date of Decision: 08.05.2014 Dr. Kapil Dev Sharma C/o Kapil Hospital, Yamuna Nagar Road, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar. Appellant-Opposite Party No.1 Versus 1. Smt. Saroj Bala w/o Sh. Lakhbir Singh, R/o 213-A, Dayal Bagh, Mahesh Nagar, Ambala Cantt, also resident of Village Jaroda, Tehsil Jagadhri, District Yamuna Nagar. 2. Smt. Surender Kaur w/o late Shri Surender Kumar, R/o Village Jaroda, Tehsil Jagadhri, District Yamuna Nagar. 3. Pooja minor daughter of late Shri Surender Kumar through her mother and natural guardian Smt. Surender Kaur, R/o Village Jaroda, Tehsil Jagadhri, District Yamuna Nagar. 4. Rajni minor daughter of late Shri Surender Kumar through her mother and natural guardian Smt. Surender Kaur, R/o Village Jaroda, Tehsil Jagadhri, District Yamuna Nagar. 5. Ajay Kumar minor son of late Shri Surender Kumar through his mother and natural guardian Smt. Surender Kaur, R/o Village Jaroda, Tehsil Jagadhri, District Yamuna Nagar. 6. Rohit minor son of late Shri Surender Kumar through his mother and natural guardian Smt. Surender Kaur, R/o Village Jaroda, Tehsil Jagadhri, District Yamuna Nagar Respondents-Complainants 7. United India Insurance Company Limited, 54-Jan Path Cannaught Place, New Delhi through its Sr. Divisional Manager. Respondent-Opposite Party No.2 CORAM: Honble Mr. Justice Nawab Singh, President. Mr. B.M. Bedi, Judicial Member. Mrs. Urvashi Agnihotri, Member. Argued by: Shri Ashwani Sharma, Advocate alongwith Dr. Kapil Dev Sharma-appellant. Shri Ashok Kamboj, Advocate for respondents No.1 to 6. O R D E R
B.M Bedi, Judicial Member:
Challenge in this appeal is to the order dated July 11th, 2013 passed by District Consumer Disputes Redressal Forum, (for short District Forum), Yamuna Nagar, whereby complaint filed by complainants (respondents No.1 to 6 herein) alleging medical negligence and deficiency in service on part of appellant-opposite party No.1 with respect to the treatment given to Surender Kumar (since deceased) was accepted. For facilitation, the operative part of the order is as under:-
..we direct the respondents to pay an amount of Rs.8,80,000/- to the complainants No.2 to 6 as discussed above jointly and severally within 60 days from the date of order. To make the balance between the complainants No.2 to 6, this Forum further directs that, out of the total compensation amount of Rs.8,80,000/-, a sum of Rs.1,50,000/- each be deposited in the Nationalized Bank in the name of complainant No.3 to 6 till they attain the age of majority and the remaining amount of Rs.2,80,000/- be given to Surender Kaur complainant No.2 in cash. It is further clarified that if the awarded amount is not deposited by the Ops within the period of 60 days from the date of the preparation of the copy of order then complainant No.2 to 6 shall be entitled to recover the same from the respondents jointly and severally alongwith interest at the rate of 9% per annum from the date of filing of the complaint till its realization. The complaint is decided accordingly.
2. The background facts as can be gathered from the record are that on December 26th, 2008 Surender Kumar was got admitted in the hospital of the appellant-opposite party No.1 as a case of fever. After conducting blood tests, it was found that the patient had low platelet count (Thrombocytopenia). He was a patient of dengue fever-Low Platelet Count. The patient was given treatment and his blood tests were repeated regularly.
3. On December 29th, 2008, the patients platelet count was only 40,000/cmm. As per medical literature, when platelet count falls below 50,000/cmm, a patient can have spontaneous internal bleeding from any part of his/her body. Accordingly, the attendants of the patient were asked to arrange for platelets but they could not.
4. On December 30th, 2008 the patients attendants arranged one unit of fresh blood from Red Cross Blood Bank at ESI Hospital and the same was transfused to the patient at 3.30 P.M. The patient complained of having severe headache and sweating at 7.30 P.M. He was given injection Fortwin and Injection Phenargan amp each for the relief of headache. Electro Cardiogram was done which showed Ventricular Premature beats and ST depression. Thereafter, the patient was shifted to ICU with oxygen and was kept under continuous monitoring for vital parameters. The attendants of the patient were advised to shift him to a tertiary care/higher institute but they did not show their willingness.
5. On December 31st, 2008 at 2.00 A.M. the patient suddenly started bleeding from his nose. Appropriate treatment was given to the patient and Dr. Sanjeev Ahuja, M.S. was called for a second opinion for treating the bleeding from the patients nose. At 2.30 A.M. the patient suffered a cardiac arrest. He was resuscitated with ambu bag. Cardio-pulmonary resuscitation was successful. Again the patients attendants were advised to shift him to a tertiary care/higher institute but they appeared reluctant. The patient was put on mechanical ventilator for assisting breathing. He regained normal heart beat and blood pressure. At 3.00 A.M. the attendants of the patient were persuaded to shift the patient to Post Graduate Institute of Medical Education and Research, Chandigarh (for short PGIMER). The patient was sent to PGIMER, Chandigarh in ambulance alongwith oxygen, artificial ventilation, a medical attendant and all the emergency drugs. He died there on January 1st, 2009.
6. Complainants filed complaint under Section 12 of the Consumer Protection Act, 1986 alleging it a case of medical negligence and deficiency in service against the appellant-opposite party No.1.
7. The appellant-opposite party contested the complaint by filing written statement wherein he denied the averments made in the complaint. It was stated that at the time of referral, the condition of the patient was stable. The patient died a natural death due to complication of intra-cerebral and intra-ventricular bleed caused by Thrombocytopenia. The death certificate issued by PGIMER, Chandigarh showed the patients death as a result of intracerebral and intra-ventricular bleed which was caused by Thrombocytopenia (Low Platelet Count). The patient did not die due to any complication of blood transfusion. The appellant had given treatment prudently and diligently with due care and caution. It was prayed that the complaint merited dismissal.
8. An inquiry was held and after inquiry (Annexure R-2), the Inquiry Officer after scrutinizing the record of treatment found that the death of the deceased was on account of intra-cerebral and intra-ventricular bleed caused by Thrombocytopenia (popularly known as dengue fever).
9. Both the parties led evidence before the District Forum in support of their respective claims.
10. The issue for consideration is as to whether the death of deceased was due to blood transfusion by the appellant-opposite party No.1 or not?
11. At the outset, the question that must be raised and answered is whether or not the appellant-doctor, who handled deceaseds case, acted with the degree of professional competence and prudence expected by the law.
12. It is not disputed that the patient was admitted in the hospital of the appellant with complaint of dengue fever. The appellant had transfused blood as the attendants of the patient were unable to arrange the platelets at local level, that is, at Jagadhri/Yamuna Nagar. Whether the blood could be transfused in the event of non-availability of the platelets is the precise question? The answer is in affirmative. Learned counsel for the appellant has referred to the literature of medical published under the heading of The Use of Fresh Whole Blood Transfusions by the SOF Medic for Hemostatic Resuscitation in the Austere Environment the relevant portion of which is reproduced as under:-
While the use of a single unit of warm fresh whole blood may only be roughly equivalent in volume to a single unit of CT, there are additional factors to consider. As shown in Table 1, WFWB does not need to be warned, has a higher concentration of RBCs, more platelets, 100% of its original clotting factors, and double the fibrinogen. All of these aid in the effectiveness of clotting and the transport of oxygen. A unit of WFWB also has fewer anticoagulants, which only worsen the coagulopathic condition you are trying to correct. The use of fresh whole blood (FWB) has been shown clinically to improve the ability of the blood to clot, and even reverse dilutional coagulopathy and provide a hemostatic effct comparable to ten units of platelets.
13. The learned counsel for the respondents-complainants has referred to the medical literature under the heading:
Asian Journal of Transfusion Science Medknow Publications Role of platelet transfusion in the management of dengue patients in a tertiary care hospital R.N. Makroo, V. Raina [.], and R.K. Kanth Additional article information Abstract Background and Objective While medical fraternity globally recognizes the role of platelet transfusion in the management of hospitalized dengue patients the exact indications and situations in which these are to be transfused may vary. Since there is inherent risk associated with the transfusion of blood/blood-component, it is imperative for each institution (or country) to lay their own criteria for transfusion of these blood components. The present study was conducted to lay precise criteria and transfusion trigger for platelet transfusion in our set-up.
In this article, the patients have been categorized in three categories. The patients with platelets count between 21000-40000 have been categorized as moderate risk and patients with count above 40000 but less to 1,00,000 have been categorized at low risk and in the low risk patient, it has been mentioned that the patients should not be given platelet transfusion and should be managed on intravenous fluids and supportive therapy.
14. The second article DOS AND DONTS FOR MANAGING DENGUE FEVER/DENGUE HAEMORRHAGEIC FEVER CASES published by Government of India published under the heading WHAT TO DO blood transfusion has been advised as under:-
In case of severe bleeding give fresh blood transfusion about 20 ml/kg for two hours. Then give crystalloid at 10 ml/kg/hr for a short time (20-60 minutes) and later reduce the speed.
15. In the inquiry held by the Administration, vide report Annexure R-2, the Doctor has held not to be negligent. Even the record of PGIMER Chandigarh, that is, patients summary does not indicate the appellant-opposite party negligence in giving medical treatment to the patient. No evidence whatsoever has been brought on the file to prove any medical negligence on the part of the appellant, rather, the record of treatment produced by the appellant shows that despite the advice given by the appellant, it was the complainants party who failed in arranging the platelets at local level and also delayed the arrangement of fresh blood. The above stated evidence needs to be viewed in the light of the law on the subject of medical negligence.
16. What constitutes medical negligence is now well established through a litany of judgments. Honble Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 has observed as under:-
1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.
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, 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 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 [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
5. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
17. In Martin F DSouza Vs. Mohd. Ishfaq (2009) 3 SCC 1, the Honble Supreme Court reaffirmed the above principles for determination of negligence by a medical practitioner and observed as under:-
From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.
18. Sufficient evidence is available on the record that the patient was treated by a qualified doctor taking all reasonable care and precaution and using his best professional judgment in carefully assessing his medical condition on the basis of clinical and pathological diagnosis/tests. The appellant-doctor had transfused the blood to the patient because of low platelets count and also that the attendants of the patients had failed to arrange the platelets. There is no evidence to conclude that the appellant was guilty of either medical negligence or deficiency in service as all efforts were made by the appellant to treat the patient. In the instant case what is particularly unfortunate is that the life of the patient could not be saved even in the P.G.I.M.E.R. Chandigarh and he died due to dengue fever.
19. In view of the aforesaid discussion, it has to be held that the District Forum has failed to appreciate the evidence in the correct perspective as also the principles laid down with respect to the cases of medical negligence and thus erred in allowing the complaint. Hence, the order under challenge cannot sustain.
20. For the reasons recorded above, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
21. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant-opposite party against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any filed in this case.
Announced:
08.05.2014 (Urvashi Agnihotri) Member (B.M. Bedi) Judicial Member (Nawab Singh) President CL