State Consumer Disputes Redressal Commission
Prem Kumar Batra vs Dr. O.M. Parmar (Ent Surgeon) on 27 March, 2009
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: 27-03-2009 Complaint Case No. C-91/2005 1. Shri Prem Kumar Batra, S/o. Late Shri Chaman Lal Batra, 1077, Sector-B, Pocket-1, VAsant Kunj, New Delhi 10070. 2. Smt. Santosh Batra, W/o. Shri Prem Kumar Batra, 1077, Sector-B, Pocket-1, VAsant Kunj, New Delhi 10070. .. Complainants Versus 1. Dr. O.M. Parmar (ENT Surgeon), S/o. Shri Moti Lal Parmar, H-73, Saket, New Delhi. . Opposite Party No.1 2. Dr. N. Nath Dutta, MD (Anaesthesia), S/o. Shri Pancha Nand Dutta, 216, Ashoka Enclave, Faridabad 121003. . Opposite Party No.2 3. M/s. Sukhadar Hospital, Through Dr. R.K. Gupta, Local Shopping Centre, Near R-Block, Opposite Pamposh Enclave, Greater Kailash Part-1, New Delhi. . Opposite Party No.3 4. Dr. Anita Sarkar, RMO, Panipat Refinery, Indian Oil Corporation, Panipat, Haryana. . Opposite Party No.4 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)
1. It is a case of alleged medical negligence. A child of 13 years was taken to the hospital of Opposite Party (in short O.P) No.3 for operation of tonsillitis, but the child never recovered from anesthesia and died.
2. The complainants are parents of the child and have sought a compensation of Rs. 90.00 Lacs for the loss of life, mental agony and torture and rs. 25,000/- as cost of litigation.
3. The case of the complainant in brief is that he took his son Gaurav Batra, aged 13 years, for check up and advice to OP-1 Dr. O.M. Parmar, ECT Surgeon, who examined the child and opined that the child was having tonsillitis and the best option was tonsillectomy and assured that there was no risk and that the surgery would be conducted at OP-3 Hospital. Accordingly the complainant took their son to OP-3 Hospital on 13-06-1995 at about 9.00 AM for the said surgery and after necessary medical tests the OPs opined that the child was fit for surgery. He was taken into the O.T at 9.45 AM. At 10.30 the OP-1 came out of the OT and informed that the child was fine and the child was brought out of the OT at 11.45 and shifted to Room No.210. However, the child was in an unconscious state when brought out of the OT and breathed his last in the same state. As per the complainants, the tragedy occurred as the OP-1 and 2 had left the child totally unattended in the ward during the recovery phase of anesthesia and was thus totally negligent. When the child did not recover from anesthesia the complainants asked the staff of OP-3 to call OP-1 doctor and after 1.30PM the complainants came to know that their son had died. As per the complainants the autopsy report revealed that the child had die d due to suffocation because of aspiration of blood and blood clots which directly resulted from the site of operation which was sufficient to cause death in ordinary course. As per opinion of experts from AIIMS, the bleeding, its aspiration and subsequent death were neither unforeseen nor unexpected during and after the procedure and were avoidable by due care by the surgeon and anesthetist since it was a known risk of the said operation.
4. OP-1 who is an ENT Surgeon who had performed the surgery while denying any negligence or deficiency in service came up with the version that the patient was seen by him and the anesthetist. He had operated the patient and finished the surgery at 11.10 am and the patient was transferred to the room around 11.20 am. He and the anesthetist had given the requisite instruction. Afterwards when the anesthetist and he had left at 12.00 Noon and at 1.10 PM he was informed by the hospital that the patient had developed respiratory problem. The father of the child talked to him to rush up and he immediately reached there and attended to the patient. The difficulty was such that the death can occur within 0-5 minutes. In support of this plea the OP-1 doctor has relied upon the medical literature Modis Text Book of Medical Jurisprudence and Toxicology Edited by NJ Modi, MB, MRCCP, London:-
Fatal Period:
Death occurs on an average from four to five minutes after complete withdrawal of air from the lungs, although cases have occurred in which death was almost instantaneous when the windpipe was blocked by a foreign body. Recovery may occur if treated within four minutes.
Postoperative Haemorrhage The most significant immediate complication of tonsillectomy is so called reactionary hemorrhage. By definition this occurs upto 24 hours postoperatively but the vast majority of reactionary or primary hemorrhages occur within the first 8 hours.
Reactionary hemorrhage is dangerous in two ways, first in the phase during which the patient is recovering from anesthesia before the cough reflex is fully established, blood in the airway can result in laryngeal spasm or can asphyxiate the patient by mechanically occluding the airway. Second hemorrhage results hypovolaemia which if not corrected results in peripheral circulatory failure (shock) and eventually death. Reactionary haemorhage after tonsillectomy is unusual occurring in about 0.5-1% of operations. The cause is unknown but it must represent bleeding from an artery or vein which had stopped bleeding t the time of surgery.
5. Cause of death as per post mortem report is suffocation because of vomitous, which was neither due to any medical negligence in the operation or for any other reason.
6. OP-2 is the anesthetist and he has also denied any negligence or carelessness in administering anesthesia. His version in brief is that the dose of anesthesia was as per standard form and there was nothing wrong with the dose of anesthesia. The patient had recovered from anesthesia and was transferred to post operative ward and was responding and his reflexes were OK. The job of the anesthetist is to ensure recovery of the patient immediately after the operation and nothing beyond that.
7. OP-3 hospital where the operation was conducted has absolved itself from the liability on the following premises:-
Firstly, the surgeon and anesthetist were not employees of the OP-3 hospital. The hospital merely provided services and infrastructure of the hospital. On the date of operation the surgeon admitted the patient in to the hospital. The duty of the hospital was merely to enter all the details regarding the operation and to prepare the patient for operation, record the history and obtain consent of the guardian.
The patient was given treatment in the post operative phase as per direction given by the surgeon and anesthetist. The records were maintained properly. Copies of the records are Ex. R3/1.
Secondly, there was no negligence on the part of the hospital staff and this is confirmed by the inspecting team of AIIMS who have absolved the hospital from any professional negligence and the same is Ex. R3/3.
Thirdly, when the patient started showing adverse reactions the resident medical officer took all steps to revive the patient and the hospital even requisitioned Dr. Bhattacharya, who again is not an employee of the hospital to try reviving the patient in the absence of the surgeon and anesthetist who were not present in the hospital. Intimation was given to the surgeon immediately but the surgeon arrived only after the patient had passed away.
Lastly, OP-4 who was the resident doctor happened to be on duty on that day and as a matter of fact there are no allegations of negligence or deficiency on his part as she was only on duty on that particular day.
8. At the outset the learned counsel for the complainant has referred to the judgment of the Metropolitan magistrate in the case registered under Sec. 304A, i.e. criminal negligence, whereby OP-1 doctor was convicted.
9. The negligence is of varied kinds. So far as medical negligence of treating doctor is concerned, other deficiencies in the service provided by the hospital except the services of treating doctor or para-medical staff, these are of varied nature and are distinguishable.
10. On the concept of medical negligence we have culled out certain criteria to test the allegations of medical negligence against hospitals and doctors based upon a plethora of judgments delivered by the Honble Supreme Court and English Courts starting from the Bolams case which is popularly known as Bolam Test named after the petitioner who filed a petition before the English Court.
These criterions 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?
11. Similarly we have also taken a view that for any kind of deficiency in service, may be for providing operation theatre or other facilities like para medical staff or nursing staff or doctors, also amount to deficiency in service on part of the hospital. In the instant case we find that as is apparent from the cause of death being suffocation and there was some inordinate delay in informing OP-1 doctor about the post operative complication of the child. There is no material on record to show that the child died immediately after the operation was conducted or anesthesia was administered. The problem started when there was vomiting and the child was shifted to the ward. It is not a case where the treating doctor was unskilled for treating the problem the child was suffering from. He was highly qualified and skilled in ENT Branch. Similarly there is no material on record that the anesthetist administered over dose and due to over dose of anesthesia the child had died. The cause of death is apparent.
12. It appears that OP-1 left the child at early stage in the hands of the resident doctors or other para-medical staff and the child had not regained full consciousness after the operation. Again when there was bleeding and it continued and the blood and clots as well vomiting resulted in suffocation and death. The deficiency in service was of limited nature and that too of the attending staff of the hospital and the operating doctor in leaving the child when he had not regained consciousness and in such operations these complications are likely to arise like vomiting etc. causing suffocation resulting in death.
13. In our view, both OP-1 and the hospital alone are guilty for the above said limited deficiency in service. Conviction of person under Sec. 304A, i.e. criminal negligence, is of no relevance so far as the quality and skillfulness and other factors are concerned. These have to be adjudicated on the basis of established medical procedure and practice and not on conjectures and surmises or emotions.
14. Foregoing reasons persuade us to allow the complaint on the following terms:-
i) OP-1 and 3 shall pay Rs. 75,000/- each amounting to Rs. 1.5 Lac, besides Rs. 10,000/- each as cost of litigation.
15. Complaint stands disposed of in aforesaid terms.
16. Order shall be complied with within one month from the date of receipt of a copy of this Order.
17. Copy of Order as per statutory requirements be forwarded to the parties free of cost and thereafter the file be consigned to record.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK