State Consumer Disputes Redressal Commission
B L Tiwari vs Jeevan Jyoti Hospital on 5 April, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. C/2001/110 ( Date of Filing : 17 Jul 2001 ) 1. B L Tiwari a ...........Complainant(s) Versus 1. Jeevan Jyoti Hospital a ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 05 Apr 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No.110 of 2001 1- B.L. Tiwari, aged about 47 years, S/o Sri Dayanand Tiwari, 2- Smt. Prem Lata Tiwari, aged about 42 years, W/o Sri B.L. Tiwari, Both resident of village, Pandey, PO, Jasra, District Allahabad. ...Complainants. Versus 1- Jeevan Jyoti Hospital, 162, Bai ka bagh, Lowther Road, Allahabad through its Director, Dr. A.K. Bansal. 2- Dr. R.K. Sharma, MD Medicine,Jeevan Jyoti Hospital, 162, Bai ka bagh, Lowther Road, Allahabad. 3- Dr. Alok Khare, Anaestheologist, Jeevan Jyoti Hospital, 162, Bai ka bagh, Lowther Road, Allahabad. .....Opposite parties. Present:- 1- Hon'ble Sri Rajendra Kumar, Presiding Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Amit Kumar Verma, Advocate for the complainants. Sri Manish Mehrotra. Advocate for the opposite parties. Date : 29.4.2022 JUDGMENT
Sri Rajendra Singh, Member-The brief facts of the complaint is that, that the on intervening night of 30/31 July, 1999 the daughter of the complainantsKm. Sandhya Tiwari, since deceased was sleeping in terrace, suddenly started crying and complained, patting her mother, of severe pain in stomach and breast. It was a clear symptoms of snake bite. She also started loosing her voice and her eyes stated closing. There was also a snake bite mark over her nose, which could visible by magnifying glass maintained by doctors and nursing homes for such purpose. In is an essential instrument. Without loosing any time, she was shifted immediately to Gauhaniya Nursing Home situated at about 3-4 Km. from her residence. The doctors expressed their inability to provide due treatment and discharged her with the medical advice to let the treatment done at some higher medical institution having necessary facilities of due medical treatment. Due to high profile propaganda and advertisements published in various newspapers, wall writings and exhibition through various T.V. Channels, the complainant's son Satish Tiwari, was impressed with the opposite parties' hospital and influenced with the said impression and with such bonafide belief as advertised that there is no other hospital better than "Jeevan Jyoti Hospital" determined to get the treatment done without caring for expenditures likely to be incurred for treatment with the sole intention of getting his sister cured and thereby save her life. He accordingly took her in this Hospital on 31.7.1999 at about 7.30 a.m. and got her admitted there with registration no.6390/995 and entire case history was narrated by Satish Tiwari to Dr. R.K. Sharma, opposite party no.2 and answered the question asked by him so as to apprise him of the matter to his entire satisfaction. The characteristics and symptoms physically present in the body were as below:
The patient was through conscious but unable to move and speak.
Speech and swallowing was difficult and saliva was being collected in the month.
Eye lids/Pupils were dilated all along.
The physical appearance was toxic.
The opposite party no.2 & 3 are the treating doctors in the "Jeevan Jyoti Hospital" Allahabad. But they took thematter in a casual way and the doctors without conducting any blood-test which was so essential in such case started giving treatment by prescribing medicines. They neither conducted any blood test nor any other relevant/correlated tests to the extent that they did not even ascertain the snake bite mark. Thus, the doctors have committed wrong and whole of the direction/course of treatment was changed from the very inception.Treating doctors were required to ascertain the cause of severe pain in chest and the other characteristics appeared physically. Thus, they had flouted the basic norms of professional ethics.
The opposite party no.2 had beenmaking questions about snake bites, but he himself failed and did not try to search the same over the body with the help of necessary equipment. The physical appearance of the patient was declared to be toxic and her eye lids/pupils were dilated all along. Thus, by first appearance blood test was essential and so was the search of snake bite mark but it was not done at all and the patient Km. Sandhya Tiwari lost her life due to this basic medical negligence.
After admitting his sister in the aforesaid hospital Satish Tiwari, had informed his father i.e. Complainant no.1 by telephone who is in Government service and at the relevant time was posted at Rajanandgaon in the state of M.P. now Chattisgarh. He although is not related with medical profession but had vast general experience and on the basis of his general knowledge, he suggested it the case of snake bite by symptoms and instructed his son to draw the attention of the treating doctor to the cause, snake bite and thereby the treatment must be done accordingly. There had been no improvement. The course of treatment itself was not on right track. On 1.8.1999 while the treating doctor was asked to provide the treatment of snake bite by Satish Tiwari as he was advised by the complainant no.1 to suggest the same to the treating doctor and requested him to observe the bite mark on nose by magnifying glass, the bite marks are generally invisible by naked eyes. But he did not do so and chided saying that "मुझे बच्चा समझते हो क्या". The treating doctors claimed 90% improvement while the fact remains that the condition of Km. Sandhya Tiwari, the deceased was deteriorating every moment. This deterioration was apparent. The condition became precarious to such an extent the patient was kept on artificial respiratory system in order to keep her breathing. While Satish Tiwari could understand that the life of his sister could not be saved, he requested the opposite parties that if the treatment is not within their control, they may refer the patient to some other hospital or call for some expert from other institutions/medical college etc., but even this humble request of him was turned down and he was publicly scolded and humiliated.
It is relevant to mention that the opposite parties doctors are general practitioners who did not take the help of any expert in the matter. They seemed shy of inviting the service of an expert, else they were fearing that this may not carry a good impression in the mind of public, although they were requested for it and the complainant's son Satish Tiwari was prepared to meet any expenses on this count. This course of action of opposite parties amounts to grave professional misconduct and medical negligence.
It is evident from the history sheet supplied by opposite parties that the treatment was based on one line of thinking without keeping in view:
Sudden onset of muscle weakness.
Loss of speech.
Progressive loss of respiratory function.
Progressive loss of cardiac functions inspite of all the treatment given.
Thus it is clear that no consideration of the above facts made at all and consequently they did not make any tests for adopting remedial measures. On account of which whole of the course of medical treatment was changed. This action of opposite parties is nothing but deficiency in service and medical negligence on their part. The doctors played with the life of daughter of the complainants and lost.
Dr. R.K. Sharma and Dr. Alok Khare the opposite parties no.2 &3 respectively, committed lapses in the chain of treatment and which amounted to their medical negligence and the overall result of such lapses and negligence can be described conjointly as 'deficiency in service'. The following instances would indicate the medical negligence.
That the opposite parties without taking note of the common features of snake bite continued their treatment on the line of Encephalopathy despite the fact that snake bite was clearly brought to their notice. It is also pertinent to state that at that time Allahabad was not affected by the fury of Encephalopathy. The opposite parties were not even prepared to listen to the family members and brother who was attending on her in hospital.
That to ascertain the deceased which was allegedly being detected/diagnosed by the opposite parties, the confirmation test of Encephalopathy terms as CSF test has not been done and thus, without following the norms of treatment, deceased has been ascertained which amounts to lack of proper skill and medical negligence.
That to ascertain the snake bite the doctors were asked for the bite markbut they failed to detect the bite mark and without following the proper medical course they summarily conducted that the case is not of snake bite and the line of treatment was diverted. It is also relevant to mention that in all cases, the bite marks are not visible from open eyes.
That it is further submitted that to ascertain snake bite the doctors could have conducted 'Cholinesterase estimation' test which is condition precedent but the opposite parties failed to do the above test. Thus they have flouted the norms of profession skill and preliminary diagnosis. This action clearly shows that the lack of adequate care on the part of doctors.
That another test i.e. 'Ophthelmic examination' by which it can be ascertained that it is a case of snake bite or not, has not been done. The attending doctors opposite party no.2 and 3 also failed to take note of albumen in the urine in the cases of bite by snakes of elapidae group albumen in the urine is always found due to damage to the kidney.
That it is also pertinent to state that prosis of the eyes is not the symptom of Encephalopathy and in the circumstances they failed to provide proper treatment on that line.
That the opposite parties did not conduct ultrasonography of kidney after obtaining a report of required blood test. This reflects total negligence and lack of normal adequate medical skill.
That a very common test known as "ECG" was done, while the cardiac function was progressively lowering down. The opposite parties were duty bound to conduct further test like TMT, Doppler test etc. But neither these tests were done nor the services of any cardiologist were availed. It is also relevant to state that the complainants were ready to bear all the expenses whatsoever. This shows that the opposite parties had ulterior motive to squeeze more money under the garb and name of other tests i.e. "ECG" test.
The opposite parties had not adequately cared to correctly diagnose the patient and adopting a proper course of treatment. They had been indulging in false propaganda but had not been indulging/complying to the services which they commit to offer publicly. This action of the opposite parties are liable to be punished for it according to law. The death of Km. Sandhya Tiwari, the patient then is the outcome of thegross negligence, lacks of reasonable treatment at the opportune moment and overall wrong diagnosis. Under the definition of 'deficiency of service' as found in section 2(1) (g) of the Consumer Protection Act, 1986 all these lapses and wrong error of judgment would amount to a fault or imperfection in the manner of performance of the medical duties in relation to the medical treatment of the patient.
The every right of life guaranteed under Article 21 of the Constitution of India has been denied to the deceased Km. Sandhya Tiwari by the wrongful and negligent manner of medical treatment resulting in her death. The life of this patient and right to live was thus, denied by the opposite parties. Not only a living life but right to health, rightful medical treatment and health care is also protected under Article 21 of the Constitution of India.
Dr. R.K. Sharma and Dr. Alok Khare being medical men are expected to have a normal medical skill. Both of them failed to show their performance and worth even as an ordinary professional skilled man. As symptoms were narrated and present on body a normal medical man of skill would have then and there understood that it is a case of snake bite. Both of them have committed a gross error of judgment which would not have been committed by any reasonable competent professional man and thus, this error of judgment cannot be said to be mere mistake but it can be terms as a colossal error landing them to damages. The opposite party no.1 should also be responsible by the acts of its employees and negligence can also be attributed to the functionaries and authorities of the hospital land the hospital itself is also liable for the consequences.
The complainant had incurred huge expenses in the purchase of medicines and other tests which run to Rs.6,422.00. The complainants being the parents of the deceased Km. Sandhya Tiwari are the most suffered person because of death of their beloved daughter.
The complainant no.1 for himself and his relatives had to incur expenses of Rs.10,000.00 in going and running to the Jeevan Jyoti Hospital over the transport and the charges in canteen. This amount also included loss of job for one month of the complainant no.1. The age of the patient i.e. the daughter of the complainants was about 20 years. Had she remained alive after being recovered and cured, she would have still lived 55 years more. Life span of 75, as held by the Judicial authorities is taken into account. The deceased was a first class student and taking worst she would have been earning atleast Rs.5,000.00 per month and therefore, being parents and natural guardian Rs.5,00,000.000 claimed by way of loss of future earnings due to negligence of the opposite parties.
The complainants have been denied consortium and solace of their daughter. For loss of consortium and solace and shortcoming of life span of Km. Sandhya Tiwari, since deceased, the complainants being parents claim Rs.3,00,000.00. The life long mental agony cause to the complainants cannot be measured in terms of money but still a very reasonable amount Rs.5,00,000.00. A registered legal notice dated 28.9.2000 was sent to opposite parties claiming therein compensation, which remain unresponded. The complainant has to incur expenses of Rs.3,000.00 in the cremation transportation of dead body.
The opposite party no.2 filed his written statement in which he has stated that he is well qualified (MD Medicine) and well experienced medical practitioner since last several years at Allahabad. It is further pertinent to state that the answering opposite party no.2 has been associated with opposite party no.1 Hospital (Jeevan Jyoti Hospital, Allahabad) since last few years and which has all the necessary infrastructure to meet the specific needs of the patients.
The present complaint has been filed against the answering opposite party wholly misconceived facts and without any basis whatsoever. In fact, only with a view to misguide this Hon'ble Commission, false and fabricated facts which are not at all supported by any material, have been pleaded by the complainant. The patient Km. Sandhya Tiwari was brought to the hospital on 31.7.1999 at 1.30 p.m. as a case of chest pain, breathlessness since early morning of the previous day, i.e. 30.7.1999. It may be pertinent to state that the patient had come to the hospital after an initial visit from one local hospital, Manas Polyclinic, Rewa Road, village Ghohania, District Allahabad with complaint and history of severe chest pain. The local doctor therein had given some injections to the patient and admittedly referred the patient to a cardiologist i.e. one Dr. Rajiv Mehra.
Immediately upon the admission a detailed prescription of the patient was drawn and all the relevant blood test and other tests were prescribed by the answering opposite party and which is also evident from the hospital records. Therefore, it is pertinent to state that all the adequate medical management measurements of the patient was under taken at the hospital by the answering opposite party to the best of his ability and judgment. The answering opposite party examined the patient carefully and advised relevant investigations, treatment and management. Patient also responded to the said treatment and at that stage the attendants of the patient were quite satisfied with the progress. The patient was diagnosed as a case of "Encephalopthy with respiratory failure", which in itself is a serious disease with high mortality rate. The patient was put on very efficient and latest choice of life saving drugs together with artificial respiration, but despite best efforts and treatment, the patient expired at 12.10 p.m. on 2.8.1999. The hospital maintains a systematic case sheet of all its patient, and the same has already been filed before this Hon'ble Commission by the complainant, to whom on his request it was provided by the hospital. At the time evidence it shall be further elaborate to demonstrate that the answering opposite party, scrupulously adhere to his "Duty of Reasonable Care and Skill" while attending to the concerned patient and hence, no deficiency of service whatsoever is attributable against him, either in the diagnosis or in the administration of treatment of the patient, based on best judgment. To the utter shock of the answering opposite party now at such a belated stage, i.e. post treatment of the patient, much against the actual facts, they are surprised to find an allegedly false case against themselves, on the ground that the answering opposite parties failed to treat the deceased patient, "as a case of snake bite". The answering opposite party categorically asserts that the setting up of the present case by the complainant, as a case of snake bite is a complete afterthought only with a view, unnecessarily to harass the opposite parties and malign their image.
While vehemently denying the false and fabricated allegations, pleaded by the complainant in the present complaint petition, the answering opposite party categorically asserts that there was no declaration whatsoever by the complainant about a snake bite being allegedly suffered by the patient. Neither any medical record which was shown to the attending doctor, at the time of admission of the patient, conveyed any fact of a snake bite to the patient. The clinical symptoms which were manifest with the patient and as evident form the medical records, seen by the answering respondent doctor were all indicative of chest pain and respiratory distress and for which the patient was duly treated.
At this stage, it may also be pertinent to state that at the insistence of the complainant, the body of the deceased patient was also referred to SRN Hospital, Allahabad for post mortem. It is pertinent to state that the post mortem report as well did not reveal any evidence of snake bite.
The opposite party no.3 filed his written statement in which he has stated that he is a highly qualified and well experienced Anestheologist of Allahabad and has been associated the respondent no.1 since last several years. The answering opposite party has had the experience of administering anesthesia to several thousand patients in his career with precision and high degree of care and caution.
The present complaint has been filed against the answering opposite party wholly misconceived facts and without any basis whatsoever. In fact, only with a view to misguide this Hon'ble Commission, false and fabricated facts which are not at all supported by any material, have been pleaded by the complainant. At this stage, the answering opposite party wishes to state that his role in the present case is only to the extent that on 31.7.1999 at about 3.40 p.m. the patient was brought to the operation theatre by the treating doctor in a serious condition with full wet breath sounds and she was having difficulty in breathing. Accordingly, as per well settled standard medical norms, Endotrachial suction was done to clear the air passage for smooth breathing. The answering opposite party also put a tube in the trachea and connected it with a ventilator for supportive respiration. The process adopted by the answering opposite party was successful as there after the breathing problem of the patient has considerably reduced.
The answering opposite party has also read over the written statements of opposite parties no.1 & 2 and fully adopts the stand taken by them as correct. However, the answering opposite party while reserving his right to submit any other fact before this Hon'ble Commission with its leave, is answering to only the specific paragraphs of the complaint petition which pertain to any direct or indirect charge against the answering opposite party as such. The answering opposite party categorically asserts that there was no declaration whatsoever by the complainant about a snake bite being allegedly suffered by the patient. Neither any medical record which was shown to the attending doctor, at the time of admission of the patient, conveyed any fact of a snake bite to the patient. The clinical symptoms which were manifest with the patient and as evident from the medical records, seen by the attending doctor were all indicative of chest pain and respiratory distress and for which the patient was duly treated.
It may also be pertinent to state that at the insistence of the complainant, the body of the deceased patient was also referred to SRN Hospital, Allahabad for post mortem. It is pertinent to state that the post mortem report as well did not reveal any evidence of snake bite.
It has already been stated to here in before that his role in the present case is only to extent that on 31.7.1999 at about 3.40 p.m. the patient was brought to the operation theatre by the treating doctor in a serious condition with full wet breath sounds and she was having difficulty in breathing. Accordingly as per well settled standard medical norms, Endotrachial suction was done to clear the air passage for smooth breathing. The answering opposite party also put a tube in the trachea and connected it with a ventilator for supportive respiration. The process adopted by the answering opposite party was successful, as there after the breathing problem of the patient has considerably reduced. No deficiency of service whatsoever is attributed against theanswering opposite party and the present complaint petition is liable to be dismissed out right by this Hon'ble Commission.
The answering opposite parties are all highly qualified and well experienced professionals and as it has been stated herein before, have duly discharged their duty of reasonable care and skill, while administering treatment on the patient and hence, all contrary suggestions and assertions made by the complainant against them is misconceived both in the eyes of law and facts. It is stated that the answering opposite party and the attending doctors of the hospital did their best and completely as per standard norms, treated the patient but despite best efforts, the patient could not be saved. Needless to add that the patient had come to the hospital and after initial treatment and management elsewhere, and hence, best possible management was offered to her in the very critical stage in which she had come to the hospital. No medical negligence as has been wrongly alleged against he answering opposite party is attributable against them.
It is further stated that the complainant has miserably failed to prove any case of medical negligence against the answering opposite party and hence, the present complaint is liable to be dismissed out right with costs in favour of the answering opposite party.
We have heard the learned of the complainantMr Amit Kumar holding brief of Mr Ashok Shukla and counsel for the opposite party Mr Manish Mehrotra . We have perused the pleadings, evidence and documents on record.
In this case the complainant vehemently argued that it is a case of snake bite and he asserted it at full strength and determination as if he has seen the snake - during snake bite. The complainant has specifically stated in his complaint that there was a snakebite mark over her nose . If it was so that why did he compel the doctors to search the mark of a snakebite on the body of the deceased. In whole of the complaint case the only gown taken by the complainant is snakebite. So we are also concentrating our discussions towards snakebite. Before going to the snakebite process precautions and care, it is better to know about the snakes and snakebite. That causes due to snakebite of venomous snakes. Which venomous snakes are common in India?
About 7,000 venomous snake biteTrusted Source cases are reported every year in the United States. A bite from a venomous snake is rarely deadly -- about 6 fatalities are reported every year -- but it should always be treated as a medical emergency. Even a bite from a harmless snake can be serious, leading to an allergic reaction or an infection. Venomous snake bites can produce an array of symptoms, including localized pain and swelling, convulsions, nausea, and even paralysis.
First aid steps you can take after a snake bite occurs include cleaning the wound, remaining calm, and immobilizing the affected area. However, it's essential to get to a medical facility immediately for emergency treatment. If treated in time, the outlook for recovery is good.
If you are unfamiliar with the different types of snakes and unable to distinguish between venomous and non-venomous ones, it can be difficult to know how to respond in the event of a bite. Always treat a snake bite as if it's venomous.
While most snakes in India are not venomous, several types do contain venom. In the U.S. all of the venomous snakes, except for the coral snake, are pit vipers. Pit vipers are distinguishable by a noticeable depression between the eye and nostril. This pit is the heat-sensing area for the snake. While all pit vipers have a triangular head, not all snakes with a triangular head are venomous.
If you or someone you are with has been bitten by a snake, you will know immediately. It's possible, though, for the bite to happen quickly and for the snake to disappear.
To identify a snake bite, consider the following general symptoms:
two puncture wounds swelling and redness around the wounds pain at the bite site difficulty breathing vomiting and nausea blurred vision sweating and salivating numbness in the face and limbs Some venomous snakes also cause symptoms specific to their type.
Marks of Snake bite Snake bites are particularly important in children. The clinical course of a child after a snake bite tends to be more severe than that of an adult, because children receive a larger per kilogram dose of venom.
Teeth of Venomous Snake The World Health Organization (WHO) estimates that about 5 million snakebites occur each year, resulting in up to 2.7 million envenomings. Published reports suggest that between 81,000 and 138,000 deaths occur each year. Snakebite envenoming causes as many as 400,000 amputations and other permanent disabilities. Many snakebites go unreported, often because victims seek treatment from non-medical sources or do not have access to health care. As a result it is believed that many cases of snakebite go unreported.
Snake antivenoms are effective treatments to prevent or reverse most of the harmful effects of snakebite envenoming. They are included in the WHO Essential Medicines List and should be part of any primary health-care package where snake bites occur.
Unfortunately many people either lack access to antivenom, or cannot afford to pay for them. Many families sell possessions or go into debt in order to obtain antivenom after someone is bitten. Difficulties in ensuring proper regulation and testing of antivenoms also affect the availability of good quality, effective products.
WHO added snakebite envenoming to its priority list of neglected tropical diseases (NTDs) in June 2017. A nationally representative study( Million Death study) noted-45,900 annual snakebite deaths nationally. In India, around 90% of snakebites are caused by the 'big four' among the crawlers - common krait, Indian cobra, Russell's viper and saw scaled viper. Effective interventions involving education and antivenom provision would reduce snakebite deaths in India. In cobra bite maximum 60 minutes is to save the life.
Common Indian krait venom contains both presynaptic beta bungarotoxin and alpha bungarotoxin. These toxins initially release Ach at the nerve endings, at neuromuscular junction and then damage it subsequently preventing the release of Ach. Irrespective of Krait, its venom is 10 times more lethal than cobra.
Cobra venom is of smaller molecular size and rapidly absorbed into circulation. Absorption is further accelerated by threat of death, running and hence the liberated catecholamine and running due to fear can kill the victim within 8 min. Cobras unlike the krait deposit its venom deeply. This in combination with hyaluronidase allows spreading of the venom to occur rapidly and symptoms to arise abruptly. Interestingly, this rapidity of onset of symptoms prompts the rural victim in India to seek care quickly after cobra bite. [9] Severe, irreparable local tissue is lost at the bite site of cobra envenoming due to myocytolysis. Cobra venom is rich in postsynaptic neurotoxins called alpha-bungarotoxin and cobratoxin. Cobra venom binds especially to Ach receptors, prevents the interaction between Ach and receptors on postsynaptic membrane result in neuromuscular blockade. Cardio- toxin content of cobra venom has direct action on skeletal, cardiac, smooth muscles, nerves and neuromuscular junction causes paralysis, circulatory, respiratory failure, cardiac arrhythmias, various heart block and cardiac arrest because the venom releases calcium ions from the surface membrane to the myocardium.
Common Indian krait venom contains both presynaptic beta bungarotoxin and alpha bungarotoxin. These toxins initially release Ach at the nerve endings, at neuromuscular junction and then damage it subsequently preventing the release of Ach. Irrespective of Krait, its venom is 10 times more lethal a than cobra. But unfortunately unlike as in cobra bite, the victim reports too late due to delayed clinical manifestations. Krait is nocturnal in habit. Its fangs are small size like that of insulin needle. It injects the venom into skin or skin deep. It accidentally bites a person sleeping on floor bed. Though venom is of small molecular size it is absorbed slowly as skin has poor circulation and reflexes are blunted during sleep. Neuromuscular blockade by the short chain neurotoxin (cobra toxin, alpha bungarotoxin) is more readily reversible than with a long chain toxin (beta bungarotoxin). Beta bungarotoxin in the krait venom bears similarity to botulinum toxin. Preserved tendon reflexes in botulism differentiates it from krait bite. Krait venom has a great affinity towards presynaptic Ach receptors. Thus, the tissue having high concentration of this receptors are affected in the following order, such as sphincter pupillae, levator palpebral superioris, neck muscles, bulbar muscles, subsequently limbs and lastly the diaphragm and intercostals muscles. Venom acts as early as 30 min and till 18 h. Envenoming by krait has an early phase profound paralysis which lasts for 30 to 60 minutes, followed by deep paralysis phase which lasts for 2 to3 days and then recovery phase ranging from 2 to 3 weeks.
Viper venom interferes with blood clotting. Venoms contain serine proteases, metalloproteinases, C-type lectins, disintegrins, and phospholipases, and it exhibits both anticoagulant and procoagulant effects on blood clotting mechanism resulting in defibrination syndrome or disseminated intravascular fibrino-coagulopathy. Russell's venom is a rich source of enzymes that activates factor X to convert prothrombin to thrombin in presence of calcium factor V and platelets thus Russell's venom contains several different "pro-coagulants" which activate different steps in the clotting cascade. The fibrinolytic activity of the viper venom is so fast that sometimes within 30 min of the bite, the coagulation factors are so depleted that blood does not clot. Russell's venom activates the clotting system of the snake's natural prey with such speed that Macfarlane a brilliant hematologist was "left feeling it is almost too clever to be true." Haemorrhagins-1, 2 and metallo-endopeptidase causes acute rapid bleeding in brain, lungs, kidney, heart, and gastrointestinal tract. It causes severe vasoconstriction followed by vasodilatation of the microvessels. Endothelial gaps due to disintegration of the endothelial cells within intracellular edema, swollen mitochondria, dilated endoplasmic reticulum, and separation of intracellular junction of the endothelial cells. Local loss of basement membrane of the vessels leads to capillary leaking syndrome and a resistant shock.
Now it is clear that in India there are three main types of venomous snakes. The teeth of a snake is somewhat curved and when it bites anyone, it leaves its specific mark visible by the naked eye. There is no need to search it by a magnifying glass. The other condition of venomous snakebite is colourchanging of the body mainly the tongue which turns blue and thereafter the whole body turns blue. As we have seen the time zone which is fatal in a case of snakebite. In this case the complainant took her daughter firstly to some other hospital and thereafter to the hospital of opposite party where she reached on 31.07.1999 at about 7:30 AM. She died on 02.08.1999. On reaching the hospital she was checked by a team of doctors and necessary medicines have been given to her. All the documents and papers have been filed by the opposite party in the court. The complainant stated that it is a case of snakebite with such determination and confirmation that now it was on him to show that there is snake bite mark on the nose. The snakebite mark is peculiar and a Dr can very well recognised it immediately. Nose is a conspicuous part of the body where one can very well see the mark of snakebite if it would have been there. So the story of snake bite does not seem convincing.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. SanthaIII(1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC 513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent. This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
In this case the doctor provided all the necessary medicines and care which was necessary and circumstances and the theory of snake bite could not be proved by the complainant. If it would have been a snakebite, she may not survive for 2-3 days. Her body was also sent for post-mortem on the request of the complainant and no report regarding snakebite has been given anywhere. So the burden that it was a case of snakebite was totally on the complainant because he asserted vehemently this fact before this court. All the articles regarding venomous snakes and its bite have been discussed above and the present case did not fit in any of the category of the snakebite. If the snakebite mark on the nose was so conspicuous, why did the Dr take risk of avoiding it when he knows that it will adversely affect his career and reputation of his hospital. In this case the principle of res ipsa loquitur does not apply. This is not a case of snakebite. Keeping in view all the circumstances and treatment given by the opposite party, it is not the case of medical deficiency in any way. So the present complaint is level to be dismissed.
The Complainant is dismissed. Cost on parties.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record room. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Jafri, PA II Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER