State Consumer Disputes Redressal Commission
Sudha Dhobriyal vs Employees State Insurance Corpn on 24 September, 2007
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: 24-09-2007 Complaint Case No. C-306/1999 Smt. Sudha Dhobriyal, Complainant W/o Sh. Puran Prakash Dhobriyal Through R/o E-1403, Netaji Nagar, Mr. Mohit Sood, New Delhi. Advocate. Versus 1. Employees State Insurance Corpn. Opposite Party No.1 Through its Director General, Through E.S.I. Head Quarter, Mr. A.P. Gupta, Panchdeep Bhawan, Kotla Marg, Advocate. New Delhi-110002. 2. Employees State Insurance Hosp. Opposite Party No.2 Through its Superintendent, Through Basai Darapur, Mr. A.P. Gupta, New Delhi. Advocate. 3. All India Medical Sciences, Opposite Party No.3 Through its M.S./Director, Through New Delhi. Mr. Sudhir Gupta, 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) Here is most unfortunate and sordid case of a young woman of 26 years who landed in the Opposite Party-hospital for delivery but the caesarian operation conducted upon her ultimately resulted in amputation of her both the lower legs due to spread of gangrene. She has been left to live like this for rest of her life and rear up her child as a helpless woman and hapless mother, though motherhood is itself a bliss.
2. She has through this complaint filed u/s 12 of the Consumer Protection Act, 1986 sought compensation of Rs.16,20,300/- alongwith 18% interest p.a. by way of following components:-
A. FINANCIAL LOSS FOR 19 MONTHS:
(I) On account of her salary - Rs. 65,500/-
Rs. 3500 x 19
(ii) On account of 2 years bonus - Rs. 10,000/-
(iii) On ac count of increments - Rs. 2,000/-
(iv) On account of keeping maid - Rs. 22,800/-
servant of Rs. 1200/- pm 1200 x 19 ____________ Total - Rs.1,00,300/-
(B) COMPENSATION
(i) Due to loss of her parts of body Rs. 10,00,000/-
(ii) Due to mental agony and Rs. 05,00,000/-
harassment.
(iii) Costs Rs. 20,000/-
Total Rs. 16,20,300/-
3. Facts of the case lie in moderate compass. Complainant is working as Operator Tunner with the ONIDA SAVAK LTD., Phase II, Noida (U.P.) and is being regularly charged by OP No.1-Corporation monthly contribution for her medical and other benefits. Opposite Party No.2-Hospital is working under the direct control and supervision of the OP No.1.
4. She became pregnant some time in April, 1997 and since then she was being regularly medically examined and checked by OP No.2. The complainant had neither any complications nor any problems during her pregnancy period as per records of OP No.2. On 06-01-1998 she visited OP No.2-Hospital for routine medical check up and medical examination. The doctor informed her that she was medically alright and pregnancy was very much normal and advised her to take certain medicines. On 08-01-1998 the complainant again went to the OP No.2- hospital for routine check up. The doctor told her that she was medically alright and her pregnancy was medically normal. However, since her expected delivery date was 14-01-1998, she was advised to come whenever labour pain developed. As per advice of the doctor of the OP No.2 she waited for her labour pain from 08-01-1998 till 15-01-1998.
But labour pain did not develop.
After waiting for a while, she visited the OP No.2-Hospital on 20-01-1998 along with her husband in morning OPD at about 9.30 a.m. for medical examination and check up. The doctors of the OP No.2-Hospital without any medical examination advised her to get immediately admitted in the hospital
5. That no medical efforts were made by the doctors of OP No.2 to develop labour pains on 20-01-1998. However at about 10 P.M. on 20-01-1998 doctors of the OP No.2-hospital started telling her husband that the condition of the complainant was critical and a major cesarean operation upon the complainant required to be done. The husband of the complainant strongly protested against the advice of the cesarean operation.
6. The doctors of OP No.2-hospital conducted the operation upon the complainant in negligent manner and that too without sterlisation of the tools and medical equipments used at the time of operation were against guidelines of the Medical Council of India. As a result there was infection to the operated part of the body of the complainant.
Due to the negligent acts of the OPs post operation complications arose. Even after the surgical operation and the delivery of the child the OPs had not stitched the wounds and the operated parts remained open till the same was stitched at AIIMS hospital on 19-02-1998. Immediately after the operation, the flow of blood in the veins of lower abdomen was stopped and both the lower legs of the complainant turned black. She had intermittent fewer after operation which was not properly conducted and diagnosed by OP No.2.
7. When the doctors of OP NO.2 realised that they had mishandled and spoiled the case of the complainant they immediately referred the matter on 28-01-1998 to Jaipur Golden Hospital, Rohini for lower limb vessels study and the said hospital sent its report with findings impression Normal Vessels study arterial, No evidence of deep veins thrombosis. Even after receiving reports from Jaipur Golden Hospital/OP No.2 did not give proper care and medical treatment to the complainant and as a result her condition further deteriorated.
8. On 03-02-1998 the OP No.2 informed the complainant that now her case is going to be referred be OP No.-AIIMS as her condition was further deteriorated. But strangely the doctors of OP No.2 did not send her to AIIMS till 06-02-1998. OP No.2 did not disclose the reason, despite demand, for withholding the complainant with the same ESI Hospital after referring her case on 03-02-1998 to AIIMS till 06-02-1998.
9. Doctors of OP No.3 after investigation diagnosed post partum gangrene B/L lower legs which was result of post operation. Doctors of OP No.3 conducted ultrasound on 10-02-1998 and after investigation diagnosed that there was serious cavity and infection in uterus because of the operation conducted by OP No.2. OP No.3 discharged her on 03-03-1998 without giving proper medical treatment. She was again admitted on 25-04-1998 and operation of amputation of both legs was carried out on 27-04-1998 and she was discharged on 06-05-1998 with the observation that she is 50% permanent handicapped. The complainant is still employed and working with the previous employer. Hence this complaint.
10. While controverting the allegations of the complainant the OP No. 2 has taken the preliminary objections that the complainant being covered under the benefits of ESI Act is not entitled to relief under the Consumer Protection Act as she is not a consumer and secondly that the complaint is barred by limitation u/s 24 A of the CP Act having been filed beyond the prescribed period of two years.
11. On merits the OP No.2 has come up with the following version/pleas:-
(i) That the complainant reported in the OPD for antenatal check up and was diagnosed as a case of post dated pregnancy with PET (Preclamtic Toxaemial). Both these conditions increase the risk to both mother and child and require hospitalization and therefore, she was explained prognosis. She had arrived with leaking PV (Par Vagina), which is a potent source of Infection.
The additional risk of PET & ruptured membranes at the time of admission was explained to her and her relatives and thus she was admitted for induction of labour. As the labour did not progress satisfactorily, so in the interest of the mother and child, a caesarian section was performed. A team of qualified and senior doctors who have been doing the same kind of surgery for the last 20 years conducted the operation. Whatever investigations are required for giving anesthesia during surgery procedures were done and as recorded in case-sheet are :-
- Autoclaved instruments were used during surgery.
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There was no neglect and no complication during operative procedures.
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Abdomen was duly and properly closed.
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She was put on Prophylactic antibiotics as is practice routinely.
(ii) As she had come with ruptured membranes she had already been exposed to infection outside the hospital and carried a higher risk of infection than a case who reports to the hospital with un-ruptured membranes.
However, this complication was unforeseen and she was put on prophylactic antibiotics. As the patient was running fever post operatively, swabs from various sites i.e. vagina and urine cultures were sent so that antibiotics cover could be changed accordingly. When the patient started showing signs and symptoms of venous thrombosis and wound infection she was referred to other specialists of the hospital i.e. surgical, Cardiology department, Physician and skin specialist and managed under their collective guidance on antibiotics, anticoagulants, other supportive measures as per following medical procedure and practice:-
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Dehiscence of wound (breaking of stitches) is not a very rare complication.
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Incidence of abdomen wounds infection following cesarean section is 3 15% (Faro 1990 Oren & Andrews 1994.
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Quoted incidence of cesarean section infection by Cunningham and Associates is 50%.
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such type of wounds are managed conservatively with antiseptic dressing till they become healthy for resuturing as otherwise if resutured earlier.
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incidence of recurrent infection is very high.
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It is unfortunate that the patient had developed severe infection and chloroquine reaction which led to the on set of thormbosis and later complications.
Williams obst 20th edition 548
(iii) That the patient had been diagnosed as a case of Deep Vein Thrombosis which though rare is known entity and more so in puperal patients (Post delivery) as is apparent from the following medical literature:-
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Thrombosis is more common is puperal patients when it may present in one of the severe forms.
(Integrated Obst & Gynae by Dewhurst IIIrd edition 443)
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Some patients with congenital or acquired abnormalities in fibriolyte system are more prone to intravascular thrombosis. (Oxford text book of surgery by Peter I Moris Vol I)
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Ante or post partum infection may predispose to septic thrombophelabitis.
(iv) As she was a suspected case of deep vein thrombosis which may have required thrombectomy or other vascular surgery which is a highly specialised surgical intervention and was not available at OP hospital, so in best interest of patient she was referred to Department of Vascular Surgery, A.I.I.M.S. for opinion. The complainant had been paid all the dues under the E.S.I. Act and she is still in service.
12. On the other hand the stand of OP No. 3 is that at AIIMS no charges whatsoever as consideration for the professional services rendered by the Hospital are taken and as such the activities of the AIIMS and its doctors and other supporting staff are outside the purview of the Consumer Protection Act.
13. While controverting the allegations of negligence, OP No.3 has come up with the following version/pleas:-
(i) That the patient was firstly admitted with OP No.3 on 06-02-1998. At the time of admission, the patient was having incision open wound at lower abdomen with puss. The patient was also having discharge from vagina and gave history of discotomy of legs for the last 10-15 days i.e. after 2-3 days of delivery on 22-01-1998 at some other hospital. The patient was also having bilateral gangrene of legs at the time of admission.
As per records irreversible changes had already taken place and she was having redness and swelling on lower side of both legs.
(ii) The complainant was transferred from ESI hospital in a bad shape and was admitted through causality. She had undergone a Lower Segment Caesarian Section (LSCS) whereafter possibly due to that the patient acquired the Gangrene of both lower legs upto knees and was also having post operative wound infection. She was provided with urgent treatment and medication. The patient was examined by all concerned including Gynae and surgery. She was thoroughly investigated for the cause of gangrene of both the lower legs and was managed by adopting a conservative line of action.
(iii) On examination on 10-02-1998 it was also found that her uterus was englarged to 12 week size with cervical OS open and as such she was suggested ultrasound to detect any portion of placenta or membranes remaining in uterus and a puss swab was taken from vagina and sent for culture and antibiotic sensitivity. The ultra sound carried out on 10-02-1998 showed retained products of conception in uterus.
(iv) To remove the remained products of conception, a minor procedure called Vaccum Aspiration of Uterus (VAU) was done on 12-02-1998, after obtaining written informed consent from the patient and her husband. The minor procedure was very much successful and the patient showed improvement.
(v) On examination it was found that there was local infection, gapping of wound upto rectus sheath. For this the patient underwent suturing of caesarian section wound on 21-02-1998 after giving informed consent. The patient showed improvement after the aforesaid two procedures and the condition of both the limbs had slowly but gradually improved.
(vi) That as the line of demarcation was not clear, the patient was advised to have a definite line of demarcation for level of amputation, before a decision on amputation could be taken or planned, as such the patient was discharged on 03-03-1998 to come again as advised. The patient had bilateral trans-metatatarsal amputation in both lower legs and as per assessment at AIIMS she was 50% permanent physical impairment in relation to both lower limbs.
(vii) OP No. 3 had done everything what would have been required of them and further in the said situation, the patient was given best treatment at AIIMS. The recognized course of treatment was adopted for the problem of the patient by the competent and qualified doctors.
(viii) That no charges whatsoever have been taken from the patient in respect of the treatment provided to the patient.
(ix) It is denied that the complainant was forcibly discharged from the Hospital, as alleged. It is further denied that the OP No.3 refused to entertain her, as alleged. The allegations levelled by the complainant against OP No.3 are false and frivolous.
14. We have heard the counsel for the parties at great length and accorded our careful consideration to the rival claims and contentions.
15. So far as the objection of OP No.1/ESI Corporation that complainant is not a consumer because free medical aid is being provided to the employees, it is wholly groundless as Supreme Court has recently approved the view that whosoever is member of the ESI and pays some contribution towards membership fees for availing medical facilities or treatment such a contribution amounts to consideration for hiring services or availing services of the employer. Moreover, the OP No.1/ESI Corporation is a State Insurance Company which insures employees against reimbursement of medical expenses incurred by the employee either in OP No.2s hospital or incase of emergency in the private hospital or by availing services of hospitals run by OP No.2 also. It is not the case that OP No.1 is a charitable institution and provides medical facilities free of charge to one and all irrespective of the person being its employee or private person. It raises fund by way of contribution by the employees towards reimbursement of medical expenses by providing insurance cover as well as medical cover by way of monthly contribution by the employee.
16. Even if we accept the contention of the counsel for the OP then the employees who have not incurred any medical expenses for the last 5 to 10 years then the contribution towards the ESI scheme he has been making was not a charity to the organization. It is only for the purpose of meeting out such eventuality or medical problems of the employee that the contribution collected by the OPs is to take care of these problems and therefore brings the contributor or the employee within the definition of consumer and the OP within the definition of service provider as contemplated by section 2(1(d) and 2(1)(o) of the Consumer Protection Act, 1986 which are as under:-
S. 2(1)(d) Consumer means a person who (ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose].
S.2(1)(o) Service means service of any description which is made available to potential [users and includes, but not limited to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
17. 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 holds 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)
18. 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.
19. 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 & Ors (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 V/s. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of the 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.
20. 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:-
(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.
21. 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 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)).
22. 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?
23. As is apparent, the deficiency in service by service provider like hospital is of varied kinds. In common parlance, medical negligence is understood as negligence of the treating doctor as to the line of his treatment being not as per medical procedure, or deficiency or negligence in operating the patient causing complications of various kinds. Similarly, there is medical negligence on the part of the doctor who undertakes the treatment of a patient for a disease which he is not competent to deal with or does a thing which he is not required to do and does not do a thing which he is required to do. However, the definition of deficiency provided by Sec. 2(1)(g) of the Consumer Protection Act, 1986 is so wide that it also takes in its fold the administrative deficiencies of the hospital. For instance, not providing blood to a patient who could die if blood transfusion is delayed for some time or not providing oxygen cylinder for want of which the patient is likely to suffer, some time fatal, or admitting the patient in the Nursing Home or hospital knowing it well that the doctors who are specialized and skilled for treating the patient are not available for some reason or the other. Sometimes, sanitary conditions of the hospital are so bad that it contributes to the worsening condition of the patient. Sometimes, the wherewithal and paraphernalia of the hospital who have very high reputation and claims themselves to be a five star or seven star hospital are not adequate.
24. Now comes the question as to which of the OPs is guilty of medical negligence that resulted in very sordid and unfortunate and most shocking result that a young woman who went for delivery returned without her legs and became permanently disabled for whole of her life and who are liable.
25. According to OP No.1 and 2 the complainant arrived with leaking PV, which according to them is a potent source of infection and therefore additional risk of PET and ruptured membranes at the time of admission was explained to her and her relatives before her admission for induction of labour. Since labour did not progress satisfactorily caesarian section was performed in the interest of the mother and child. OPs have come out with long explanation as to the treatment given by team of qualified and senior doctors and also various tests and procedures done by them. In nut shell the OP No. 2 have in their defence raised the plea that the complainant had come with ruptured membranes and therefore had exposed to infection outside the hospital and carried a higher risk of infection than a case who reports to the hospital with un-ruptured membranes and since she was running high temperature post operatively and when she started showing signs and symptoms of venous thrombosis and wound infection she was immediately referred to AIIMS as there were no surgical facilities for treating this problem available with their hospital, i.e. she was suspected case of deep Vein Thrombosis which may have required thrombectomy or other vascular surgery which is a highly specialized surgical intervention which was not available in the OPs hospital and therefore she was referred to Department of Vascular Surgery, AIIMS.
26. As regards OP NO.3- AIIMS it has taken the plea that at the time of admission in the Surgical Ward she was shown as a case of Gangrene of both lower limbs and post operative wound infection following a Caesarian section and on examination by Gynae consultant it was found that there was local infection, gapping of wound upto rectus sheath for which she had undergone suturing of the cesarean section wound on 21-02-1998 at AIIMS. AIIMS also found that her uterus was enlarged to 12 weeks size with cervical OS open and she had gangrene of both lower limbs. She was subjected to ultrasound etc. and procedure called Vacuum Aspiration of Uterus (VAU).
Though she initially showed signs of improvement but subsequently she had bilateral trans-metatarsal amputation.
27. OP No. 2/ESI Hospital has not come up with any convincing explanation as to what was the cause for signs and symptoms of venous thrombosis and wound infection immediately after performing caesarian section. According to them thrombosis is more common in puperal patients when it may present in one of the severe forms. In support of this OP No. 2 have relied upon medical literature contained in Oxford Text Book of Surgery by Peter I Moris Vo. I that some patient with congenital or acquired abnormalities in fibriolyte system are more prone to intravascular thrombosis therefore ante or post partum infection may predispose to septic thrombophelabitis.
28. We are sorry to point out that no such situation arose in the case of the complainant as she did not suffer from any congenital or acquired abnormalities in the fibriolyte system and therefore the only inference that can be drawn as to the development of intravascular thrombosis is that there was grossest kind of negligence in performing the caesarian section in such imperfect manner that even some products of conception were not removed and even the wound was not sutured and these factors caused the post operative complication viz. septic thrombo phelabitis. Had there been no negligence while performing the caesarian section and not taking postoperative care complainant would not have developed such severe infection and chloroquine reaction that led to the onset of thrombosis. Now comes the role of AIIMS. Admittedly the Doctors of OP No.3-AIIMS after investigation diagnosed post partum gangrene b/l lower legs which was the result of post-operation infection conducted by OP No.2.
29. So far as OP No.3 AIIMS is concerned the allegations of negligence have not been proved. The treatment given by the AIIMS shows that the complainant was attended by highly skilled doctors and specialists as they not only thoroughly investigated but also provided all possible treatment from the day of admission i.e. 06-02-1998 to 03-03-1998. Initially she was being managed by adopting a conservative line of action without any operation on the legs which was at later stage in the month of March became necessary as her condition became severe and therefore her both legs were amputated. As is apparent from the record of ESI Hospital and AIIMS the condition of the complainant had already deteriorated to such an extent because of development of gangrene which developed post-operatively due to severe infection and for non-removal of certain products at the time of caesarian operation and so much so even the wound was not sutured.
30. Aforesaid discussion leads us to hold OP No. 1 and 2 jointly and severally liable for grossest kind of medical negligence that led to the amputation of both legs of a young woman of 26 years who had gone for delivery and was subjected to caesarean section and became permanently handicapped for whole of life. She is a working-woman with a child. She had suffered immensely and would continue to suffer for whole life in every respect. Her miseries are unfathomable. Her loss of everything for rest of life is unimaginable. She is without her legs and has been rendered permanently disabled.
For mental agony, harassment, financial expenses, loss of salary, loss of expecetency of life, loss of general and marital life and burden of living without both the legs for whole of life we deem that a lumpsum compensation of Rs. 20 lacs which shall include the cost of litigation would meet the ends of justice.
31. OP No.3 is hereby absolved from the charge of medical negligence.
32. Complaint is allowed and disposed of in aforesaid terms.
33. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
34. Announced on the 24th September, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj