State Consumer Disputes Redressal Commission
Lallu Lal S/O.Late Shri Gendilal Ji ... vs Dr.A.L.Kriplani, Bombay Hospital & ... on 31 July, 2015
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE
CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No.
CC/00/318
1.
Lallu Lal S/o.Late Shri Gendilal
Ji Sunar
R/o.
House No.2148, Gali Gulji Dhabhai, In front of Gangauri Gate, Gangauri
Bazar, Jaipur.
2.
Smt. Dhanwanti Devi w/o. Shri Lallu Lal
b/c.
Sunar, R/o. House No.2148, Gali Gulji Dhabhai, In front of Gangauri
Gate, Gangauri Bazar, Jaipur.
...........Complainant(s)
Versus
1.
Dr.A.L.Kriplani,
Bombay Hospital & Medical Research Centre,
12, New Marine Lines, Mumbai.
2.
Dr.Shankar Lal, Bombay
Hospital &
Medical Research Centre, 12, New Marine Lines, Mumbai.
3.
Nurse, Bombay
Hospital, Mumbai,
who was on duty on 31/12/1997 at Kidney Patient Ward (Dr.Kriplanis
Unit) in the morning,
Through
Chairman, Bombay
Hospital &
Medical Research Centre, 12, New Marine Lines, Mumbai.
4.
The Chairman, Bombay
Hospital &
Medical Research Centre, 12, New Marine Lines, Mumbai.
5.
Bombay Hospital Mumbai through the
Medical
Director, Bombay
Hospital &
Medical Research Centre, 12, New Marine Lines, Mumbai.
............Opp.Party(s)
BEFORE:
Shashikant
A. Kulkarni, HONBLE PRESIDING MEMBER
Narendra
Kawde, HONBLE MEMBER
For
the Complainant:
Adv.Padmnabh
Pise a/w.Adv.Gauri Khanvilkar
For
the Opp. Party:
Adv.Y.C.
Naidu for the opponent no.1.
Adv.Anita
Marathe for the opponent no.4 and 5.
ORDER
Per Mr.Narendra Kawde, Member [1] Complainants are parents of Yogesh Kumar who was their son died on 08/02/1998 as he was allegedly discharged on false ground when medical attention of opponent no.1 was badly needed to continue to treat for renal failure in critical condition. Complainant no.1 is very senior citizen diligently prosecuted this consumer complaint which was lying in sine-die list. The complaint was taken on board for hearing and early disposal. Before we proceed, it is necessary to place on record description of opponent no.1, 4 and 5 against whom allegations have been made. Dr.A.R.Kriplani, opponent no.1 is consulting nephrologist and in-charge of artificial kidney unit of opponent no.5 hospital. Opponent no.4 are trustees who are managing opponent no.5-Bombay Hospital and Research Centre who are made parties respectively through their Chairman and the Medical Director.
Opponent no.2 and 3 are entities attached to opponent no.5.
[2] Case of the complainants in brief:-
(i) Shri Yogesh Kumar [hereinafter to be referred as patient] son of the complainant was employed as constable in CRPF and was working with Custom Department of Govt. of India at Jaipur. He was suffering with disease of kidney. Yogesh was convered under C.G.H.S. Dy.Director, Central Govt. Health Scheme, Jaipur referred Yogesh Kumar for transplant of kidney to opponent no.5 hospital. Complainant no.1 first approached along with his ailing son to opponent no.5 on 06/04/1997 where he met opponent no.1 doctor for further treatment and management of the patient. On advice of opponent no.1 complainant managed to get advance amount of Rs.1,48,000/- for treatment of the patient from CGHS, Jaipur.
Simultaneously, as advised by the opponent no.1, kidney donor Shri Raj Kumar was kept ready and was brought to opponent no.1 at Bombay Hospital to facilitate transplant of kidney as per prescirbed procedure.
On receipt of the demand draft, opponent no.1 undertook to continue to treat the patient. Patient was admitted in opponent no.5 hospital first time in general ward and then paying ward under the care and treatment of opponent no.1. On first occasion the patient was admitted on 08/04/1997 and discharged on 16/04/1997 in free ward. Second time admitted on 02/06/1997 and discharged on 05/06/1997. Third admission was on 21/06/1997 and discharged on 24/06/1997. While admitting and discharging the patient on these occasions, opponent no.1 advised haemodialysis twice/thrice a week.
However, last admission of the patient on 24/12/1997 with discharge on 31/12/1997, no advice whatsoever was recorded in the discharge card except certain medical prescriptions.
The patient was discharged by the opponent no.1 on the complaint of an attending staff nurse for allegedly slapping her by the patient early in the morning of 31/12/1997.
Complainant no.1 urged in writing on the day of discharge and thereafter on 03/01/1998 to continue the patient under the attention and medical care of the opponent no.1 as the patients condition was deteriorated and discharging in such a critical condition on alleged flimsy ground was against the medical ethics. However, written requests though delivered to the opponent no.5s office but to the dismay of the complainant, patient was discharged on 31/12/1997 and that too without any follow up and medical advice.
(ii) Thereafter, the patient along with his parents was forced to stay in Dharmashala in Mumbai and thereafter complainants took the patient to AIIMS Hospital at Delhi for treatment. However, since the patient was not accommodated at AIIMS, the complainant in such circumstance proceeded to Sir Gangaram Hospital at Delhi with patient where he was put on dialysis.
Thereafter, on discharge from this hospital, complainant had returned along with patient to Jaipur on 04/02/1998 and managed to admit him to Santoka Durlabhaji Hospital. However, the patient died on 08/02/1998 in the said hospital due to cardiac arrest due to ESRD septicamiea hepatitis B positive of case of chronic renal failure.. The complainant has attributed death of their son to negligent attitude of opponents more particularly opponent no.1 and 5 for forceful discharge on 31/12/1997 on alleged flimsy incidence which costs them the life of their son.
The consumer complaint has been filed claiming total amount of compensation of Rs.14,50,000/- with interest @18% p.a. [4] REPLY OF THE OPPONENTS IN BRIEF (A) Reply of the Opponent no.1:-
(i) Opponent no.1 filed written version challenging point of limitation. According to the opponent, last medical service offered to the patient was on 31/12/1997. Consumer complaint has been filed on 05/02/2000 i.e. beyond limitation.
Complaint is not tenable against him as no consideration has been received by him, he is honourary doctor at opponent no.5s hospital and services rendered by him are free of costs as no remuneration is paid to him. Therefore, he is not a service provider and claimed exemption from the purview of Consumer Protection Act, 1986. Further, it is stated that complaint suffers from non-joinder of necessary parties as patients wife is not made party. The patient who was professional wrestler was aggressive and violent by temperament.
The said patient slapped the staff nurse on 31/12/1997. The opponent admitted diagnosis of the disease as disease of the kidney [renal failure] and treatment offered initially in the free ward of opponent no.5 hospital effective from 08/04/1997 to 16/04/1997. According to this opponent, the patient was diagnosed for chronic renal failure in the year 1993-94 and patient was without dialysis until March 1997. The disease progressed to END STAGE RENAL DIESEASE [ESRD] i.e.life is not possible without dialysis. Patient was put on dialysis by him and was advised kidney transplant and he has issued an estimate of Rs.1,85,000/- towards the expenses of renal transplant surgery. Though the complainants with patient approached to his private clinic on 03/06/1996 along with donor for providing diagnostic test reports carried at his private clinic, but complainant never paid the fees of Rs.3,250/-. Competent Authority [D.M.E.R] of Govt. of Maharashtra granted permission for kidney transplant on 08/08/1997 which was valid for 90 days till 07/11/1997. Complainants along with patient failed to approach him and they called on only after gap of two months accompanied by kidney donor.
The patient was admitted and discharged on four occasions as follow and was treated as per the standard protocol:-
i.
08/04/1997 to 16/04/1997 [free ward] ii.
02/06/1997 to 05/06/1997 iii.
21/06/1997 to 24/06/1997 iv.
24/12/1997 to 31/12/1997
(ii) This opponent has finally treated the patient during the period of last admission and discharge. Thereafter, he is not aware of status of the patient and only came to know about the demise of the patient after filing this consumer complaint by the complainants.
(iii) On morning of 31/12/1997, junior nurse, namely, Rashmi Palav, while she was on routine round to check up temperature, blood pressure and pulse of the patient, she was slapped by the patient, Yogesh Kumar Soni. Said nurse immediately lodged a complaint in the ward and in turn on knowing the incident he proceeded immediately to the patient to enquire about the incidence.
The patient acknowledged the incidence stating that the staff nurse was waking him up when he wanted to sleep longer. On consulting the hospital and nursing staff, this opponent concluded that behaviour of the patient was unacceptable though he was of sound mind and there was no mental derangement to mitigate his behaviour.
On 30/12/1997 procedure of A.V.Fistula to facilitate HMD was carried out on the patient. On this background, the patient was advised to take discharge on 31/12/1997 with further advice to visit the hospital on OPD basis for haemodialysis. Since kidney transplant could not be carried out within the permitted given time, an amount of Rs.99,322/- out of the total deposit of Rs.1,48,000/- was refunded to CGHS through complainants.
Thus, opponent no.1 justified his action to discharge the patient on 31/12/1997 on the ground of alleged misbehaviour of the patient and claimed no medical negligence leading to deficiency in service as alleged.
(B) Reply of the Opponent no.4 and 5:-
(i) Opponent no.4 and 5 filed their written version jointly supporting the version of opponent no.1 in general with specific averments stating that opponent no.4 is charitable trust and running the opponent no.5-hospital. Opponent no.1 is not their employee nor they employ any doctor but opponent no.1 works with them on honourary basis. For positive conclusion in this complaint, extensive evidence of witness including that of expert is required which is not possible under the provisions of Consumer Protection Act, 1986. The patient was admitted and treated by group of highly trained and vastly experienced doctors. Patient was treated outside their hospital after 31/12/1997 after final discharged and expired on 08/02/1998 therefore these opponents are not concerned with the treatment administered outside their hospital. The proposed donor of the kidney, namely, Rajkumar Soni refused to donate his kidney due to delay. Therefore, the complainant was advised to find another donor.
Prior to final discharge, 31/12/1997, haemodialysis was done again and minor surgery [A.V.fistula] was performed a day earlier to facilitate haemodialysis. These opponents reiterated the version of opponent no.1 about the incidence of slapping by the patient to the staff nurse, Mr.Rashmi Pallav and stated there is admission of incidence by the patient (since deceased). The patient was finally discharged on 31/12/1997 due to misbehaviour of the patient with the staff nurse. Patient was advised to visit the hospital on regular basis as an out patient for the purpose of haemodialysis. The balance amount of Rs.99,322/- out of Rs.1,48,000/- after deducting charges for medical treatment and hospitalization was refunded to the CGHS through the complainants since kidney transplantation could not be carried out. They have denied deficiency on any count on their part and prayed for dismissal of the complaint.
[5] Opponent no.2 and 3 were not represented through out the proceedings may be because opponent no.2 and 3 are part and parcel of opponent no.5 though in cause title are shown as separate entities [6] EVIDENCE OF THE COMPLAINANTS :-
(a) Complainants have relied on the following documents :-
(i) Complainants written representations dated 31/12/1997 and 03/01/1998 addressed to the opponent
(ii) Opponent no.5s discharge cards [in all four].
(iii) Letter dated 08/08/1997 from competent authority permitting kidney transplantation.
(iv) Hospital case papers signed by the opponent no.1 and medicos of opponent no.5.
(v) Patients personal employment profile.
(vi) Case papers at AIIMS and Gangaram Hospital.
(vii) Death certificate issued by Santokba Dirlabji, Memorial Hospital.
(viii) Affidavit in lieu of evidence.
Written representations dated 31st December, 1997 and 3rd January, 1998 addressed to the opponent no.5 pertains urging to continue to treat their son, the patient under the care and supervision of opponent no.1 in their hospital. Complainant produced on record the discharge cards of opponent no.5 hospital of four occasions which have been issued by the opponent no.5.
Permission of D.M.E.R., Govt. of Maharashtra for transplantation of kidney addressed to opponent no.5 hospital, case papers and the affidavit evidence. OPD case papers of AIIMS and Sir Gangaram Hospital, New Delhi and death certificate issued by Santoka Durlabhaji Hospital, Jaipur where the patient breathed his last with the cause of death recorded as cardiac arrest due to ESRD septicamiea hepatitis B positive of case of chronic renal failure..
(b) Consistently, it is the case of the complainant undisputedly that their deceased son was suffering from kidney disease and with the arrangement of finances from C.G.H.S.Jaipur [since the deceased was covered under this scheme] reference was made to the opponent no.5 hospital for not merely carrying out haemodialysis and medication, but for carrying out the transplantation of kidney. Admittedly, the complainant kept ready and brought with them kidney donor, namely, Rajkumar Soni. The complainant first approached the opponent no.1 on 02/06/1997.
Opponent no.1 treated the patient in free general ward during 08/04/1997 to 16/04/1997 and thereafter on receiving the amount of Rs.1,48,000/- from C.G.H.S. After completing formalities of patient and donor, opponent no.5 made reference for obtaining permission for kidney transplant and permission was finally received from D.M.E.R. by letter dated 08/08/1997. The permission was valid for 90 days expiring on 07/11/1997.
During this permitted period, complainants were not available in opponent no.5s hospital since patient was already and discharged on 24/06/1997. Patient again reported and admitted to the opponent no.5 on 24/12/197 till 31/12/1997. Opponent no.1 and 5 on receipt of the permission failed to give intimation to the complainants.
(c) Written request of the complainant no.1 [in hindi] not to discharge the patient on the unsustainable ground of misbehaviour of the patient though received by the opponent no.5 was not honoured nor any reply thereto was ever given to the complainant. Patient was thus forcefully discharged due to alleged misbehaviour though the patient condition was deteriorating and badly needed medical care and attention of opponent no.1. First three discharge reports do contain the medical prescription and further advice for haemodialysis firstly twice and then thrice a week with certain medical prescription. However, though the last discharge report does indicate medical prescription but does not include further medical advice as to what to be done by the patient. On refusal to retain the patient by opponent no.1 and 5 for continued medical treatment complainants with patient, proceeded to AIIMS and Sir Gangaram Hsopital, at New Delhi. At Gangaram Hospital, the patient was put on dialyses and finally returned to Jaipur for admission and treatment in private hospital where patient was declardd dead on 08/02/1998. Cause of death is recorded is cardiac arrest due to ESRD septicamiea hepatitis B positive of case of chronic renal failure.
[7] EVIDENCE OF THE OPPONENTS :-
i Hospital case papers, ii Discharge reports, iii Affidavit evidence of opponent no.1, 4 & 5.
iv Affidavit evidence of Dr.Mohan Biyani, v Affidavit of Dr.Alen Fernandes Almeida, vi Affidavit of Rashmi Palav, staff nurse.
[A] Affidavit evidence of the opponent no.1, 4 and 5 reiterate what is already stated in their written version. Dr.Mohan Biyani who is experienced nephrologist has submitted his affidavit supporting opponent no.1 who at that time was working with him. According to him, he was attending the patient and recorded his note in the hospital case papers. The patient was fit for discharge and did not require any indoor setting. During the long interval, he remembered the patient had assaulted nurse attending upon him by slapping her when she tried to wake up the patient to record the vital parameters. The incidence was widely discussed in the nursing staff and ward boys.
Assaulting a staff nurse according to him that too a lady was most despicable act. At the time of discharge of the patient on 31/12/1997, the patient had internal jugular vein dialysis double luman, catheter to enable repeated haemodialysis.
[B] Affidavit of Ms.Rashmi Pallav, the staff nurse unequivocally states that when she approached the patient, early morning on 31/12/1997 he was sleeping, therefore, she made him to wake up to carry out routine check-up. As soon as the patient woke up, he got up and slapped her with great force.
She was aghast and was heart with a server pain. She immediately, reported the sister incharge, namely, Mrs.Shaikh for further necessary action. Patient was of sound mind. His vital indicators were not critical and with no mental derangement to support his rowdy behaviour. In this circumstance, the patient was discharged from the hospital.
[C] Dr.Alen Fernandes Almeida, who is professor of Nephrology at Sir.G.S.Medical College of K.E.M.Hospital, Mumbai filed his expert opinion on affidavit to support the method of treatment of dialysis stating that dialysis can be performed by two method, namely, (i) Ambulatory Peritonial and (ii) MHD Maintainance Hemo Dialysis. The treating nephrologist can adopt any of two procedures depending upon the patients clinical settings. In the case of patient, procedure for MHD vide AV fistula was carried out. This procedure is normally carried out on OPD/day care patient depending upon prevailing medical condition. This expert made it further clear in para 3-t of his expert opinion stating as below :-
The procedure of A-V Fistula is normally carried out on an OPD/Day Care basis depending upon the patients then prevailing medical setting. Patient is only required to follow up with the treating doctor/operating doctor for periodical check ups to enable the treating doctor/operating doctor to gauge that the A-V Fistula has matured.
[8 ] SUBMISSIONS BY THE PARTIES :-
Heard learned advocate Mr.Padmnabh Pise along with Adv.Gouri Khanvilkar for the complainant, learned advocate Mr.Y.C.Naidu for the opponent no.1, learned advocate Mrs.Anita Marathe for the opponent no.4 and 5. Opponent no.2 and 3 neither remained present nor they were represented through out the proceedings. Effectively complaint proceeded against the opponent tno.1, 4 and 5 as opponent no.2 and 3 are entities of the opponent no.5.
(A) Arguments of the Learned Counsel Mr.Padmanabh Pise a/w.Gouri Khanvilkar for the complainants:-
(i) Learned Adv.Pise for the complainant submitted that though medical condition of the patient was deteriorating, puffyness [swelling] was developed, urine was not being passed, yet the patient was mercilessly discharged, due to alleged incidence of slapping the staff nurse. There is no record of the incidence nor there is a police complaint against the patient. No internal enquiry report whatsoever is placed on record by the opponents to support their contentions of alleged incidence to discharge the patient.
Fervent written request of the complainant no.1 on the date of discharge i.e.31/12/1997 and on 03/01/1998 addressed to the opponent no.5 did not find favour to retain the patient for continued treatment under the care of opponent no.1. Only on receiving estimate of expenditure to transplant the kidney, an amount of Rs.1,48,000/- by way advance was deposited with opponent no.5. Condition of the patient was acknowledged by the opponent no.1 as ESRD-END STAGE RENAL DISEASE which means patient needed continued medical care and treatment in the hospital. The earlier i.e.30/12/1997 procedure of AV Fistula was carried [Arterio Venous Fistula] to facilitate MHD.
(ii) Mr.Pise further continued that though the complainant initially filed consumer complaint on 02/06/2000 i.e. after demise of the patient in Rajasthan State Consumer Commission. The case was disposed off by the State Commission, Rajasthan with observation that the cause of action arose in Mumbai since the entire treatment was taken in Mumbai.
The complaint was returned to the complainant for presenting the same before the competent Consumer Fora.
Patient died after discharge from the opponents hospital barely within five weeks i.e.08/02/1998. Cause of action arose in favour of the complainant from the date of death of patient and not from the date of discharge to file consumer complainant.
Therefore, Mr.Pise argued that the complaint is well within the time limit. Opponent doctor ought to have reviewed the medical condition of the patient before the merciless discharge yet the opponent no.1 failed miserably and he was carried away by the alleged slapping incidence and took decision to discharge the patient though it was necessary for him to treat/follow up patient. Complainant no.1 was made to run from pillar to post that too with a little money or no money in hand. He was forced to take the deteriorating patient i.e.his son to New Delhi for further treatment.
(iii) Mr.Pise further continued stating that opponent no.5 did not take any action to intimate and get the patient with ready donor, though, permission to do so was received by Opponent no.5 from D.M.E.R. by letter dated 08/08/1997, no action to proceed for transplant was ever initiated by opponent no.1 during the validity period of authorization. This is serious lapse which amount to medical negligence leading to deficiency of service on the part of the opponent no.1, 4 and 5.
Cause of death as recorded in death certificate, cardiac arrest due to END STAGE RENAL DISEASE.
The stage of disease was acknowledged by the opponent no.1, but failed to continue to attend the patient diligently and instead discharged the patient on flimsy alleged ground of incidence of slapping which is against medical professional ethics.
Opponent no.1 miserably failed as a medical practitioner to discharge the legal duty of due care and treatment of the patient. Action of the opponent no.1 as a professional medical practitioner does not conform with the ethics laid down for this noble profession.
Thus, opponent breached the duty to exercise due care in not providing continued medical treatment to the patient, which resulted subsequently that too within short time into the death of the patient. The complainants lost his young budding earning son who are left with no earning hand in the family. Opponent no.1 miserably failed while discharging the patient on 31/12/197 and that too even without recording further advice. Therefore, the complainants were left in wilderness without any directions about further medical treatment. Adv.Pise further submitted that wife of patient is estranged and therefore not made party to complaint.
[B] Arguments advanced by learned advocate Mr.Y.C.Naidu for the oppoennt no.1 :-
(i) Mr.Y.C.Naidu for the opponent no.1 raised the issue of non-joinder of necessary parties stating that the patient was married and he has left behind his wife who has not made a party. Though the patient was referred for kidney transplant opponent no.1 took due care during repeated hospitalization of the patient by administering dialysis. Though kidney donor was medically examined and the permission to transplant the kidney was received by the opponent no.5, during this period complainant was away from hospital and never turned up. The said kidney donor was retracted somewhere in August 1997. Patient was recalcitrant as incidence of slapping the staff nurse took place. Patients misbehaviour, as he was wrestler led to such incidence which precluded opponents to continue the patient in hospital as his condition was good and advised for MHD on OPD basis. Procedure of A.V.Fistuala was carried on the patient the day earlier of discharge to facilitate MHD. Mr.Naidu strongly relied on a Fourth Discharge Report of the opponent hospital that took place on 31/12/1997. According to him, treatment advised was recorded in discharge report with findings of final diagnosis as E.S.R.D. on Main-HD.
Opponent no.1 is not an employee of the opponent no.4 and 5. Mr.Naidu relied upon the rules and regulations of opponent no.5 for full time honourary consultancy agreed by the opponent no.1. These rules no where states about fees/honourarium required to be paid. Opponent no.1 has taken due care during the time of repeated hospitalization and even no fees has been paid by the complainant.
(ii) On plane reading, it sounds that the opponent no.1 while attending the patient in opponent no.5 hospital, who is discharging duties purely on charitable basis [without charging a single paisa].
However, during the course of the argument, learned advocate conceded to the query of the Bench that opponent no.1 has been receiving payment from the opponent no.5 by an arrangement between the two. Therefore relation of consumer and service provider between the complainants and opponent no.1 subsists.
[C] Arguments advanced by learned advocate Mrs.Anita Marathe for the oppoennt no.4 and 5 :-
Mrs.Anita Marathe supported contentions raised by Mr.Naidu about non-joinder of necessary parties mainly wife of the deceased patient. She further submitted that initially the patient was treated free of cost in the general ward. Thereafter, though permission was received for transplantation of kidney, but the complainant and patient were away from the hospital. However, she agreed that there is no record that the opponent no.5 has ever intimated the complainant about such permission. She could not lead any evidence whether complainant was aware of D.M.E.R.permission as the said letter of permission has never been endorsed to the complainant by the authorities. According to Mrs.Marathe, patient was not diligent in taking treatment though he was diagnosed with kidney problem almost two and half years before approaching opponent no.4 and 5 for treatment.
She relied on the hospital case paper and notes. However, she agreed that the in the final discharge report, no reason has been recorded.
[9] CONSTITUENTS OF MEDICAL/PROFESSIONAL NEGLIGENCE AND SETTLED PRINCIPLE TO DEALT WITH MEDICAL NEGLIGENCE:-
(A) Medical Negligence :-
It is important and necessary to know and place on record what constitutes medical negligence before we proceed to deal with the subject. A doctor owes certain duties. Useful reference can be made to Book titled as Medical Negligence by Dr.P.D.Shenoy. Negligence on the part of a doctor is simply failure to exercise due care. Negligence constitutes following three ingredients so far as the consumer case is concerned:-
(i) Doctor owes duty to take care of the patient.
(ii) Doctor should not breach this duty of care.
(iii) Otherwise, complainant has to suffer injury due to this breach.
Medical negligence is not different thing as the doctor is service provider to the patient.
(B) Professional Negligence :-
(i) Case of the complainant pertains not only to medical negligence but of professional negligence as well. It is necessary to elucidate as to what constitute professional negligence.
Medical profession is considered to be the most pious profession wherein a doctor is placed only second to Almighty God because he renders humanitarian service though its objective is improvement of life of the people but it is a science of uncertainty and the art of possibility at the same time.
(ii) Constituents of professional negligence are :-
a.
To exercise a reasonable degree of skill and knowledge and a reasonable degree of care;
b.
To exercise reasonable care in deciding whether to undertake the case and also in deciding what treatment to give and how to administer that treatment;
c.
To extend his service with due expertise for protecting the life of the patient and to stabilize his condition in emergency situations;
d.
To attend to his patient when required and not to withdraw his services without giving him sufficient notice;
e.
To study the symptoms and complaints of the patient carefully and to administer standard treatment; etc.
(iii) The duties which a doctor owes to his patient are amply clear. The Honble Apex Court has spelt out duties of a doctor in the matter of Laxman Balkrishna Joshi vs. Trambak Bapu Godbole & ors. AIR 1969 SC 128. The Honble Apex Court held that A person who holds himself out ready to given medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
[10] LIMITATION:-
(i) Opponents seriously raised issue of limitation of filing this consumer complaint on the ground that it is not within the period provided under the provision of Consumer Protection Act, 1986 since according to them cause of action arose in favour of the complainants as on 31/12/1997 i.e. the date of final discharge of the patient from the opponents hospital. Son of the complainants died on 08/02/1998 at Jaipur. Complainants being laymen filed the consumer complaint before State Consumer Disputes Redressal Commission, Rajsthan in the year 05/02/2000 itself.
The said consumer complaint was returned to the complainants for presenting it before the competent consumer fora by State Commission, Rajsthan by order dated 02/06/2000 holding that cause of action arose in the city of Mumbai since the patient was last treated by the doctors of Bombay Hospital. Thereupon the complainants filed this consumer complaint before this State Commission. It was submitted by Mr.Pise, learned advocate of the complainants that written request of the complainant no.1 dated 31/12/1997 and 03/01/1998 addressed to the opponent no.5 requesting against the discharge did not find favour with opponents nor the complainants were replied as to why the hasty decision to discharge the patient was arising. Due to professional negligence on the part of the opponent no.1, the forceful discharge was made as the opponent no.1 was carried away by the opponent no.5s version of alleged misbehaviour of a patient. Complainants thereafter since no response was forthcoming to retain the patient for further treatment though with deteriorating health condition left the city for treatment at AIIMS and Gangaram Hospital, New Delhi. Complainants could not ensure critical treatment for want of funds and therefore only after administration of dialysis in Delhi returned to Jaipur along with the patient.
At Jaipur, the patient was admitted in such a critical condition in a private nursing home where the patient died on 08/02/1998. Therefore, till the death of patient which was a uncertainty from the forceful discharge on 31/12/1997, cause of action continues to be in favour of the complainants. The first complaint was filed in Rajsthan State Commission on 05/02/2000 well within time which was returned to the complainant. Complainants thereafter took physically the complaint compilation as per the order of the State Commission, Rajsthan to submit before this State Commission and therefore, the complaint shall be deemed to have been filed on 05/02/2000 i.e. well within the limitation from the date of death of the patient as argued on behalf of the complainants.
(ii) Even it is so assumed that upto 05/02/2000 the complainant committed delay of about 4 to 5 weeks from last discharge on 31/12/1997 and thereby the complaint should have been filed either in Rajasthan State Commission or in this State Commission on or before 30/12/1999. Delay virtually appearing of about 4 to 5 weeks in the given circumstances and facts and considering the trauma undergone by the complainants being a laymen and considering their helplessness in finances, we are satisfied and therefore, of the opinion that the so called delay being not intentional shall be deemed to have been condoned.
(iii) Therefore the complaint is well within time from date of return of the complaint and since the cause of action has been extended to the date of death i.e.08/02/1998 [which was uncertainty] the present complaint is well within the limitation since filed on 05/02/2000 before State Commission, Rajasthan. We are in agreement with the submission advanced by Mr.Pise on behalf of the complainants who has rightfully relied on the authority in the matter of Dr.V.N.Shrikhande vs. Mrs.Anita Sen Fernandese Civil Appeal No.8983/2010 decided by the Hon.Apex Court as held no straight jacket formula can be applied for determining as to when the cause of action is accrued to the consumer in case of medical negligence.
(iv) As against this, the authorities relied upon the opponent no.1 in the matter of O.K.Gaur vs. Chothiram Hospital & Research Centre [First Appeal No.447/2010] decided on 09/03/2012 by Hon.National Commission and Dr.Jagamitra Sen Bhagat vs. Dr.Health Services, Haryana [Civil Appeal No.476/2013] decided on 11/07/2003 by Hon. Apex Court are not applicable as the facts and circumstances differ on the point of limitation.
[11] NON-JOINDER OF NECESSARY PARTIES:-
(i) On the basis of the averments in the complaint, opponents raised an application that the complaint is barred by not joining necessary parties.
Complainants have stated in the pleading that the wife of his son has abandoned the company of the family for domestic reasons in 1992 itself and left the house with her daughter i.e. grand daughter of the complainants.
(ii) The law of heirship to represent the estate of the deceased includes the wife and daughter of the deceased and not only the parents. But as per definition of the person as consumer Sec.2(1)(m) of Consumer Protection Act, 1984, includes Hindu Undivided Family; whereas the complainant no.1 being a Karta of HUF may represent the family provided he should take obligation to distribute or furnish indemnity to distribute the compensation likely to be awarded, if any.
On this background, the contentions raised by the opponents for non-joinder of parties are not sustainable.
[12] We find it appropriate to bring on record laws laid down by the Honble Apex Court to deal with alleged medical negligence. Honble Supreme Court in celebrated case of Bolam vs. Friern Hospital Management Committee (1975) 2 All ELR 118 observed that negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. Further, it is observed that A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. In yet another case of Laxman Balakrishna Joshi vs. Trimbak Bapu Godbole & ors.- AIR 1969 SC 128 the Honble Apex Court held that A person who holds himself out ready to given medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz.
a) A duty of care in deciding whether to undertake the case,
b) A duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.
c) A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. Admittedly, negligence is an essential ingredient of the offence. Medical practitioner would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field.
Standards laid down in the case of Bolam were reiterated by the Honble Supreme Court in case of the - Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1, followed in the case of V.Kishan Rao vs. Nikhil Super Speciality Hospital and Anr.
(2010) 5 SCC 513.
(13) A uthorities relied upon by the parties to support their contentions:-
[I] Complainants have relied on the decision in the matter of - Parvatkumar Mukharjee vs. Ruby General Hospital and anr. in Original Petition No.90/2002 decided by Hon.National Consumer Commission on 25/04/2005 in respect of duty of noble profession as crystallized by various judgments.
It is held the patient must not be neglected, once having undertaken the case, physician should not neglect the patient, nor should he withdraw from the case without giving notice..sufficiently long in advance of his withdrawal to them to secure another medical attendant. { Para 13}. Complainants rightfully relied on this authority as the ratio is applicable to the complainants case since the opponent no.1 being a professional chose to withdraw by giving merciless discharge and that too without advance notice and reply whatsoever to the written request of the complainants for retention of patient.
[II] Opponent no.1 has relied on following authorities:
(i) Rameshchandra Sharma vs. Udhamsingh Kamal, [C.A.No.3119/1997] decided on 12/10/1999 by the Hon.Apex Court.
(ii) State Bank of India vs. B.S.Agriculture Industries [Civil Appeal No. 2067/2002] decided on 20/03/2009 by Hon.Apex Court.
(iii) Union of India vs. Swanand Engineers and anr. [Under arbitration Act No.2 of 2000 decided on 07/10/2006 High Court, Bomay.
[III] Opponent no.4 & 5 has relied on following authorities:
(i) Handa Nursing Home vs. Ram Kali (since deceased through LRs), I [2015] CPJ 700 (NC) decided on 30/01/2015 by the Hon.National Commission.
(ii) Chand Kishor Rajput vs. Sood Stone Clinic I (2015)CPJ 101 (NC) decided on 07/10/2014.
(iii) C.P.Shrikumar (Dr.) vs. S.Ramanujam 2009 (7) Supreme Court Cases 130 Hon.Apex Court decided on 01/05/2009.
All these judgements/authorities relied upon by the opponents are not applicable to the case as facts and circumstances differ.
14. CONCLUSION :-
Heard extremely and perused record/documents relied upon by parties, million dollar question for our consideration is whether opponent no.1 has discharged his professional obligation to patient. Our reply is in negative for the finding recorded hereinafter below:-
(i) There is no dispute about repeated admission and treatment by an under the supervision of the opponent no.1 in the opponent no.5s hospital. Patient was admitted on four different dates as narrated in para no.4 [supra] and finally discharged on 31/12/1997.
Except in the last discharge report opponent no.1 diligently advised the patient to follow up with haemodialysis initially twice and then thrice in a week on OPD basis with certain medical prescriptions. However, the last discharged report i.e.for a period of 24/12/1997 to 31/12/1997 is sans medical advice for follow up except medical prescription. It is not in dispute the care and treatment exercised by the opponents during hospitalization period. Patient was obviously referred for kidney transplantation and complainant kept ready the kidney donor. At the instance of opponent no.1 permission from the competent authority for transplant was received by opponent no.5 hospital. Obviously, the patient was away from the hospital during the validity period of permission and opponents made no efforts to establish contact with the complainants to get the patient for transplantation.
Finally, the patient appeared and approached the opponents on 24/12/1997 i.e. almost after 6 months from the date of earlier discharge on 24/06/1997. Permission was valid for a period from 08/08/1997 to 07/08/1997.
By that time, the first donor changed his mind and withdrew from donating the kidney. Even in such circumstances the complainant succeeded to find another donor, but there was hardly a time to complete the medical procedure to finalize and obtain permission of the authorities.
There is no record to substantiate that the opponent no.1 and 5 have ever made any attempt to establish the contact with the complainants who were away in their native land to intimate the D.M.E.R.permission to transplant the kidney within the valid period as permitted therein. Complainant never received copy of that permission, therefore the allegation that the complainants were aware of the permission is totaling unfounded and unsustainable. Action of the opponent no.1 and 5, per se, amounts to deficiency of service.
(ii) Opponents failed to substantiate by adducing documentary evidence to demonstrate beyond reasonable doubt the incidence of misbehaviour of the patient with staff nurse as there is no internal enquiry report nor FIR was lodged about the incidence, therefore the ground on discharging the patient due to misbehaviour of the patient is unsustainable and unacceptable. Therefore, the arguments advanced on behalf of the opponents in this behalf are required to be watered down. Effects of opponents to fortify occurrence of incidence of alleged misbehaviour and admission thereof by patient is falsified for want of tangible evidence on the ground of misbehaviour is against well laid down principles of medical and professional ethics and such an arbitrariness must not find place in civic society.
(iii) Opponent no.1, though, undertaken duty to treat the patient, but breached his duty to extend his services with his expertise for protecting the life of the patient and to stabilize his condition by forcefully discharging the patient when his care and attention to protect the life of the patient was very much needed. Opponent no.1 when required to attend his patient failed to do so and opted to withdraw his services simply because of the alleged incidence of slapping the staff nurse. Conduct of the opponent no.1 in doing so amounts to breach of his legal duty to exercise due care and failed to apply his own judgment/expertise by retaining the patient to continue the treatment to protect his life and to stabilize his condition in such a deteriorating state of patient.
Opponent no.1 abruptly withdrew his services that too without sufficient notice as decision was made final on 31/12/1997 after alleged misbehaviour of patient.
(iv) The last discharge report i.e. from 24/12/1997 to 31/12/1997 does not bear medical advice for follow-up though argued to contrary by the opponent no.1. This is a serious omission on part of the opponent no.1, who had undertaken to treat the patient. Therefore, the complainants were left in wilderness as to what medical treatment was required to be followed up in the best interest of the patient whose condition was deteriorating. This is nothing short of professional negligence leading to deficiency of service on the part of opponent no.1. Action of opponent no.1 is not in conformity with the law laid down by the Hon.Apex Court and as observed by us in para no.12 and 13 of the body of this order.
(v) We have carefully gone through the expert evidence of Dr.Alen Fernandese Almeidia on behalf of the opponents.
In no unequivocal word, this expert put down his opinion in para (3)-t of his affidavit which reads as follows:
The procedure of A-V Fistula is normally carried out on an OPD/Day Care basis depending upon the patients then prevailing medical setting. Patient is only required to follow up with the treating doctor/operating doctor for periodical check ups to enable the treating doctor/operating doctor to gauge that the A-V Fistula has matured.
On going through this opinion, the patient was required to follow up with attending doctor periodically to guage that the A.V.Fistula was matured or not. A.V.Fistula procedure carried out on the patient on 30/12/1997 to facilitate MHD was fully within knowledge of the opponent no.1 nay was carried out on his advice. As per his own expert witness, the patient was required to be followed-up to ascertain the status of A-V Fistula operation as the treating doctor was required to check the same. In spite of this, opponent no.1 without going into medical condition of the patient and the treatment/follow-up required, discharged to detrimental of the health of the patient and that too without medical advice recording in the last discharge report. The action of the opponent no.1, (who is well known for his expertise) and standing in his field discharged the patient and withdrew his services when badly needed amount to professional negligence as held by the Hon.National Consumer Commission in the matter of - Parvatkumar Mukharjee vs. Ruby General Hospital and anr. in Original Petition No.90/2002 decided on 25/04/2005. Due to withdrawal of his service by discharging the patient in deteriorating condition and paying no heed to the fervent urge of the complainants to retain the patient cost the complainants life of their son since within a period of 5 weeks, the patient died. Thus, we hold that opponent no.1 failed to extend his services to protect the life of his patient and stabilize his condition when the patient needed the most.
15. COMPENSATION:-
(i) Having considered the case in its entirety, we are holding medical and profession negligence against opponent no.1 and 5 as the initial burden of establishing medical negligence leading to deficiency in service has been duly discharged by the complainants. Onus shifted to the opponents to disprove the same has not been discharged. Therefore, now the question before us is about awarding compensation to the complainants. Admittedly, late Yogesh Kumar was working as constable in CRPF. At the time of death age of Yogesh Kumar was 26 years as recorded in the documents. The complainants have filed on record income from salary, the patient would have continued to work till the age of superannuation. Complainants, who are very senior citizen now, have lost back-bone of the family in death of their son. It is also reported that the patient was married and had one daughter. However, according to the complainants, the marriage was against the family tradition, wife of the patient is estranged. Complainants have claimed lump-sum compensation of Rs.14,50,000/- together with interest @18% p.a. which includes estimated salary of Rs.11,00,000/-. We are of the view that the compensation claimed is very reasonable.
Complaint has been filed in year 2000 and now disposed off belatedly. The compensation being reasonable deserves to be considered with reasonable rate of interest @10%p.a. from date of filing complaint i.e.18/07/2000. Complainants were put to immeasurable amount of mental agony coupled with trauma and stress, therefore the complainants deserve to be suitably compensated.
(ii) Having carefully gone through the facts of the case and the documentary evidence laid by the parties and circumstances for forced discharge of the patient without follow up advice, we are of considered opinion that opponent no.1 being an eminent professional in his field failed to assess and ascertain the circumstances before making up his mind to discharge the patient, though having undertaken to treat the patient. He preferred to withdraw his services when the patient needed the most which amounts to medical and profession negligence as well nothing short professional misconduct. Therefore, opponent no.1 is deficient in service due to profession/medical negligence on his part. Opponent no.2, 3 and 4 are proforma parties relating to the entity of the opponent no.5. Therefore, effectively opponent no.1 and 5 are the main opponents against whom the complaint has been proceeded and considered. Opponent no.1 by way of internal arrangement attached to opponent no.5 who offers his professional services in the premises of opponent no.5 hospital and receives fees/charges from patient through opponent no.5. Opponent no.5 failed to demonstrate by adducing the evidence to establish misbehaviour of the patient who was in a precarious health. On top of the issues, opponent no.5 miserably failed to communicate permission received from D.M.E.R. to transplant the kidney of patient and allowed the permission to get lapsed. This is a serious issue which amounts to per se negligence on the part of the opponent no.5. No due procedure has been followed to establish alleged incident of misbehaviour. Therefore, opponent no.5 is grossly negligence in dealing with patients case leading to deficiency in service. Opponent no.5 too is deficient in service as no due procedure was followed to establish the alleged incident of patients misbehaviour. We are holding opponent No.1 negligent and deficient in service not on the ground of alleged nexus of forceful discharge with death of the patient, but on the ground that he withdrew his services to the patient when badly needed on the flimsy grounds. On this background, it was unbecoming on the part of the opponent no.1 as a eminent medical professional to discharge the patient on basis of the vague and unverified information. Therefore, there is clear deficiency in service on the part of the opponent no.1 and
5. Hence we allow the complaint and proceed to pass the order as follows:-
ORDER
1) Consumer complaint is allowed with cost to be quantified to Rs.25,000/- [Rs.Twenty Five Thousand only] to be paid to the complainants by the opponent no.1 and 5 jointly and severally.
2) Opponent no.1 and 5 are directed to pay jointly and severally an amount of Rs.14,50,000/- [Rs.Fourteen Lac Fifty Thousand only] together with interest @10% p.a. payable from date of filing the consumer complaint i.e.05/02/2000.
3) Opponent no.1 and 5 are directed to pay jointly and severally an amount of Rs.1,00,000/- [Rs.One lac only] towards mental trauma to the complainants.
4) Amounts ordered to be paid in operative para 2 and 3 shall be paid within a period of 60 days from the date of this order. On failure to comply, enhanced rate of interest @13% p.a. shall be payable on the amount ordered to be paid effective from 05/02/2000 till realization.
5) Complainants shall furnish indemnity bond to the extent of share of daughter-in-law and grand daughter and to execute the same before the Registrar [Legal] of this State Commission prior to compliance of this order by the opponents.
6) One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
7) Copies of the order be furnished to the parties free of cost forthwith.
Pronounced Dated 31st July, 2015.
[ Shashikant A. Kulkarni] PRESIDING MEMBER [Narendra Kawde] MEMBER pgg