State Consumer Disputes Redressal Commission
Sheila Kanwar vs R.K. Himthani on 6 July, 2007
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 06-07-2007 Complaint Case No. 188/1998 Smt. Sheila Kanwar, W/o. Shri J. Kanwar, R/o. J-58, Ground Floor, Lajpat Nagar-III, New Delhi 110024. . . . Complainant Versus 1. Dr. R.K. Himthani, B-64, Sarita Vihar, New Delhi 110044. . . . Opposite Party No.1 2. Dr. (Brig) B. Rautray, V-12, Green Park Extension, New Delhi 110048. . . . Opposite Party No.2 Through M/s. Karanjewala & Co Represented by Ms. Asha Tyagi & Ms. Vaishnavi, Advocates. 3. Pamposh Medicare Centre, B-13, Pamposh Enclave, New Delhi 110048. . . . Opposite Party No.3 4. Talwar Medical Centre, M-139, Greater Kailash-II, New Delhi 110048. . . . Opposite Party No.4 CORAM: Justice J.D. Kapoor, President Ms. Rumnita Mittal, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. Complainant has alleged medical negligence and deficiency in service on the part of Opposite Parties (in short O. Ps) and claimed compensation of Rs.12 lacs inclusive of expenses incurred in the treatment.
2. The case of the complainant in brief is that in 1995, the complainant was suffering acute pain in lower abdomen. She, on advice of OP No.1 & 2, underwent surgical operation for CPE + Dilatation and for placing on stents on both sides of the kidneys under general anesthesia in OP No.3s Medical Centre. The stents were to be removed after three weeks.
The operation for the stent removal was conducted in OP No.4s Hospital. Even after the said operation of removal, the complainant still had complications.
Instead of diagnosing the real cause of her complications, the OP No.1 treated her for stomach TB and diabetes.
Through an X-Ray report dated 26.06.97, the complainant was shocked to know that the left ureter still contained the stent, for the removal of which she was operated in 1995, and once again for the removal of the old stent an immediate operation had to be done.
After arranging money the complainant was admitted to Lady Harding Medical College New Delhi on 12.2.98, where the stent was removed through ureterotomy as Cystoscopy did not reveal any stent in the bladder.
3. There was negligence of doctors and inadequate services provided by the nursing homes/centers. The OPs failed to share the job responsibilities to ensure quality health care and proper treatment to the complainant.
4. OP No.1 denied any deficiency on its part and contended that the complainant had old history of Urinary Tract Infection, Diabetes Mellitus, High Blood Pressure, Hyper-Uraecemia and for the purpose she was already under treatment for a long period. She was diagnosed for impending renal failure (kidney failure) since her Blood Urea and Serum Creatinine level was dangerously abnormal. The complainant was referred to OP No.2 by OP No.1 for treatment of Obstructive Uropathy. The complainant remained under treatment of OP No.2 and she was hospitalized for stent removal from 22.11.95 to 24.11.95. The complainant thereafter totally disappeared from the scene. The complainant had undergone treatment/operations etc. elsewhere, and for such act(s), the OPs can not be held liable.
The complainant remained absent for a year from 28.6.96 to 17.6.97 and she did not take treatment for TB as prescribed by OP No.1. Whether the stents were removed or replanted during the intervening period was not in the knowledge of the OP.
5. OP No.2 denied any negligence in the treatment of the complainant and contended that the complainant was referred by Dr. Himthani on 4.9.1995 when it was found that she had obstruction of kidneys, ureters as well as urinary bladder. The patient was advised proper urine drainage by urethral dilation, cystoscopy, bilateral ureteric stenting and catheter drainage by urethral dilation, cystoscopy, bilateral ureteric stenting and catheter drainage of bladder. This procedure was carried out on 7.9.1995. The complainant was admitted to Talwar Medical Centre, OP No.4, as per her desire on 22.11.1995 for stent removal and the stents were removed through Endoscopic method and the urethra dilated. The patient had various medical problems besides urethral stenosis and bilateral obstructive uropathy for the limited purpose of which she was under the treatment of OP No.2. There has been no wrong treatment or negligence on the part of OP No.2 in urological management exclusively for which the complainant was under his treatment. OP No.2 is not guilty of inaction, carelessness or negligence on his part. Stents were removed by cystoscopy in 1995 and further USG reports on 28.6.1996 and 17.6.1997 have not revealed the presence of any stent which shows that there was no stent in the left ureter till 17.6.1997. Hence, OP No.2 can not be held liable for negligence on his part and both the stents were removed successfully in 1995 by the OP. After the removal of the stents there are on record two ultra sound reports of KUB done on 28.6.1996 and 17.6.1997 did not reveal the presence of the stents in the ureter or the kidney of the complainant.
6. OP No.3 did not file any reply and hence was proceeded ex-parte.
7. OP No.4 denied any deficiency in service on its part and averred that there is no in-action, carelessness or negligence on its part and the facts stated by the complainant nevertheless establish that the complainant had been suffering from the disease since long back and no doctor in the Nursing Home of the OP had ever medically examined or treated or diagnosed the complainant till 22.11.1995. The complainant was admitted by the OP No.1 in the nursing home of OP No.4 only for a specific purpose i.e. for the removal of stents. There was no question of any treatment and diagnosis as far as O.P.4 is concerned. OP No.2 conducted the surgery for the removal of the stents on 23.11.1995. OP No.1 & 2 are not employees OP No.4, nor they are attached or practicing in the nursing home of OP No.4. The complainant was neither the patient of OP-4 prior to 22.11.1995 nor was ever diagnosed or treated at the nursing home of OP-4 prior to 22.11.1995. Charges were received by the answering respondent to be handed over to the concerned surgeons/doctors. As far as OP-4 is concerned, the charges are received for the purposes of providing a room to the patient, O.T and the equipments and medicines meant for the surgery and not for any treatment or diagnosis.
8. Aforesaid conspectus of rival claims of the parties boils down to a point of contention whether the O.P. No.2 who provided the service on behalf of O.P. No. 3 and 4 - Nursing Home was negligent in not removing the old stent during the second operation in the year 1995 for which the complainant had suffered another operation in the year 1997. In this record, the explanation of O.P.2 is that the complainant was hospitalized for stent removal from 22-11-195 to 24-11-1995 but thereafter she disappeared and never reported back to the doctors and underwent treatment or operation somewhere else.
9. Even if we accept this plea, the question would arise whether the complainant has successfully proved the allegation of non-removal of stent during her hospitalization in November, 1995 and in this regard the complainant has placed reliance upon the X-Ray Report dated 26-06-1997 and Case Summary prepared by O.P. 2 dated 06-07-1997 (Annexure-N) showing that the old stent was still there and not removed.
10. 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)
11. 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.
12. 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 & Others (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 Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of 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.
13. While dealing with the concept of medical negligence the Supreme Court laid down the following requirements:-
(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.
14. 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 medical 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)).
15. In nutshell, each and every case of medical negligence has to be tested on the following criterion:-
(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?
16. The result will depend upon the answers to the above queries.
17. So far as the allegation against O.P.1 for having treated the complainant for Stomach TB and diabetes while she was not suffering from any kind of TB, there is no material on record to show that there is negligence on the part of O.P. .1 If at all there was any negligence it was on the part of O.P.2 in not removing the old stent which was subsequently removed in the year 1997. Non-removal of this stent by O.P.2 has been amply proved through X-Ray Report as well as the Case Summary of O.P.2. The complainant has not produced any record to show as to how she suffered and how much expenses she incurred because of non-removal of the stent between 1995 to 1997. However, she was unnecessarily burdened with the expenses for removal of old stent by O.P.1 which should have been removed in the year 1995 but was actually removed in the year 1997.
18. For this limited negligence, we hold O.P.2, 3 and 4 jointly and severally liable and direct them to pay a lump sum compensation of Rs. 50,000/- (Fifty Thousand Only). Complaint is disposed of in above terms.
19. Payment shall be made within one month from the date of receipt of this order.
20. Copy of this order, as per statutory requirement, be forwarded to the parties free of cost and thereafter the file be consigned to record.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member HK