State Consumer Disputes Redressal Commission
Savitri Devi vs Santhom Hospital 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-387/1998 1. Smt. Savitri Devi Complainant No.1 W/o shri Rai singh. 2. Shri Rai Singh, Complainant No.2 S/o Shri Deep Chand, Through Mr. M.S. Rohilla, Both R/o Village Mangesh Pur, Advocate. Delhi-110039. Versus Santhom Hospital, Opposite Party D-5, Prashant Vihar, Through Outer Ring Road, Mr. J.S. Chhikara, Rohini, Delhi-110085. 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) On account of medical negligence on the part of OP-hospital in as much as that when blood was going to be transfused into the body of a person arrangement of Cardiologist was necessary but OP did not make arrangement for a Cardiologist and further that OP was not having arrangement for respirators which resulted in the death of the deceased son of the complainant, the complainants have through this complaint sought compensation of Rs. 10,00,000/- with interest @ 24% besides Rs. 10,000/- as cost of litigation.
2. The deceased Maha Singh was the only son of the complainants. As per the case of the complainants on 10th July, 1996 he was travelling in a bus No. DL-1P-7889 of route No. 883 from Azadpur towards Pitampura, Delhi and when the bus reached in front of the hospital of the OP, and was negotiating the crossing light point, the bus No. DEP-5634 came to QU market, Pitampura, Delhi side being driven by Driver Shri Rohtas in rash and negligent manner ignoring the traffic rules and struck against the Bus No. DL-1P-7889 of route No. 883 on the front window side. Due to the impact he and others sustained grievous injuries and was admitted with the OP hospital on 19-07-1996 itself.
3. Complainants were directed to deposit Rs. 5,000/- by the OP which were deposited vide receipt NO. 033340 dated 10th July, 1996. The complainants also deposited Rs. 4,300/- as directed by the OP-hospital authority and also paid for the medicines. OP had called for 8 units of blood for transfusion during operation but at the time they had made no arrangement of Cardiologist, though the Cardiologist was required when the blood was to be transfused in the body.
The doctors were aware that in case where the blood is to be transfused into the body, the presence of expert Cardiologist is necessary but in the present case they had no arrangement for the expert cardiologist. They were also not having arrangement of respirators which were also required at that time.
4. The OP did not take proper precaution to protect his life. After his condition became precarious because of the negligence of the OPs at the last moment they proposed to shift the deceased from the hospital of the OP but unfortunately he died on the way. Had the OP taken due care and had given proper attention or would have made proper arrangement of the instruments/medicines required, the son of the complainants would not have died and his life could have been saved.
5. In its defence the OP-Hospital has taken the stand that since the deceased was not suffering from heart ailment, the service of the Cardiologist was not required at the time of transfusion of blood as it is not mandatory that Cardiologist must be present. Even otherwise it is not necessary for transfusing blood in the body of the patient in the absence of any heart ailment. According to it, it has sufficient arrangement in case of any development in emergent cases including heart troubles. The doctors who transfused the blood are fully qualified and the allegations that OP-Hospital was not having arrangement of respirators are entirely incorrect as it was fully equipped with respirators and other apparatus which were used as and when required. It also denied that the deceased Mohan Singh died because of negligence on the part of the OP-Hospital. The patient was given all best possible care which he needed in the instant case. The patient needed blood transfusion in view of his profuse hemorrhage and in all about 8 units of blood was requisitioned during his stay in the hospital and transfused in the presence of qualified doctors. Patient was also operated to stop the bleeding from the wounds and other necessary treatment like splintage etc. was applied to the injured limbs.
6. However, it was on the request of the complainants that the deceased was taken to Jaipur Golden Hospital and they were told that they were taking the patient at their own risk. So much so one of the doctors accompanied them upto the Hospital with due care and caution including respirators.
7. While refuting the claim of the OP the complainants have relied upon the following documents to show that had the services of respirators and qualified Cardiologist at the time of transfusion of blood been made available the life of the young boy would have been saved:-
(i) Entire case history sheets prepared by the OP at the time of discharge, transfer summary along with death summary showing that the decision to shift the deceased to Jaipur Golden Hospital was taken for ventilatory support and further management and that patient had cardiac arrest on transit from ambulance to casualty, Jaipur Golden Hospital. He was resuscitated again with external massage but he could not be revived and died at 4.30 P.M.
(ii) Another endorsement in history sheet at Sl. No.5 in the following terms:-
Referred to Jaipur Golden Hospital for ventilator.
8. On the contrary the counsel for the OP has contended that the blood was transfused by the doctor who was not competent is false as the doctor who did transfuse the blood was an MBBS doctor and was qualified to transfuse the blood.
9. As regards the allegation of non availability of the ventilator the learned Counsel contended that the ventilator and respirator was very much there and was also used and it was unilateral decision of the complainants to take the deceased to Jaipur Golden Hospital inspite of their informing that it was risky to take him there. So much so at one stage the leg of the deceased was going to be amputated because of serious injury.
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 hold 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 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.
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. 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?
16. As is apparent from the rival claims of the parties, the main allegation of the complainants is non-availability of the ventilator at the OP-Hospital where blood was transfused and because of that the patient had to be shifted to Jaipur Golden Hospital. The medical history and record and other documents referred above show that the decision to take the deceased to Jaipur Golden Hospital was taken because of the non-availability of the ventilator in the Hospital and the patient was in critical condition therefore he suffered cardiac arrest on the way.
17. As regards the allegation that the doctors who attended to the patient were not qualified, we do not find any force as all the doctors who were attending very serious patients were well qualified and experienced doctors.
18. In our view whenever patients are accepted or admitted to the nursing home or hospital the attending doctors should anticipate all the possible failure, complications and summon the services of all the concerned doctors to attend to these complications. It is not understandable as to how at the time of shifting the deceased the services of the Cardiologist were not availed nor was the ventilator or the respirator summoned. Either these were not available or were non in working condition otherwise these would have saved the deceased.
19. Any lapse on the part of the hospital or nursing home in this regard amounts to deficiency in service which in terms of Section 2(1)(g) of the Consumer Protection Act, 1986 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.
20. Taking over all view of the matter and giving due consideration to the serious injuries suffered by the deceased and the direct cause of death being cardiac arrest, the limited deficiency on the part of the OP is as to the non-availability of the ventilator or respirator at the time when it was needed. At the most we hold the OP guilty of deficiency of medical negligence in not anticipating as to the need of the Cardiologist at the time of transfusion of blood as he could have taken all the requisite tests and should not have proceeded on the presumption that he was a young man and therefore the possibility of being heart patient was not at all there.
21. In view of the totality of the facts of the case we deem that a lump sum compensation of Rs. 50,000/-, besides Rs. 10,000/- towards cost of litigation would meet the ends of justice.
22. Payment shall be made within one month from the date of receipt of this order.
23. Complaint is disposed of in aforesaid terms.
24. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
25. Announced on the 24th September, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj