State Consumer Disputes Redressal Commission
Vinod Kumar vs Pgimer on 13 June, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 53 of 2020 Date of Institution : 20.02.2020 Date of Decision : 13.06.2022 Vinod Kumar s/o Dharam Singh, Village Dohli, Chamrori (54), Yamunanagar, Jagadhri, Haryana-135133. ... Appellant/Complainant VERSUS Post Graduate Institute of Medical Education & Research (PGI), Sector 12, Chandigarh through its Medical Superintendent/Director Department of Neurosurgery, Post Graduate Institute of Medical Education & Research (PGI), Sector 12, Chandigarh through its Head of Department. Department of Neurology, Post Graduate Institute of Medical Education & Research (PGI), Sector 12, Chandigarh through its Head of Department. Department of Ophthalmology, Advanced Eye Centre, Post Graduate Institute of Medical Education & Research (PGI), Sector 12, Chandigarh through its Head of Department. ...Respondents/Opposite Parties BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MRS. PADMA PANDEY, MEMBER
MR.RAJESH K. ARYA, MEMBER Argued by :-
Sh. Pankaj Chandgothia, Advocate for the appellant.
Sh. Paras Money Goyal, Advocate for the respondents.
PER RAJESH K. ARYA, MEMBER This appeal has been filed by the complainant (appellant herein), namely, Sh. Vinod Kumar against order dated 10.01.2020 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (now District Consumer Disputes Redressal Commission-I, U.T., Chandigarh) (in short 'District Commission') vide which his consumer complaint No.562 of 2017 was dismissed by the said District Commission, on the ground that there was no medical negligence on the part of the opposite parties (respondents herein).
2. The brief facts, as culled out from the impugned order dated 10.01.2020, as under:-
"1. The long and short of the allegations are, prior to June 2015, wife of the complainant, Smt. Kamla Devi (deceased), aged about 45 years, had problem of diminishing eye sight and other vision related problems. She was treated in Goyal Eye Care Center, Jagadhri, Yamuna Nagar and other eye clinics from May 2015. However, there was no prognosis of the vision related problem. On being referred, she was got admitted in OP Hospital (PGI) on 11.6.2015. At the time of admission, the initial history/diagnosis noticed by the OPs involved optical nerve and no other kind of problem in the form of fungal or bacterial infection. She was admitted in the PGI on 11.6.2015. Various tests were performed, but, the patient developed a fatal infection during her stay in the hospital i.e. bacterial and fungal infection which were not in existence on the date of her admission in the PGI. Complainant's case is, his wife succumbed to the medical negligence of the OPs and had expired on 30.7.2015 during the course of treatment. Various documents were obtained alongwith the medical certificate of cause of death. Forms were also filled up after death regarding the insurance claim and it was opined, Smt. Kamla Devi, deceased had developed mucormycosis in the hospital which is result of fungal infection. This disease was developed in the third week of July 2015 and it was reported Ventilator Associated Pneumonia caused by bacterial infection was the cause of death. She was admitted for a different problem but had infected with other problems during her stay in the hospital. The death report reveals cause of death as refractory septic shock. The complainant had paid the expenses, but, later on was approved as a poor free treatment, therefore, he is a consumer. It is the case of the complainant, there were unhygienic conditions and lack of nursing care, therefore, Smt. Kamla Devi, deceased suffered sepsis due to the negligence of the OPs. As such, her death had a nexus with medical negligence on the part of the OPs. Hence, the complainant filed present consumer complaint and prayed for directing the OPs to pay Rs.2.00 lakhs towards hospital bills; compensation of Rs.1.00 lakhs for avoidable pain, disability etc.; Rs.10.00 lakhs as compensation for mental agony and harassment; compensation of Rs.3.00 lakhs for loss of companionship; deterrent damages of Rs.1.00 lakhs and Rs.55,000/- as legal expenses.
2. OPs furnished their joint written statement signed by one of the OPs i.e. Assistant Professor of Department of Neurology and raised preliminary objections of consumer complaint being not maintainable and admitted deceased Smt. Kamla Devi was presented in Advanced Eye Care Centre on 21.5.2015 and the previous record shows complained of painless and progressive diminution of vision in left eye for the last one month. Different tests were done and she was referred to Neurology consultation and MRI was also done which showed left optic nerve suggestive of optic atrophy. She was also examined in the Glaucoma clinic on 16.6.2015 and it was found a known case of hypocalcemic periodic paralysis for which she was on treatment from elsewhere. Their case is, her condition was deteriorating, therefore, she was also put on steroids treatment under compelled circumstances. It was admitted, infection was developed and steroids may have contributed to this infection, but, it was not avoidable and was necessitated to be administered to save her life. The infection was also treated, but, she could not be saved. Hence, OPs maintained whatever was in their command, they employed the skill and treated her, but, she expired. On these lines, the cause is sought to be defended."
3. The order passed by the District Commission has been impugned on the ground that the District Commission failed to appreciate the record as Smt. Kamla Devi, deceased had developed mucormycosis during the course of her treatment in the Hospital, which was result of fungal infection and this disease was developed in the third week of July 2015 and it was reported that Ventilator Associated Pneumonia caused by bacterial infection was the cause of death. It has further been stated that the death report also revealed the primary cause of death as refractory septic shock, which means refractory shock caused as a result of infection. It has further been stated that the conclusion arrived at by the District Commission that there was no breach in the course of treatment regarding loss of vision is erroneous as by not filing any reply/rebuttal, the Department of Ophthalmology had admitted the aforesaid factum and further the present case is a case of Res Ipsa Loquitur because as per the medical record, the deceased never recovered or improved at any stage during the course of the treatment. It has further been stated that the respondents even gauged out the eye of the deceased without prior information or consent. It has further been stated that the respondents did not pay proper care and attention towards the patient and wrongly put the blame on the luck of the deceased for her death. It has further been stated that the post mortem conducted suggested that the patient was suffering from cancer but the respondents failed to detect or diagnose the cancer and further failed to give any treatment for this disease, which amounted to gross medical negligence. The appellant placed relied on the judgment of Hon'ble Apex court in case titled Smt. Savita Garg Versus The Director, National Heart Institute, Appeal Civil No.4024 of 2003 decided on 12.10.2004.
4. On the other hand, on behalf of the respondents, it has been stated that Smt. Kamla Devi was referred to PGIMER, Chandigarh for vision problems which were present for some time but she had another problem called hypokalemic paralysis for a long time, a potential life threatening condition which was undiagnosed. It has further been stated that it is not the fault of the respondents if the earlier doctors could not diagnose her illness properly. It has further been stated that her illness was indeed complex and was unlikely to be diagnosed elsewhere other than a tertiary care center like PGI. However, it has been admitted that she did not have infection of any kind as mentioned in clause 4 at the time of her admission in PGI but she had a serious illness namely Sjogren syndrome with renal tubular acidosis (Kidney involvement) with repeated attacks of hypokalemic paralysis with optic neuropathy. It has further been stated that it is a serious condition which can itself lead to death in due course of time and needs urgent and strong treatment. It has further been stated that the respondents do not take any responsibility of the fact that her illness was undiagnosed for many years. It has further been stated that every patient needs to be treated holistically, for instance, if a patient presents herself with fever alone, but is diagnosed as chest tuberculosis on further evaluation, then she has to be treated for tuberculosis and not just fever, so, in this case, outside diagnosis has nothing to do with management of this particular case and the respondents do not take any responsibility for inaccurate diagnosis and treatment offered to the patient by outside doctors. It has further been stated that thus, the statement that patient only had vision problem and nothing else is out of context is totally misplaced. It has further been stated that the diagnosis of this case was highly unlikely to be made except in a tertiary care center.
5. It has further been stated that the appellant is concentrating only on one part of the MRI report and he is totally misleading this Commission by diverting its attention from the fact that MRI report is not normal. It has further been stated that in fact, the MRI report is grossly abnormal and it shows altered signal changes in bilateral optic nerves and tracts as well as bilateral optic radiation, meaning thereby that she had an underlying serious involvement of the visual pathway, however, she definitely did not have any infection. It has further been stated that while caring for a patient, the respondents cannot pick and choose some investigations and ignore others. It has further been stated that she was diagnosed as a patient with Sjogren syndrome with renal tubular acidosis (Kidney involvement) with repeated attacks of hypokalemie paralysis with optic neuropathy and this was confirmed by the presence of anti Ro and anti La antibodies which were about 1000 times above normal. It has further been stated that she also underwent state of the art investigations which revealed parotid and other salivary gland involvement, so, there was no point in just seeing few investigations and ignoring others. It has further been stated that in view of suffering from a life threatening disease, she was started on steroids which were essential for management of this patient and the drugs, which were administered, were necessary not only to save her vision but also her life. It has further been stated that subsequently, during the course of her illness, she developed mucormycosis, which is caused due to infection by genera mucor, a fungus. It has further been stated that this fungus does not spread from hands of any person. It has further been stated that mucor is a commensal which is normally present in nasal passages and causes disease in immuno-compromised patients. It has further been stated that this patient was already immune-compromised and also had renal tubular acidosis which itself predisposes a person to develop mucormycosis. It has further been stated that the respondents do not deny the fact that steroids must have contributed to this infection, however, steroids were absolutely necessary to protect vision, kidneys and life of this patient and there was no chance of this infection spreading from any person to the patient. It has further been stated that once she developed this infection, she was diagnosed urgently and given all possible treatment which are state of the art and at par with any other hospital in the world.
6. It has further been stated that this patient also underwent autopsy to ascertain the cause of death and had there been a mal-intention on part of doctors, then the respondents would not have done autopsy. It has further been stated that the autopsy was done only to ascertain the final cause of death and any other cause which the respondents were not able to identify during her life. It has further been stated that she was also found to have cancer of thyroid on autopsy which might have contributed to complication but the respondents feel, it did not contribute much to disease. It has further been stated that there was severe involvement of entire respiratory pathway due to Sjogren's syndrome on autopsy. It has further been stated that the respondents have to give a proper medical certificate for cause of death and again cite an example in common language. It has further been stated that if a person is admitted to the PGI with fever, the cause of death cannot be mentioned fever. The PGI have to mention the exact cause of death. It has further been stated that if one sees carefully medical certificate, it clearly mentions of Sjogren syndrome as well as renal tubular acidosis which have contributed to all the complications which lead to her death. It has further been stated that rest of complications are inevitable part of disease. It has further been stated that the admission of Smt. Kamla Devi in the hospital was necessary for saving her life as she had developed mucormycosis during the stay in hospital. It has further been stated that she developed complications in the form of mucormycosis, which justifies the decision by hospital staff to keep her in hospital so that she could be monitored closely for any infections. It has further been stated that the moment, she developed infection, she received state of the art treatment for the same. It has further been stated that the reason for development of mucormycosis was immunosuppression consequent to disease and its treatment. It has further been stated that the hand hygiene practices, which are followed in PGI, are best of the best and is a matter of pride. It has further been stated that it was an inevitable complication of prolonged ventilation and could not be prevented completely. It has further been stated that all over the world, ventilator associated infections are the commonest cause of death in patients who need ventilator support. It has further been stated that in fact, there is no such hospital in the world where ventilation can be given without risk of infection. It has further been stated that every patient who needs ventilator support is inherently sick and at risk of infections. It has further been stated that ventilator support is provided only when patient is likely to die without it. It has further been stated that though it carries a high risk of infections, the respondents were not having any option except to provide ventilator support and every attempt was made to control her infections. It has further been stated that the death summary was given at the time of discharge and the medical records are the property of the hospital and are never issued to patient whether alive or dead or to the attendants of the patient. It has further been stated that once patient undergoes autopsy, by protocol, all the records are sealed so that none of the respondent can influence or know the results till the final diagnosis is revealed. Stating the impugned order to be just, fair & legal and based on proper appreciation of facts and law, prayer for dismissal of appeal has been made.
7. After hearing the Counsel for the parties and having gone through the material available on record and the written arguments very carefully, we are of the considered view that this appeal, filed by the complainant, is liable to be dismissed for the reasons to be recorded hereinafter. It is not in dispute that Smt. Kamla Devi was referred to PGIMER, Chandigarh for vision problems which were present for some time but she had another problem called hypokalemic paralysis for a long time. It is a relatively uncommon but potentially life-threatening clinical syndrome. The case of the appellant is that during her treatment at respondents - Hospital, Smt. Kamla Devi, had developed mucormycosis, which resulted into fungal infection and consequential death. In this regard, it may be stated here that the primary goal of treatment is to alleviate the symptoms of acute attacks, prevention and management of immediate complications, and prevention of late complications and future attacks, which in our concerted view, the respondents did their best by adopting the standard line of treatment, which was required of by them without wasting any further time and accordingly, she was treated in the Ophthalmology as well as Neurosurgery units which were well equipped with competent doctors and other apparatus for the purpose of settlement of the diagnosis and undertaking the treatment. The contentions made by the respondents, in their written arguments, are self-contained and self-explanatory so far as the whole treatment, complications involved and the pre-admission treatment taken by Smt. Kamla Devi (since deceased) from other Hospitals is concerned. Bare perusal of record transpires that she undertook treatment from Goyal Eye Care Centre, Jagadhri and Sh. Suresh Chandra Memorial Eye & General Charitable Hospital, Yamuna Nagar and other hospitals, wherefrom, she was referred to the respondents - Hospital. It may also be stated here that every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as 'implied undertaking' by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. In the case of Bolam V. Friern Hospital Management Committee, (1957) 2 All ER 118, McNair, J. summed up the law as the following:
"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. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he confirms with one of these proper standards, then he is not negligent."
Further in the case of Dr. LaxmanBalkrishna Joshi vs. Dr. TrimbarkBabuGodbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor.
8. In the instant case, the appellant has failed to show any medical negligence from the record in respect of the treatment given to Smt. Kamal Devi and further unsuccessful in establishing any breach in the duties on the part of the treating doctors and the hospital. The District Commission, in our concerted view, has rightly observed that if these duties are breached by the respondents - hospital, only then they will be under the noose of law to say guilty of medical negligence and liable to be punished in the form of damages/compensation to the legal heirs of deceased, Smt. Kamla Devi. The District Commission was further right in observing that it was neither the case of the complainant nor does it appear from the record that the respondents mistreated the patient and they had not administered the treatment to Smt. Kamla Devi which was warranted as per medical science to be administered to her for the cure of the disease or to say to control it and thus, under these circumstances, it was not for the patient or her attendants to say what should be the course of treatment. Therefore, we endorse the view held by the District Commission that, on this legal parameter in deciding what treatment was to be given, there was no such breach, pleaded or proved on record from the side of the appellant/complainant. It is also on record that while administering the treatment of eye problem and sepsis, there was no lapse on the part of the respondents so as to say there was any breach of duty of care in administration of the treatment. Therefore, there was no breach of any of these legal parameters to say that wrong treatment was given or say that the respondents were not possessed with the skill or say infrastructure for the purpose of treatment of the said disease and further breach of duty of care was not established on record.
9. Further, in our concerted view, it is not the case of res ipsa loquitur as Smt. Kamla Devi was earlier treated in a private hospital in District Yamuna Nagar and the treatment had not responded to her and on their failure, she was referred to the respondents, which itself showed her diagnosis was not finally settled. Thus, the District Commission righty held that it was not the case that alien treatment was undertaken which was far away from the medical text books or to say apparently that the respondents were not eligible to undertake the said allopathic or surgical treatment.
10. As regards the contention raised that the cause of death of Smt. Kamla Devi was refractory septic shock which speaks of infection or say septicaemia, which she carried during her treatment at respondents Hospital, it may be stated here that she had already been a case of Hypokalemic periodic paralysis patient and per record, her condition was critical. Therefore, they had to take the aid of last therapy i.e. steroids which weakened her defence mechanism, which contributed to formation of sepsis. In our view, the District Commission righty observed that "It is a mode of treatment to be done by the doctors and patient or her attendant is nobody to question it or dictate the terms of treatment to the doctors, which is their field and they have expertise in the matter. We may say no science on this earth is perfect so is the case with medical science and there may be 101 idiopathic reasons on which medical science has not identified and simpliciter research work, which has been incorporated in the medical text books, has to be the standard of medical science." Further, it was not the case of the appellant that apart from deceased Smt. Kamla Devi, any other patients in majority or say all had suffered from sepsis during that period. Had there been unhygienic conditions, other patients would have acquired infection too at the respondents - Hospital. This goes on to prove that due to very low immune system of her body, Smt. Kamla Devi developed the said infection i.e. mucormycosis, which resulted into fungal infection and which coupled with other grave medical conditions, contributed to her death. Not only this, her post mortem report revealed that she was also suffering from cancer, which as per the appellant was not diagnosed by the respondents. In this regard, the District Commission righty observed that the basic treatment started from clinical examination and the signs and symptoms were loss of one eye vision and there were no symptoms to say, diagnosis of cancer or its investigation had also to be undertaken. Further, the help of steroids was also taken as the patient was not responding to the treatment and there was paralysis of her nerve. In the given situation, when she suffered infection, the same proved to be fatal, for which, no deficiency in rendering service or any medical negligence, it cannot be said, the respondents were at fault as they had administered treatment as per medical text books.
11. Not only this, the cause of death of the deceased Smt. Kamla Devi, given in the Certificate, Annexure C-11, was 'Primary Sjogren's Syndrome'. With this disorder, the body's immune system attacks its own healthy cells. The District Commission righty observed that every disease is never cured and the treatment was administered by the respondents with which they were possessed of skill and if they had undertaken any medical surgical procedure for detection of a disease, for that, written consent was not required as it was not with regard to the treatment of the disease but to detect the disease which Smt. Kamla Devi had suffered and not for treatment purpose. It further rightly observed that non taking of consent for such a minor surgical procedure to detect the disease for research work was not in any way showed that the respondents failed to take her written consent so as to constitute medical negligence. In the instant case, when the system of the deceased Smt. Kamla Devi was itself acting against the immune system, in such a situation, she was prone to any of the decease, which she suffered in terms of sepsis. It cannot be said, from where she carried the infection, which she may have developed while she was being treated in the Neurology Department. We concur with the view held by the District Commission that since there are always micro bacteria in the environment and the resistance in the body of Smt. Kamla Devi had already fallen weak, may be due to steroids therapy, therefore, negligence cannot be attributed on to the respondents in any manner when no other patient admitted in the same ward suffered such infection, so as to conclude that hygiene conditions were poor in the general ward.
12. To sum up all, this Commission is of the concerted view that firstly, there was no medical negligence on the part of the respondents in treating the deceased Smt. Kamla Devi for which she was referred to and admitted in the respondents Hospital and further, for her unfortunate death on account of developing mucormycosis, which resulted into fungal infection, no negligence is attributable to the respondents. Thus, the appellant has failed to make out any case of medical negligence or deficiency in rendering service on the part of the respondents. No doubt, the dicta laid-down by Hon'ble Apex court in case titled Smt. Savita Garg (supra), relied upon by the appellant, is law for the land but since the appellant has failed in establishing any medical negligence or deficiency in rendering service on the part of the respondents, therefore, the appellant cannot derive any help out of it.
13. Therefore, in our considered view, the District Commission rightly dismissed the complaint of the appellant vide the order impugned, which does not suffer from any infirmity or material irregularity and is based upon true appreciation of facts and settled law on the subject.
14. For the reasons recorded above, the appeal filed by the appellant - complainant is dismissed with no order as to costs.
15. Certified copies of this order be sent to the parties, free of charge.
16. The files be consigned to Record Room, after completion.
Pronounced 13.06.2022.
[RAJ SHEKHAR ATTRI] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad