State Consumer Disputes Redressal Commission
Arvind Sarin vs Oxford Hospital Pvt. Ltd. & Ors. on 23 January, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1825 of 2009.
Date of Institution: 22.12.2009.
Date of Decision: 23.01.2014.
Arvind Sarin S/o Late Sh. Ashok Sarin, R/o H.No.163, Urban Estate,
Batala.
.....Appellant.
Versus
1. Oxford Hospital Pvt. Ltd., near Nakodar Chowk, Jalandhar City,
through its Managing Director.
2. Dr. Naveen Chitkara, Neuro Surgeon, Oxford Hospital Pvt. Ltd.,
near Nakodar Chowk, Jalandhar.
3. The New India Assurance Company Limited, Patel Chowk,
Jalandhar.
4. The New India Assurance Company (D.O.), Ferozepur.
...Respondents.
First Appeal against the order dated
15.10.2009 passed by the District
Consumer Disputes Redressal Forum,
Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
...................................
Present:- Sh. Varun Baanth, Advocate for Sh. Kuldip Sawal, Advocate, counsel for the appellant.
Sh. O.P. Sharda, Advocate for Sh. B.S. Walia, Advocate, counsel for respondents no.1 & 2.
Sh. B.S. Taunque, Advocate, counsel for respondents no.3 & 4.
----------------------------------------
First Appeal No.1825 of 2009 2INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Sh. Arvind Sarin, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 15.10.2009 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter called as "the respondents"), making the averments that he is son and legal heir of late Sh. Ashok Sareen and is well conversant with the facts of the case and is competent to file the complaint. Sh. Ashok Sareen was quite hale and healthy. On 26.02.2005, Sh. Ashok Sareen along the appellant; Sheetal Sareen, daughter-in-law; Pawan Kansra and Raminder Singh started travelling from Batala to Chandigarh via Tanda and on the way, the Santro car in which they were travelling met with an accident and FIR No.40 dated 02.03.2005 was lodged at P.S. Tanda U/s 279/337/338/427 IPC.
3. The occupants suffered injuries and Sh. Ashok Sareen, father of the appellant, sustained injury on his head and he was referred from Hoshiarpur for treatment of head injury to respondent no.1-hospital and he was admitted in the said hospital on 26.02.2005 and respondent no.2 attended on him. On the basis of head CT Scan report, he advised for immediate head surgery for which the consent was given half- heartedly. Before the surgery, Sh. Ashok Sareen (hereinafter called "the patient") was in full senses and was aware of his surroundings and there was no memory loss. He was simply complaining about the pain in his head.
First Appeal No.1825 of 2009 3
4. Respondent no.2-Dr. Naveen Chitkara assured that there was no danger to the life of the patient and told that a bone chip was simply to be removed from the injury site which could cause damage to the brain, if it was not removed. Respondent no.2 performed the surgery on 26.02.2005 and told that the surgery was successful and the patient would be discharged after 10-12 days. No complication was reported and the patient was kept in the ICU of the hospital. None of the family members was allowed admission in the ICU. There were 4-5 patients in the said ICU and only one attending nurse to look after five serious patients in the said multi specialty hospital. The hands and legs of the patient were tied to the sides of the bed and the patients were treated mercilessly.
5. After about ten days, the condition of the patient was satisfactory to some extent and the father of the appellant was in his senses and he talked with his family members. The appellant approached the doctor and requested him to discharge the patient, but the doctor told that he wants to observe the patient for one more day. The appellant received the message in the night that the condition of the patient was serious and he had been taken to the ICU again and this process continued as and when appellant requested for discharge.
6. Sh. Ashok Sareen remained admitted in the hospital upto 25.05.2007 i.e. the date of his death. Only for 5-7 days, he was kept in the ICU. During this period of three months, he was not given proper feed. He was not attended by any expert medical main. No super specialty doctor was there. The services provided were negligent and deficient and due to that, the patient expired.
7. Respondent no.2 left the hospital on 26.02.2005 for one week and stayed out of Jalandhar without caring for the patient and First Appeal No.1825 of 2009 4 there was no other Neuro Surgeon in the hospital during that period. The health of Sh. Ashok Sareen deteriorated day-by-day, as he developed brain congestion fever and debility and he was not given any food orally and was given liquid food through nasal tube. The infection could not be controlled despite costly antibiotics given. So many times, the blood culture was got done in order to know the administration/ suitability of the antibiotics and it was a hit and trial method. More than 20 units of blood besides more than hundreds of dextrose bottles were transfused. The patient was kept in the hospital just to enhance the bill of the hospital. The appellant asked the doctors to allow them to shift the patient to some other hospital and tried to shift the patient on five occasions, but they were stopped. There was no expert, except Neuro Surgeon and the other were Dr. Meenakshi Anand, Anesthetist and Brig. Saini, Endocrinologist, who were not competent to attend the brain-surgery patient. On few occasions, Dr. Raman Chawla attended the patient and there was no Cardiologist in the hospital. The sub- standard local medicines were used. The tests were sent to other Labs. At the time of death of Sh. Ashok Sareen, no heart-specialist or Neuro- Surgeon was present to attend the patient. It was told that the patient has suffered a massive heart attack, but no heart-specialist was summoned.
8. The respondents fleeced the appellant to the tune of Rs.4.00 lacs during the stay of the patient in the hospital and medicines worth Rs.1.00 lac were purchased from outside and Rs.50,000/- were paid for tests etc. The appellant and his family members suffered lot of mental tension and harassment.
9. It was prayed that the respondents may be directed to pay costs of medicines amounting to Rs.4.00 lacs, compensation to the First Appeal No.1825 of 2009 5 tune of Rs.10.00 lacs, litigation expenses Rs.30,000/- along with interest @ 12% from 26.02.2005 till realization.
10. In the written version filed on behalf of respondents no.1 & 2, preliminary objections were raised that the present complaint has been filed on false facts and with ulterior motive of not making payment of balance fee and other charges incurred on the treatment, as the balance payment of Rs.2,14,200/- was yet to be paid towards hospital bills by the appellant and his family members. The complaint is not legally maintainable.
11. On merits, it was admitted that Sh. Ashok Sareen was brought to the respondent no.1-hospital at 10.30 A.M. on 26.02.2005, having injuries due to accident. The case was registered at P.S. Tanda, District Hoshiarpur. At that time, the patient had serious head injuries due to road accident. The patient was immediately admitted in the Neuro-Surgery Department and was attended by Neuro-Surgeon Dr. Naveen Chitkara, M.Ch. along with other medical officers and efficient staff available in the emergency wing of respondent no.1. At that time, the patient was conscious, but drowsy and both pupils were of equal size and re-acting to the light. CT Scan of the patient had already been done at Hoshiarpur which revealed multiple hemorrhagic contusion Right Frontal Lobe with multiple fractures with marked cerebral edema and minimal EDH Frontal Lobe. The clinical condition of the patient was explained to the attendants. The primary aim at that time was to stabilize the patient and the patient was kept under observation on standard drugs. No immediate surgery was advised. At about 3.00 P.M. on the same day, the patient started to have neurological deterioration in the form of papillary anisocoria and in order to check further deterioration, immediate surgery was advised to save the life of the First Appeal No.1825 of 2009 6 patient and all due risks and benefits were briefed and clearly explained to the attendants, accompanying the patient, who signed the written consent, allowing the respondents to proceed with the surgical operation. The primary aim was to save the life of the patient by decompressing the brain and not mere removing the bone chip. The surgery started at 5.00 P.M. and the patient was operated upon accordingly. The patient had multiple linear fractures, right frontal parietal including right frontal air sinus and roof of right orbit. Brain matter was coming out through bone segments. Dura was shattered at base of skull. Right frontal Lobe was contused. Right frontal Lobectomy and decompression was done. The best medical treatment as required was given. The attendants were already made aware by the referring doctors, who also conducted the scan of the patients about the condition of the patients.
12. The patient was kept in Neuro ICU of the hospital after the operation which had five beds at that time. The hospital has multiple Intensive Care Units namely ICU, Neuro & Cardiac Recovery and Critical Care Ward & NICU. The bed occupancy of these Intensive Care Units is never 100% and staff nurses are posted according to number of patients in each unit, taking care that nurse-patient ratio is 1:2. The well trained nursing staff is available around the quarter in three shifts. As per ICU protocol, all the attendants are allowed to meet and see the patient in the morning, mid-day and evening, to avoid any kind of infection and other complications to the patients. The best medicines were given, but the said disease is reported to have complication of CSF leak and infection to brain (Meningitis). There is vaxing and waning of the clinical condition of the patient and the patient had to be taken to ICU as and when his condition required such First Appeal No.1825 of 2009 7 treatment. The patient remained admitted in Oxford Hospital from 26.02.2005 to 25.05.2005 and was outside the NICU for 26 days as per his condition. The ICU is fully equipped with all the monitors, life saving gadgets and is managed by full time employed intensivist and round the clock care is provided by trained medical doctors and staff nurses. The menu & dietary requirements for all the patients are calculated by full time employed dietician Miss Gurpreet Kaur in consultation with the treating doctors and meals/diet/supplements are provided by the in- house kitchen and given by the staff nurse on duty. In the absence of Dr. Naveen Chitkara, the other Neuro Surgeon i.e. Dr. R.P.S. Chhabra, who is also super specialist in Neuro Surgery, having equal qualification as of Dr. Naveen Chitkara, took the care of the patient. In addition, fully trained Dr. Muzaffar Ahmad Masoodi (DNB Neurology) was also available as a full time Neurologist, working in the hospital of respondent no.1. The patient was given oral food and NG feed as per his clinical condition and requirements to provide him adequate nutrition. The patient was started with enteral fee on 28.02.2005 and by 03.03.2005, he was being given 200 ml. of feed every 3 hourly. He was given liquid food on 08.03.2005 in addition to enteral feed. Semi solid food was allowed on 11.03.2005.
13. Patient developed CSF leak from wound site which was stitched by Dr. R.P.S. Chhabra. Patient developed fever for which different investigations were done to know the cause of fever. Proper antibiotics were administered as per the reports. On most of the occasions, no micro organism could be grown from CSF despite reports that there was infection in the meninges. Antibiotics were given empirically in that case. The best medicines were advised in order to save the life of the patient. The IV fluids administered were of good First Appeal No.1825 of 2009 8 quality and were manufactured by the standard companies and the drugs advised were of standard quality and no generic or sub-standard brand medicines were prescribed. The attendants of the patients were regularly briefed about the poor condition of the patient and were always given a chance to shift the patient the patient to any other hospital or have multiple consultation of their choice, but they never expressed their wish to shift the patient. The consultation of different neuro surgeons was taken by the relatives, to have another opinion from Dr. Anupam Jindal, Chandigarh, Dr. Y. Dewan, CMC, Ludhiana, Dr. Chhabra, Jalandhar, Dr. Khosla, PGI, Chandigarh. Every neuro surgeon suggested to continue with the standard protocol, as was being followed, and the attendants continued to have treatment from the hospital of the answering respondents. The patient continued to wax and wane in this neurological status and general condition. All suggested measures were taken to improve the general condition, but he continued to develop one complication after the another.
14. The respondent Oxford Hospital Pvt. Ltd. is a Multi- specialty hospital with advance Cardiac Sciences, Neuro Science, Endocrinology and Orthopaedics. Highly qualified and very well experienced doctors are on full time rolls of the hospital. Dr. Raman Chawla is highly qualified Cardiologist, having the degree of D.M. Cardiology. The patient Sh. Ashok Sareen was under the trained intensivist Dr. Meenakshi Anand, who is fully trained Anesthetist and intensivist and is fully competent to handle the complicated patients. The patient was regularly attended by Dr. Naveen Chitkara, Dr. Meenakshi Anand and Dr. Brig. J.S. Saini. No visiting fee for Dr. S.P.S. Sooch, Dr. G.S. Gill was charged by the hospital. Dr. Raman Chawla has seen the patient as Cardiologist quite regularly but only Rs.100/- First Appeal No.1825 of 2009 9 were charged. Dr. S.P.S. Grover, M.D. did endoscopy of the patient which was charged at nominal rate. In the bill, one visit of Dr. Navjot Singh, M.S. (Orthopaedic) has been charged which was essential on the first day of admission, to rule out any bone injury.
15. The patient was kept on life saving gadgets as per requirements, due to poor condition of the patient. The hospital bill No.344/05 dated 25.05.2005 as per the patient case file was prepared and handed over to the attendants of the patient after his death, amounting to Rs.3,72,200/- and after adjusting the payment of Rs.1,58,000/- already made, the request to pay Rs.2,14,200/- as balance amount of bill was made, but the attendants of the patient abused the hospital staff and tried to damage the hospital property which was saved by the security staff and the balance amount has not been paid till date. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
16. In the written version filed on behalf of respondents no.3 & 4, preliminary objections were taken that the appellant is not a consumer and there is no privity of contract between the appellant and the answering respondents. It was further submitted that M/s Oxford Hospital Pvt. Ltd. was insured with the answering respondents for a sum of Rs.50.00 lacs with a compulsory excess of Rs.12,500/- for one year w.e.f. 29.08.2004 to 28.08.2005. Respondent no.2 is insured for Rs.10.00 lacs for one year w.e.f. 23.09.2004 to 22.09.2005. There is no negligence on the part of respondents no.1 & 2. On merits, similar pleas were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed.
17. Parties led evidence in support of their respective contentions by way of affidavits and documents.
First Appeal No.1825 of 2009 10
18. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that from the evidence and the treatment record Ex.OP-1/A, there is no evidence establishing the medical negligence. The appellant also filed the complaint to Deputy Medical Commissioner for conducting inquiry and his report is Ex.C-2. There are omnibus and sweeping allegations of medical negligence in performing the surgery by respondent no.2 without specifying the act and deeds of negligence either in the diagnosis or in the pre-operation treatment or the post operative care and line of action in consistent with the medical protocol and norms. The respondent hospital is fully equipped with medical infrastructure and has given the best possible treatment through the highly qualified and experienced Neuro Surgeon, medical officers and para-medical staff in treating the patient and they followed the time tested procedure exhibiting reasonable skill and care as required on them.
The Medical Expert Committee of the Govt. Medical College, Chandigarh gave the report, stating that the patient was provided adequate medical care, but developed a known complication for which he was treated. There is no credible evidence to prove the charge of medical negligence and deficiency in medical service against the respondents. The complaint was dismissed.
19. Aggrieved by the impugned order dated 15.10.2009, the appellant has come up in appeal.
20. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties. First Appeal No.1825 of 2009 11
21. The appeal was filed on the grounds that respondent no.1 left the hospital on 26.02.2003 for one week and in his absence, no Neuro-Surgeon was available in the hospital and the patient was left at the mercy of other faculty which amounts to the sheer negligence on the part of the respondents. The father of the appellant sustained severe injuries in his brain in the accident on 26.02.2005 for which, he was admitted in respondent no.1-hospital by respondent no.2 and remained admitted upto 25.05.2005 for three months and he died because of meningitis complication which was developed after the operation. After one week of the operation, the patient developed CSF Rhinorrhoea and was not Neurologically alert. His condition continued to deteriorate and it is attributable to respondent no.2, who left the patient at the mercy of others. Till the filing of the complaint, no issue of non-payment of the balance amount was raised. The respondents did not appear in the inquiry by Deputy Medical Commissioner, Jalandhar which is sufficient to draw an adverse inference against them. False assurances were given that the patient will get well soon and the appellant could not get the treatment from some other hospital. The District Forum has not appreciated the truth qua the medical negligence and the Medical Expert Committee has ruled that the meningitis is a serious complication and increase mortality in head injury patients, but it has not mentioned that the meningitis is incurable. The order passed by the District Forum is against the facts and evidence and the same may be set aside by allowing the appeal.
First Appeal No.1825 of 2009 12
22. On the other hand, the counsel for respondents no.1 to 4 has contended that the impugned order passed by the District Forum is legal and valid and there is no ground to interfere with the same and the appeal may be dismissed.
23. We have considered the respective version/submissions of the parties and have minutely scrutinized the entire record and other material placed on the file.
24. The father of the appellant, namely Sh. Ashok Sareen suffered head injury in an accident and he was referred to respondent no.1 hospital and was admitted there on 26.02.2005 and respondent no.2 Dr. Naveen Chitkara treated him. On perusing the CT Scan, respondent no.2 advised for immediate head surgery of Sh. Ashok Sareen. Respondent no.2 performed the surgery on the same day i.e. 26.02.2005 and Sh. Ashok Sareen was kept in ICU of respondent no.1 hospital and remained admitted there till 25.05.2007.
25. The grievances of the appellant are that respondent no.2 left the hospital immediately after the operation on 26.02.2005 and there was no other neuro-surgeon in the hospital, to look after his father Sh. Ashok Sareen and that resulted into infection which could not be controlled. There was no expert neuro surgeon and only Dr. Meenakshi Anand, Anesthetist and one Brig. Saini, Endocrinologist looked after the patient and they were not the experts. This version/arguments of the appellant is not tenable because another neuro surgeon Dr. R.P.S. Chhabra was available and in addition to that, Dr. Muzaffar Ahmad Masoodi (DNB Neurology) was also present in respondent no.1- hospital. While the father of the appellant was admitted in respondent no.1-hospital and was being attended by the competent and qualified doctors, the appellant took the second opinion from other doctors of First Appeal No.1825 of 2009 13 repute i.e. Dr. Anupam Jindal, Chandigarh, Dr. Y. Dewan, CMC, Ludhiana, Dr. Chhabra, Jalandhar, Dr. Khosla, PGI, Chandigarh and they were satisfied with the treatment given. This fact was stated by the respondents in their written version in Para-11(f) and the same has not been rebutted by the appellant in any manner.
26. The Medical Expert Committee of Govt. Medical College, Chandigarh gave the report dated 18.05.2009 and after perusing the medical treatment record of Sh. Ashok Sareen, gave the following observations:-
(i) From the information provided it is clear that the patient suffered severe head injury during road site accident on 26.2.2005. Surgery was offered as treatment and was done after a written consent in native language. The patient was improving after surgery but then deteriorated because of meningitis (infection of the coverings of brain). The necessary treatment for infection was given during which time patient improved initially but ultimately succumbed.
(ii) Meningitis after head injury is common occurrence especially so in skull base fractures like the patient mentioned above.
(iii) Meningitis is a serious infection and increases mortality in head injury patients.
(iv) In conclusion, the patient was provided adequate medical care but developed a known complication for which he was treated.
27. From the above Expert Committee report, it is clear that after surgery, Sh. Ashok Sareen was improving, but he developed meningitis (infection of the coverings of brain) and it is a serious First Appeal No.1825 of 2009 14 infection. In the literature published in 2009 under the head "Post Traumatic Meningitis in Neurosurgery Department" under subhead "Discussion", it was observed as follows:-
"Meningitis is one of the complications which may occur during the course of brain trauma and may markedly worsen outcome or result in death".
28. Thus, from the above, it is clear that meningitis is a common complication in the case of the patient, suffering from head injury. In this case, inquiry was also held on the complaint of the wife of Sh. Ashok Sareen and Deputy Medical Commissioner, Jalandhar vide its report dated 13.04.2006 concluded that the Oxford Hospital used the standard medical protocol for the treatment of patient and there was no negligence.
29. Respondent no.2 is a qualified doctor and was competent to perform the surgery. The surgery became imminent because the brain matter was coming out through bone segments and Dura was shattered at base of skull. The necessary care and caution in conducting the operation was taken and admittedly, after the operation, the patient Sh. Ashok Sareen was improving, but later on he developed infection in the shape of meningitis and for that also, necessary treatment was given as is clear from the death summary of the patient. The learned counsel for the appellant relied upon "V.Kishan Rao Vs Nikhil Speciality Hospital & Anr.", 2010 (2) RCR (Civil)-929 (SC) and contended that as per the law laid down in this authority, it was for the respondent doctor to rebut that there was no medical negligence. This authority of the Hon'ble Supreme Court is not applicable to the facts and circumstances of the present case, because in the case in hand, First Appeal No.1825 of 2009 15 the appellant has failed to establish any medical negligence on the part of respondent no.2 and even otherwise, the allegations have been duly rebutted by the respondents through the evidence as well as the Expert Committee Report as per which, the Meningitis is only a complication and it is not caused by any negligence. In case "Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors.", (2010) 3 Supreme Court Cases-480, the Hon'ble Supreme Court although was dealing with a criminal negligence and held that a very high degree of negligence is required in criminal cases and in Para-89, described the principles to be kept in view in case of medical negligence and one of the principles was that the medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. As stated above, in the above case, the Hon'ble Supreme Court was dealing with criminal negligence. The facts remains that respondent no.2 treated the patient with care and caution and had used the skill and adopted the course of treatment which was the best available, but the complications are the natural consequences and a complication cannot be termed as negligence.
30. In view of above discussion, the order passed by the District Forum is detailed and speaking and there is no ground to interfere with the same.
31. Consequently, the appeal filed by the appellant is dismissed and the impugned order under appeal dated 15.10.2009 passed by the District Forum is affirmed and upheld. No order as to costs.
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32. The arguments in this appeal were heard on 14.01.2014 and the order was reserved. Now the order be communicated to the parties.
33. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member January 23, 2014.
(Gurmeet S)