National Consumer Disputes Redressal
Dr. Indu Singh & Anr. vs Raj Kumar Tripathi & 2 Ors. on 4 March, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 392 OF 2013 (Against the Order dated 02/05/2013 in Complaint No. 28/2009 of the State Commission Uttar Pradesh) 1. DR. INDU SINGH & ANR. CMD, SURYA MEDITECH HOSPITAL & RESEARCH CENTRE, 1 SHIVAJI NAGAR, MAHOORGANJ, VARANASI-221010 UTTAR PRADESH 2. THE APOLLO CLINIC THROUGH ITS FRANCHISEE, DR. INDU SINGH, B-38/46-H, RAMAN NIWAS, MAHMOORGANJ, VARANASI-221010 UTTAR PRADESH ...........Appellant(s) Versus 1. RAJ KUMAR TRIPATHI & 2 ORS. S/O. SHRI GANGADHAR TRIPATHI, R/O. TIWARI TOLA, MOHAMMADABAD, GHAZIPUR 2. PAWAN KUMAR TRIPATHI S/O. SRI RAJ KUMAR TRIPATHI, R/O. TIWARI TOLA, MOHAMMADABAD, GHAZIPUR 3. AMIT KUMAR TRIPATHI S/O. SRI RAJ KUMAR TRIPATHI, R/O. TIWARI TOLA, MOHAMMADABAD, GHAZIPUR 4. INDRAPRASTHA APOLLO HOSPITAL SARITA VIHAR, DELHI MATHURA ROAD, NEW DELHI-1100044 ...........Respondent(s)
BEFORE: HON'BLE MR. BINOY KUMAR,PRESIDING MEMBER
FOR THE APPELLANT : APPEARED AT THE TIME OF ARGUMENTS:
FOR THE APPELLANTS : MS. KAMINI JAISWAL, ADVOCATE
MR. DIVYESH PRATAP SINGH, ADVOCATE
MS. RANI MISHRA, ADVOCATE
MR. VIKRAM PRATAP SINGH, ADVOCATE FOR THE RESPONDENT : APPEARED AT THE TIME OF ARGUMENTS:
FOR RESPONDENTS - 1 TO 3 : MR. UPDIP SINGH, ADVOCATE (THROUGH VC)
FOR RESPONDENT - 4 : NEMO
Dated : 04 March 2024 ORDER
1. This Appeal has been filed by Dr. Indu Singh and the Apollo Clinic (hereinafter referred to as, the Appellants / Opposite Parties Nos. 1 & 2 respectively) against the impugned Order dated 02.05.2013 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (hereinafter referred to as the "State Commission") in CC No. 28 of 2009, whereby the Complaint filed by the Complainants was allowed with the direction to the Opposite Parties No. 1 and No. 2 to pay Rs. 50 lakh to the Complainants as compensation for medical negligence and deficiency of service.
2. Brief facts of the case are that, on 06.10.2008, the Complainant No. 1 / Respondent No. 1 (since deceased) took his wife - Smt. Prabha Tripathi (hereinafter referred to as the 'patient') to the Opposite Party No. 1 for consultation, who prescribed certain investigations. On 17.10.2008, after going through the reports of investigations prescribed certain tests including the PAP Smear Test and the Doppler Pelvis Test. The Opposite Party No. 1 suggested the patient for a surgery owing to the problem in the uterus. It was alleged that the Complainants were never informed about the nature of disease, procedure or the consequence of treatment. On 06.11.2008, the patient was admitted to Opposite Party No. 2 Clinic. On 10.11.2008, hysterectomy (removal of uterus) was performed on the patient by the Opposite Party No. 1, but her condition worsened thereafter, to which the Opposite Party No. 1 assured the Complainants to not worry. It was alleged that on 18.11.2008, the biopsy report was received. After going through the same and further, seeing the deteriorating condition of the patient, the Opposite Party No. 1 abruptly discharged the patient on 24.11.2008. Thereafter, seeing the worsening condition of the patient by each passing day, the Complainant, on 07.12.2008, admitted her at Indraprastha Apollo Hospital, New Delhi (hereinafter referred to as the 'Opposite Party No. 3 Hospital'), where she could not be saved and died on 31.12.2008. Being aggrieved by the deficiency in service on the part of the Opposite Party No. 1 for not following the proper procedure for treatment as per standard medical literature and medical negligence, resulting into the death of the patient, the Complainant No. 1, being her husband, and their two children filed a Complaint before the State Commission and sought a compensation to the tune of Rs. 76,00,000/- for mental pain and agony alongwith Rs. 25,000/- for litigation expense.
3. The Opposite Parties rejected the averments made in the Complaint and prayed for dismissal of the Complaint.
4. The Opposite Parties Nos. 1 and 2, in their joint reply, denied the allegations and stated the Complaint was not maintainable as the issue involved is complicated question of facts and law, which are of civil nature. It was stated that the Complainants had been informed about the nature, complexities and pros and cons of the disease since inception and the patient was discharged with a detailed discharge slip with reference to a hospital for further management. Deliberately, the prescriptions dated 06.10.2008 and 17.10.2008 have been concealed by the Complainants. It was stated that before hysterectomy, an expert opinion was obtained from Dr. H. S. Shukla of Department of Oncology, IMS, BHU, who also opined for the biopsy. The patient was of 60 years of age, suffering from diabetes, hypertension and post-menopausal bleeding. After taking proper consent from the Complainant No. 1, she conducted the surgery. It was further stated that on the Complaint filed by the Complainant No. 1 before the Ethical Committee of the MCI, the Opposite Party No. 1 was held not guilty and the Complaint was dismissed holding no medical negligence.
5. The State Commission allowed the Complaint holding the Opposite Parties 1 and 2 / Appellants guilty of medical negligence and awarded Rs. 20 lakh and Rs. 30 lakh to the Complainant No. 1 jointly and severally to be paid by the Opposite Parties Nos. 1 and 2 towards medical expenses and towards loss of life due to medical negligence on their part.
6. Being aggrieved, the Opposite Parties Nos. 1 and 2 have filed the instant Appeal.
7. Heard the learned counsel for both the parties.
8. The learned Counsel for the Appellants submitted that there was no medical negligence on the part of the Doctor and that utmost care was taken for the treatment of the patient. The patient first approached the Doctor on 06.10.2008 and based on certain tests like Pap-smear and Doppler Pelvis, the patient was kept on medication and considering her age, hysterectomy was advised as the patient was suffering from excessive post-menopausal bleeding. The surgery was performed on 06.11.2008 and a successful operation was done. In the meantime, biopsy was also done and the report was received on 18.11.2008, which revealed presence of adeno-carcinoma. This was informed to the husband of the patient and the patient was discharged on 24.11.2008 to report to an Oncologist at Indraprastha Apollo Hospital, New Delhi. She further submitted that instead of proceeding immediately to the said hospital, the patient delayed going there by about two weeks and only on 07.12.2008, she was admitted in Apollo Hospital. The Doctor had also obtained the expert opinion of an Oncologist at Institute of Medical Science, Banaras Hindu University on 20.10.2008, who had advised to do Hysterectomy in the circumstances of the case.
9. The learned Counsel for the Respondents submitted that there was utter neglect by the Appellant / Doctor. He submitted that the Oncologist report taken by Doctor is also doubtful and was obtained subsequently to cover up the negligence on the part of the Doctor. The Doctor could not read the Pap smear report dated 10.10.2008, which found that there were inflammatory cells showing mild dysplasia coming from endometrium or endocervix. It was advised that the endometrium and endocervical canal had to be explored for Pathology. He further submitted that in the Doppler report of 17.10.2008, it was mentioned that there was "enlarged uterus with multiple mass ? fibroid" ("malignancy cannot be rule out"). Therefore, instead of taking further action on these reports, the Doctor went ahead with the surgery. She should have rather referred the patient immediately to a suitable hospital where Oncology facility would have been available. He further submitted that there is no record stating that the patient was fit for surgery. There was no clinical examination done as no record has been provided to show whether the vagina was examined. He further submitted that the consent form is not a correct form as no details of the operation to be conducted has been given and it is not an informed consent. The consent is that of the husband, but not of the patient. Even the expert opinion of the Oncologist Dr. H. S. Shukla has not been followed, which had mentioned about the urgency of the surgery, but the same was not performed urgently. The surgery should have ideally been done by a Gynecologic Oncologist and not by a simple Gynaecologist. He further pointed out the contradiction in the discharge record of 24.11.2008, which did not mention about the histopathology report, wherein cancer was detected, whereas on the same date, in a letter, addressed to the Medical Superintendent of Indraprastha Apollo Hospital, New Delhi, the hystopathological report was mentioned and enclosed. Therefore, all these documents have been fabricated later on.
10. Heard the arguments of learned Counsel for both sides. It is a fact that this is not a very straightforward case. There were some signs of inflammatory cells in the uterus area. Certain tests were prescribed by the treating doctor, who had first seen the patient on 06.10.2008. Initially certain medications were prescribed alongwith certain tests. The Pap smear and Doppler tests dated 20.10.2008 showed inflammation and then expert opinion was taken by the Doctor from an Oncologist, who advised as follows:
"My approach will be to do a complete Hysterectomy in the next OT list, at the same time looking at pelvis and paraortic limph node & liver and take further recourse to treatment on the basis of HPE of uterus. I will not burden the patient with any other imaging exercise at this stage".
The patient was operated on 06.11.2011 with certain delay. The surgery was successful and the hystopathological report was obtained. This report indicated prevalence of cancer. The patient was discharged on 24.11.2024 with an advice that she should be taken immediately to a superior multispecialty hospital being Indraprastha Apollo Hospital, New Delhi. The patient was admitted on 07.12.2008 with some delay.
11. The question before me is whether in the circumstances of the case, the hysterectomy should have been done or not. The Doctor in her opinion thought that hysterectomy should be conducted in the first instance as a first line of treatment as there was profuse bleeding and as advised by the expert Oncologist of BHU. When the confirmation of the cancer was reported in the hystopathological report, she immediately referred the patient to the superior hospital. In such a situation, is the Doctor culpable of medical negligence as submitted by the learned Counsel for the Respondents? It is a fact that the patient died due to cancer. The State Commission has held the Doctor and the Appellants guilty of medical negligence, who have been asked to pay certain compensation for the medical negligence and deficiency in service. The State Commission relied upon the Pap smear test and the Doppler test, but disregarded the expert opinion of Dr. H. S. Shukla. The State Commission held that further investigation should have been conducted and that the biopsy report was not obtained prior to conducting the laparotomy. The State Commission further disregarded the report of the Ethical Committee of the Medical Council of India, Lucknow chapter which has exonerated the doctor on the ground that the Committee did not hear the Complainant or gave details of records perused by it before passing the Order. The State Commission finally came to the conclusion that the consent was not taken on the lines of the Order of the Hon'ble Supreme Court in Samira Kohli vs. Prabha Manchanda (Dr.) & Anr., I (2008) CPJ 56 (SC). The State Commission, on the lines of the arguments of the learned Counsel for the Respondents laid stress on two grounds for holding the Appellants guilty of medical negligence. The first is regarding the improper consent and the second is not acting upon the Pap smear and Doppler report with further investigation or referral. On the issue of consent, the learned Counsel for the Appellants submitted that the consent was taken in a proper format as per the MCI guidelines explaining all the details to the husband of the patient as he was the person interacting on behalf of the patient with the Doctor.
12. I have perused the consent form signed by the husband of the patient. The applicability of the Order of the Hon'ble Supreme Court in Samira Kohli (supra) is not applicable in this case as in that case, the consent was taken for laparotomy and not hysterectomy and therefore, it was held that it was not an informed consent. In this case, the consent has been taken for Hysterectomy which was performed and therefore, such consent cannot be disregarded and therefore, I am not in agreement with the view taken by the State Commission. Further in the same Order, the Hon'ble Supreme Court has observed as under:
"48. ....A doctor cannot be held negligent either in regard to diagnosis or treatment or in disclosing the risks involved in a particular surgical procedure or treatment, if the doctor has acted with normal care, in accordance with a recognised practice accepted as proper by a responsible body of medical men skilled in that particular field, even though there may be a body of opinion that takes a contrary view. Where there are more than one recognized school of established medical practice, it is not negligence for a doctor to follow any one of those practices, in preference to the others."
13. The second ground taken by the State Commission that follow-up investigation after the Pap smear and Doppler tests were not conducted and that the consultation with the expert may not have taken place or the consultation should be disregarded is a more serious observation and needs to be looked into in detail. It is also to be seen that some of the arguments that have been made by the Respondents are on account of hindsight after the patient having been diagnosed with cancer and the treatment having failed resulting in the unfortunate death of the patient. The Appellants and particularly the Doctor submit that she was following the normal course of treatment and that she did take into account the seriousness of the case and therefore, advised and performed the surgery. This was also in line with the normal practice which any Gynaecologist will do and she avoided further delaying the matter by going for any further tests. This is also in accordance with the expert opinion of the Oncologist from BHU. The question before me is what would a normal Doctor do in a situation like this. The Respondents have not been able to argue what would have been the alternative treatment that should have been given except for the argument that the Doctor was not competent to treat such case. The State Commission also has not been able to say what should have been the alternative to the Hysterectomy performed on the patient by the Doctor. They have not stated whether the Hysterectomy should not have been done at all or that performing Hysterectomy has led to the growth in the cancer due to lapse of certain time. The Doctor is a specialist gynaecologist.
14. I would like to rely on a few Orders of the Hon'ble Supreme Court. In Jacob Mathew vs. State of Punjab & Anr., Criminal Appeals Nos. 144-45 of 2004, decided on 05.08.2005, it was observed as below:
24. The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used.
25. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
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28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
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30. The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.
In another case, Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors., Civil Appeal No. 1385 of 2001, decided on 10.02.2010, the Hon'ble Supreme Court observed as below:
94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. 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. The interest and welfare of the patients have to be paramount for the medical professionals.
In Vinod Jain vs. Santokba Durlabhji Memorial Hospital, (2019) 12 SCC 229, the Hon'ble Supreme Court observed as under:
"9. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam v. Friern Hospital Management Committee). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A situation, thus, cannot be countenanced, which would be a disservice to the community at large, by making doctors think more of their own safety than of the good of their patients."
In Bijoy Sinha Roy vs. Biswanath Das & Ors., (2018) 13 SCC 224, the Hon'ble Supreme Court observed as under:
13. In Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, this Court observed that uncalled for proceedings for medical negligence can have adverse impact on access to health. While action for negligence can certainly be maintained, there should be no harassment of doctors merely because their treatment was unsuccessful. This Court directed that the Consumer Fora must proceed with any complaint only after another competent doctor or Committee of doctors refers that there was a prima facie case. In V. Krishan Rao versus Nikhil Super Speciality Hospital (2010) 5 SCC 513, para 33, this direction was however, held to be inconsistent with the binding judgment in Jacob Mathew (supra). It was held that there was obvious jurisprudential and conceptual differences between the cases of negligence of civil and criminal matters. Protection of the medical professionals on the one hand and protection of the consumer on the other are required to be balanced.
15. In this case, the Doctor performed the Hysterectomy as a first step in proceeding with the problem. She also got the biopsy done, which is the normal course to be adopted by any normal Doctor. It would have been altogether a different matter, if the Doctor would not have gotten the biopsy done and left the patient discharged after the surgery, but in this case, the biopsy was done during the surgery and its report came a few days later and this fact militates against any negligence on the part of the Doctor as she has taken all due precautions and processes and procedures to be followed in such a difficult situation as any normal Doctor would do. I am also relying on the opinion of the Uttar Pradesh Medical Council in the matter dated 20.04.2011, pursuant to a Complaint filed by the Respondent before the Medical Council of India, which in turn referred the Complaint to Uttar Pradesh Medical Council. The Order of the Uttar Pradesh Medical Council reads as, "The Ethical Committed has come to the conclusion that Dr. Indu Singh has explained the prognosis before operation she has also taken consent of attendant of the patient. She can not be held guilty of misconduct and medical negligence." On the other hand, no expert opinion has been adduced by the Respondent in support of their complaint of medical negligence. No finding of even the Respondent No. 4, which is the Super Speciality Hospital regarding their diagnosis at the time of admitting the patient has been filed in support of any medical negligence on the part of the Appellant Doctor.
16. I see no evidence of negligence on the part of the Appellants as the allegations are unsubstantiated. It is unfortunate that soon after the biopsy, taking the patient to the Super Specialty Hospital also could not save the patient and the patient died, but holding the Doctor negligent would be going against the spirit of the Order of the Hon'ble Supreme Court in the cases cited and therefore, in my considered view, I do not find any negligence on the part of the Appellants and, therefore, the Order of the State Commission suffers from certain presumptions of holding Appellants guilty of negligence, which cannot be substantiated and sustained.
17. In view of the aforesaid discussion, the Appeal is allowed, the Order of the State Commission is set aside and the Complaint is dismissed.
............................ BINOY KUMAR PRESIDING MEMBER