National Consumer Disputes Redressal
Ashok Kumar Upadhyaya & Anr. vs Dr. D.N. Misra (Professor) & Ors. on 2 February, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 5 OF 1998 1. Ashok Kumar Upadhyaya S/o Sh. A.P. Upadhyaya 2. Shashi Upadhyaya W/o Sh. Ashok Kumar Upadhyaya Formerly residing at the time of filing the complaint at: The District Institute of (The complainants at the Education & Training Campus, time of incident were at Shahganj Road, Jhansi, thereafter at Agra, Agra (U.P) Hardoi, Muradabad, Meerut Basti, Kanpur and Complainant No.1 finally retired at Agra) Now residing at: D-159, Sector -41, Noida, Gautam Budh Nagar, U.P. .Complainants Versus 1. Dr. D.N.Misra (Professor) Devalaya Opposite Gate No.3, M.L.B. Medical College, (Near Nirmal Hospital) Jhansi (U.P.) 2. Mr. Vidhya Nidhi Misra, Prabandhak, Nirmal Hospital, Opp. Gate No.3, M.L.B. Medical College, Jhansi (U.P.) 3. Mr. S.D. Pathak, Sanchalak, Nirmal Hospital, Opp. Gate No.3, M.L.B. Medical College, Jhansi (U.P.) 4. Dr. Dinesh Pratap Singh, Surgery Department, M.L.B. Medical College, Jhansi (U.P.) 5. The New India Assurance Co. Ltd. Jhansi, U.P. having its registered and Head Office at: New India Assurance Building, 87, M.G. Road, Fort, Mumbai-400 001 .........Opposite parties BEFORE: HON'BLE MR. JUSTICE R.K. BATTA, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Complainants : Mr. D.K.Nag, Advocate For the Opposite party No. 1 to 4 : Mr. M.P. Sharma, Advocate For Opposite Party No.5 : NEMO PRONOUNCED ON: 2-2-2011 ORDER
PER MR.VINAY KUMAR, MEMBER
1. This is the case of a young boy, less than sixteen years in age, who died within nine days of his ailment. The deceased Rahul was treated by two doctors, by the first in the first four days and by the other in the next five days, till his death i.e. Dr K.K.Khare from 12th to 16th and Dr D.N.Misra from 16th to 21st December 1996. His parents have filed this complaint against the following:-
1.
Dr D.N.Misra, the Professor, MLB Medical College and the doctor who treated him in the second part (OP-1),
2. Vidhya Nath Misra, Prabandhak of Nirmal Hospital where he died (OP-2),
3. S.D. Pathak, Sanchalak, Nirmal Hospital (OP-3),
4. Dr Dinesh Pratap Singh, Surgeon, MLB Medical College, (OP-4), and
5. New India Insurance Co. added as a respondent on 27.8.2009. on the request of Dr D.N.Misra (OP-5).
2. The case of the complainants is that on 12.12.1996 their son, late Rahul fell ill and was taken to Dr. K.K.Khare, a consulting Physician. It was diagnosed to be a case of RTI by Dr. Khare, who also got Rahul tested for Malaria. The blood test showed presence of Malaria parasite called Plasmodium Vivax. The treatment under Dr. Khare continued till 16.12.1996, but the condition of Rahul did not improve. He continued to suffer from high fever. He was, therefore, taken to Dr. D.N.Misra for treatment in the evening of 16.12.1996. Dr.Misra started the treatment after clinically examining him and after taking into account the treatment already given by Dr. Khare.
It is emphasized by the Complainants that no fresh tests, including fresh blood test, were conducted, inspite of the fact that Rahul, had not responded to the treatment of Dr. Khare.
3. As per advise of OP-1 to bring Rahul to his Nursing Home, known as Nirmal Hospital, the complainants took their son every day to Nirmal Hospital from 16.12.1996 to 20.12.1996 for, inter alia, the Falcigo injection. However, even though OP-1 examined the patient as a private consultant and charged Rs.70/- as his fee every day at Nirmal hospital from 16.12.1996 to 20.12.1996, he has not mentioned the dates in the clinical notes, the prescription or in other papers concerning the treatment of Rahul during this period. Falcigo injections were administered to late Rahul on each of these 5 days under the supervision of OP-2, as per the prescription of OP-1.
4. On 20.12.1996, sometime in the morning hours, OP-1 examined Rahul and advised the complainants to get their son injected with the regular dose of Falcigo. Even at this stage, no further investigations were suggested by OP-1, Dr D.N.Misra. In the evening of 20.12.1996, Rahuls condition suddenly deteriorated after the fifth injection of Falcigo was administered to him. When he started vomiting, the Complainant requested OP-1 Dr. D.N.Misra to make a visit and see the patient personally. As OP-1 did not come till about 7.30 p.m. the Complainant took his ailing son to Nirmal Hospital.
5. After seeing the patient, OP-1 admitted him as an inpatient in his private ward on payment of advance of Rs.3,000/- towards consultation, nursing home charges and medicines. The condition of Rahul deteriorated at about 11.00 p.m. at night. But, despite repeated requests from the Complainant, neither OP-1 nor any other doctor of the nursing home, was available to see the patient. An hour later, OP-1 instructed the compounder on the intercom to administer certain other drugs to Rahul.
He was later put on the oxygen.
6. In the complaint petition, it is claimed that if OP-1 or any other associated doctor had visited Rahul between 11 and 12 p.m. on the night of 20.12.1996, he could have survived. But for such carelessness and negligence on their part, together with serious deficiencies of services rendered by the staff at Nirmal Hospital, Rahul could still be alive.
7. The Complainant further alleges that, at about 4.00 a.m. on 21.12.1996, as is evident from the Bed Head Ticket, Dr D.N. Misra, OP-1, called OP-4, Dr. Dinesh Pratap Singh, who came at about 5.00 A.M. and examined Rahul. This examination revealed that Rahuls intestine was bleeding and that immediate blood transfusion was needed. Only one bottle of blood could be arranged from the United Pathology run by OP-3.
8. Despite OP-4 reporting his findings to OP-1 on the intercom, the latter did not come down-stairs to examine late Rahul personally. OP-1 saw Rahul only at about 6.00 a.m. on 21.12.1996. In the Bed Head Ticket (BHT) he advised few test to be done on the patient on the next date i.e. 22.12.1996. These tests became irrelevant as two hours after the visit of OP-1, Rahul expired at about 8.00 a.m. on the same day i.e. 21.12.1996.
9. The Complainants have alleged specific acts of failure or negligence in duty on the part of Dr. D.N.Misra, OP-1 and in particular the following:-
a) Late Rahuls blood was not tested for a second time after the respondent No.1 took him under his treatment on and from 16.12.1996.
This was in spite of the fact that for the four days prior to 16.12.1996, i.e. from 12.12.1996 to 15.12.1996 late Rahul had been treated for Plasmodium Vivax with anti-malarial drugs without any success.
b) ARTESUNATE Injection Falcigo was administered to Rahul without confirming the extant strain of malaria which had caused his illness.
c) The World Health Organisation literature regarding the drug Artesunate (WHO model prescribing information) also advises that A loading dose of 2mg/kg (body weight) should be followed by 1 mg/kg (body weight) after 4 hours and 24 hours. Thereafter, a dose of 1mg/kg (body weight) should be given daily until the patient is able to tolerate oral artesunate. In the present case, the above measures were not followed and/or ignored as Rahul was given an overdose of 60 mg artesunate regularly for a period of 5 days. This literature also prescribes that Caution should be exercised when more than 3 days treatment is given. This caution was possible and practical only if Dr. D.N.Misra had admitted Rahul in his Nursing Home on and from 16.12.1996 itself, which he neglected to do.
d) The WHO literature also says that Parenteral artesunate should be used for the treatment of severe Falciparum malaria only when there is evidence that antimalaria efficacy of quinine is declining. Rahul was not suffering Falciparum malaria and whether quinine resistance was declining, was also never tested. Copy of the WHO Model Prescribing Information for the drug Artesunate is annexed hereto is marked as Annexure-L.
e) Late Rahuls was a serious case of hypotension, anemia and internal bleeding. The respondent No.1 having full knowledge of the hypotension that Late Rahul was under, did not bother to identify the actual cause behind it and left late Rahul to his own fate on the fatal night of 20/21.12.1996
10. In so far as OP Nos. 2,3 and 4 are concerned, the following are mentioned as instances of negligence or professional inadequacy in their working which, according to the complainants, are evident from the contradictions and deficiencies appearing in the Case Summary Sheet (BHT) and the Nurses Daily Report (NDR)
a). Late Rahul was nursed in the said Nirmal Hospital by a boy named Raju. This is evident from the signatures which appear on the daily record sheet. Raju is an untrained and unqualified para-medical personnel who is actually a ward boy in the Government Medical College where the respondent No.1 is a professor.
b). The case summary sheet (BHT) shows that the respondent no.1 advised injection of Mephentine at 10.00 P.M. Whereas the daily record sheet shows that it was given to late Rahul at 5.00 a.m. on the morning of 21.12.1996.
c). It has been mentioned at page 3 in the Case Summary (BHT) that injections of Efcorlin of 200 mg each was to be given at an interval of 4 hours. The first and the second injections of Efcorlin were given to late Rahul at 9.15 p.m. and 12.00 p.m. Thereafter, the said injections were stopped without giving any reasons whatsoever.
d). A comparison between the BHT and the NDR reveals that the medicines prescribed by the respondent No.1 and the medicines actually given to late Rahul by the Compounder, were different on a number of occasions.
e). On the night of 20/21December, OP-1 had directed in the BHT
- Inj. Efcorlin200mg to be given I/V four hourly. But, the NDR shows that it was given only twice i.e. at 9.15 pm and 12 midnight.
f). Page 5 of the BHT shows that oxygen had been given to late Rahul from 4.00 a.m. to 8.00 a.m. but this has not been recorded in the NDR.
11. The complainants have also alleged that the records of treatment were subsequently tampered, through additions and alterations by OPs 1 to 4, before giving them to the complainants. The Complainant has alleged that several false entries were made in the BHT and case summary after the death of Rahul before he could get these documents from the Nirmal Hospital. Two entries have been specifically mentioned by the Complainant as false. The first related to a record in the BHT that the attendants of the late patient were not ready to take him to the Medical College. The second notes that the patient was found pulse-less and BP-less by one Dr. Gautam, who examined Rahul at 7.00 p.m. on 20.12.1996. The Complaint Petition states: It is specifically stated that neither were the complainants advised to take late Rahul to the medical college, nor did any Dr. Gautam examine late Rahul at 7.00 p.m. on 20.12.96. In fact, the complainants are not even aware of any Dr. Gautam.
12. The following are mentioned as other significant instances of such tampering/manipulation of records:-
a). The B.P. reading entered at 9.00 p.m. in the NDR was initially 80. This was later changed to 70 after over-writing on the previous reading.
b). Similar alterations have been made in the B.P. readings entered at 9.30 p.m. , 9.50 p.m. and 4.00 a.m. Similarly, at page 6 of BHT, timings have been over written.
c).
On page 4 in the BHT, the entry at 4.15 a.m. on 21.12.1996. says G.C. poor and advised ECG, X-ray chest and other tests for the next morning. These were inserted after the death of the patient.
d). On 21.12.1996. in the morning (shortly before the death of Rahul) the entry of 7.30a.m.in the BHT shows a direction to give Sodabicarb 2amps I/V. But, the entry at 7.15 a.m. in the NDR shows that it had already been given.
13. The complainants have claimed total compensation of Rs.124.82 lakhs, which includes Rs.30 lakhs for the mental agony and physical suffering undergone by them.
14. In his counter affidavit, the very first point raised by OP-1, Dr. D.N.Misra is that the entire service provided to the late son of the Complainants was without any consideration and given free of charge. As such, the Complainants are not a consumer of OP-1. He has also raised an issue about non-joinder of necessary parties. On account of non-joinder of Dr. K.K.Khare, who had initially treated Rahul as well as New India Assurance Company, who has provided a Doctors Indemnity Insurance policy to OP-1, he has contended that the complaint petition needs to be rejected.
15. According to OP-1, Rahul was brought to him in critical condition by Complainant1 on 16.12.1996. In view of his condition, he had advised the Complainant to admit his son in the Medical College Hospital, but the later did not agree and wanted his son to be treated as an out patient. Therefore, he started the patient on a five days treatment.
16. A very detailed defense has been given by OP-1 in support of his decision to put Rahul on daily Artesunate injection for five days, quoting extensively from clinical monographs and other medical literature. In this context, OP-1 notes in his counter-affidavit that:
The age of the deceased at the time of death was 15 years 11 months as such, he was to be administered doses as that of an adult and not of a child. The entire complaint is based on the presumption that deceased was child and the doses which ought to have been given should have been of less potency. This assumption is wrong. In Medical Science child above 12 years is treated as an adult.
17. On the allegation of the complainant that, going by his age and weight, Rahul was given an over-dose of Falcigo, Dr Misra says in his counter affidavit However, even if the dose of Falciago for Sri Rahul weighing 40 kgs is calculated as per contention of the complainants, the first dose being double, the total doses of Falcigo comes out to be 288 to 384 mg for treatment of 5 to 7 days duration. Therefore, even with this calculation the total dose prescribed to Sri Rahul comes within the recommended range. Further, there is no proof that the weight of late Mr. Rahul was 40 kg. It appears that the weight has been deliberately underestimated and cooked up with ulterior motive just to calculate lesser doses of the drug. Late Sri Rahul aged 16 years should be round about 50 kg or more as per standard chart. True copy of the standard chart of WHO is annexed herewith and marked Annexure R-7.
18. The complainant has also alleged that before starting the above treatment on 16.12.1996, no fresh blood or any other tests were conducted. OP-1 has explained that it was because earlier blood test report of Rahul had revealed malarial infection and he had already received anti-malarial chloroquine medicine, any further test would have been non-informative in the opinion of the OP No.1, which is a documented fact. And since clinical picture was very much suggestive of complicated/resistant malaria, he was advised a potent and non-toxic anti-malarial remedy i.e. Falcigo injection.( Para 12)But, in a later part of his counter affidavit ( Para 46), Dr Misra has given a very different reason for not conducting the tests, before starting the treatment. He has stated that the condition of late Sri Rahul did not warrant the said tests on 16.12.96 in the opinion of the answering OP. These tests were written by him on 21.12.96 at 4.15 a.m. because of the complications which developed at that time and could be carried out only after the patient recovered from the shock. Reverting to the subject of the pathology report yet again in Para 50 of his counter affidavit, Dr Misra says Patient had also raised serum bilirubin as has been noted by respondent no.1 at page 2 of BHT. This further substantiated the severity of malaria..Rise in serum bilirubin is not the usual feature of benign malaria. Even the possibility of Pathologist erring in correctly detecting the exact strain of malarial parasite cannot be ruled out.
19. Further, OP1 has denied that during the period 16.12.1996 to 20.12.1996 Rahul was brought to him for either clinical examination or administration for injection. The Complainant had however, kept him informed about the condition of his son, which was reported to be satisfactory.
20. In the evening of 20.12.1996, OP-1 was informed by the Complainant about deterioration in Rahuls condition after the fifth injection of Falcigo. He was reportedly sweating and vomiting and therefore, OP-1 advised the Complainant to bring him immediately. He has stated in the counter-affidavit that: It is submitted that the patient was brought only at 9 p.m. and was immediately examined. Further, no fee was charged either for consultation or for nursing home and, therefore, Nil amount shown in the BHT is correct. The complainant was one of the senior most Officer of Education Department posted at Jhansi and was accompanied by Dr. Gautam and was earlier introduced by Mr. Siddiq Ali, Steno to the Principal Medical College, Jhansi, whose brother was working as Clerk under Complainant No.1, Mr. Ashok Upadhya.
21. OP-1 has stated that in the night he had personally inquired about the condition of the patient, which was stable till midnight. In fact, oxygen was given once at the time of admission at 9.00 p.m. for a short duration and thereafter from about 4.00 a.m. till 8.00 a.m. on 21.12.1996. According to OP-1, the condition of the patient deteriorated at about 3.00 a.m. on 21.12.1996 when he was called to see the patient. A mephentine injection was given in his presence at about 4.00 a.m. to bring down the blood pressure. As there was no improvement, Dr. Dinesh Pratap, was called in about 5.00 a.m. who examined the patient and advised blood transfusion to raise the blood pressure. However, the condition of the patient continued to deteriorate inspite of all measures and he finally died at about 8.00 a.m. on 21.12.1996.
22. Answering the allegation of gross neglect, OP-1 states in the counter-affidavit that he was by the side of the patient virtually from 3.00 a.m. onward and was personally supervising the treatment carried out till the last. The regular round time of the respondent No.1 is around 9.00 a.m., and not 6.00 a.m. as alleged. All the entries in the BHT are in the handwriting of the deponent himself.
23. In several places in the counter affidavit of OP-1, the recording gaps between the BHT and the NDR have been explained. However, these explanations do not sufficiently answer the gaps. Thus, entries relating to Efcorline injection, Inderal tablets and Styptochrome have been explained as oversight and every one being busy with saving the life of the patient.
24. We have heard the counsels for the two parties, examined the records of the case as well as the evidence of the parties and perused the opinions expressed in the related medical monographs and journals. In the course of these proceedings, a request was received on behalf of the Complainants to cross-examine OP-1 with reference to his affidavit evidence. The Commission appointed Sri Ravi Kumar, former Additional District Judge, as Local Commissioner to record the evidence. It was later changed to seeking written replies to interrogatories. It was held that no contradictions were pointed out in the replies to interrogatories that could need clarification. Secondly, affidavits filed by Sri Siddique Ali, Raju and Dr Gautam, referred to by OP-1 in his affidavit were accepted as admissible in evidence. The Complainants were given opportunity to test the veracity of these affidavits by serving interrogatories on them. The interrogatories served on OP-1 and the other three persons together with their responses have been perused by us.
Subsequently, on the request of the Respondents, New India Assurance Co. Ltd. has been impleaded as OP-5 as it had given a doctors indemnity insurance policy for Rs.5 lakhs to Dr. D.N.Misra in the relevant period i.e. from 4.1.1996 to 03.01.1997 as well as OP-4.
25. Before proceeding to examine the merits of the case it is necessary to examine the issue of jurisdiction raised in the counter affidavit of OP-1. As already noted in Para-14 of this Order, it is claimed The medical services given by the answering OP were without any consideration and free of charge and, as such, the complainants cannot be regarded as consumers of the answering OP within the meaning in Section 2[1][d][ii] of the Consumer Protection Act. This needs to be seen in its true perspective. In the Complaint Petition it is alleged that OPs 1,2 and 3 are co-related. OPs 1 and 2 are brothers. OP-1 was carrying on medical practice at Nirmal Hospital. OP-2 is shown as its Prabandhak. He is also running the Manas Medical Store, which sells medicines to the patients treated at Nirmal Hospital. OP-3 is the Sanchalak of Nirmal Hospital.
26. Responding to this, OP-1 says in Para 57 of his Counter affidavit it is true that OP nos. 2 and 3 are relatives of answering OP, but the answering OP never charged any fee for his services, which he rendered to the Nirmal Hospital run and managed by OP no. 2 and 3 nor he had any share in the medical store which was run by OP No.2. However, it may be mentioned that OP No. 2, who runs the medical store in Nirmal Hospital, was present at the time of the admission of late Sri Rahul. The BHT was prepared by him. The consent form for admission and treatment was got signed by him from complainant No. 1. The seriousness of illness of late Sri Rahul was explained to the complainants before him.
The OP No.2 got the stamp depicting the seriousness of the case on page 2 of BHT affixed and then he obtained the signature of complainant No.1 on it. No advance money, as alleged, was got deposited. He left the hospital only when the condition of late Sri Rahul became stable. He again was present at 3.00 am and remained there till the death of late Sri Rahul in order to ensure the availability of all the medicines and other things required for treatment of the case.
27. The above statement of OP-1 should be seen in conjunction with the replies given by him to relevant interrogatories of the Complainants, as reproduced below:-
Q.46 Is it correct that Nirmal Hospital is/was your family business?
Ans. You may say so. I have already mentioned that my wife is the proprietor of Nirmal Hospital.
Q.47 Is it correct that Nirmal Hospital is was owned by your wife at the relevant time, i.e. when the deceased Rahul Upadhyaya was treated by you as a private patient?
Ans. This question has already been replied in foregoing paras. The treatment of Mr. Rahul Upadhyaya was carried out completely free.
Q.48. How are you related to respondent nos.2 and 3?
Ans. Respondent No.2 (Sri Vidya Nidhi Mishra) is my younger brother and Respondent No.3(Sri S.D.Pathak) is younger brother of my brother-in-law.
28. From the above, two points become clear. First that there is no distinction between Nirmal Hospital on the one hand and the Manas Medical Store on the other. The level of integration between the two is explained by Dr. Misra himself, in the process of detailing the role played by OP-2, Vidya Nidhi Mishra, in the entire matter from the arrival of the patient on 20.12.1996 till his death on 21.12.1996. Logically therefore, payment to one becomes payment to both. Secondly, as per the statement of Dr. Misra he never charged any fee for his services, which he rendered to the Nirmal Hospital.
Therefore, his claim that medical services given by him in this case were free of charge, will appear to be a matter of normal practice followed by him and not a special dispensation in this case.
29. The Complainant has claimed that at the time of admission of Rahul, a sum of Rs.3000/- was taken from him towards consultation, nursing home charges and medicines. He has not been able to produce receipt for this entire amount but has produced receipt of 20.12.1996 towards medicines and injections purchased for Rs.1,013/-, receipt of 16.12.96 for Rs.525.96, receipt of 20.12.96 for Rs.111/- and an undated receipt of Rs.1,245.50, all from Manas Medical Store. These documents, in the background of the fact that the hospital and the medical shop were being run as an integrated facility by one family, as detailed above, are enough to disprove the claim that no payment was taken from the Complainants. Accordingly, we conclude that it was not a case of a service rendered free of charge within the meaning of Section 2 (1) (o) of the Consumer Protection Act, 1986, which can disentitle the Complainants to claim protection under the Act as a Consumer under Section 2(1)(d)(ii).
30. A foregoing paragraph of this order, we have also referred to the objection of OP-1 to non-joinder of two necessary parties, Dr. K.K.Khare, who had initially treated Rahul before he was brought to OP-1 and the New India Assurance Company. It is seen that one of these two parties namely, New India Assurance Company, has been eventually impleaded as a respondent (OP-5) on 27.8.2009, on the application of OP-1 himself. We, therefore, fail to understand why he did not seek to similarly implead Dr. Khare also, as one of the respondents. More so, as the patient was admittedly, brought to him on 16.12.1996 in serious condition, immediately after five days of treatment by Dr Khare. In so far as the Complainants are concerned, the reason for Dr. Khare not being impleaded as a respondent is apparent from the contents of the Complaint petition itself. The Complainants have sought no relief against Dr. Khare and therefore have not impleaded him. Consequently, in our view the complaint petition cannot fall on this ground.
31. Counsel for the Complainants has drawn our attention to the medical opinions of Dr. P.S. Bhandari dated 12.7.2004 and Dr. A.K. Jain dated 4.10.2007. As seen from his letterhead, Dr. Bhandari is a Consultant Physician and a Cardiologist. Arguing the case of OP-1, the respondent counsel objected to these two letters being considered in evidence on the ground that written opinion, without oral examination, is not admissible in evidence. In this behalf, the ruling in 2009 IX SCC 709, was cited. We accept this objection and accordingly do not take these two letters into consideration.
32. Counsel for the Complainants has also pointed to the following contradictions in the affidavit evidence of Dr. Misra:-
a. In one place he claims that no fresh blood test was done before starting the treatment on16.12.1996, as it would not have served any useful purpose. In another part of the affidavit he has stated that seriousness of the condition of the patient did not warrant the test. If this was the position of the patient on 16.12.1996, how could he prescribe all those tests on 21.12.1996 when the condition of Rahul had admittedly worsened?
b. It is claimed by Dr. Misra that seeing the serious condition of the patient on16.12.1996, he had advised the Complaints to admit him in the Medical College. According to him, the Complainants refused to do so. In his reply to the relevant interrogatory, he has confirmed that he had advised the Complainant as above, though only orally. This would however not explain why did Dr. Misra not go by his professional judgment and admit the patient to Nirmal Hospital due to his serious condition, instead of accepting to treat him only because the complainant allegedly, wanted his son to be treated as an Out Patient.
c. In his written arguments, at one point Dr Misra has claimed that he is himself a highly qualified Professor of Medicine with experience of 26 years as a specialist. Hence, there was no point in referring the deceased to another specialist. Contrarily, at another point, he argues The Hospital record (BHT) shows that when the condition of late Mr Rahul was not improving despite all possible treatment the complainant was advised first at 4.15 AM & then again at 4.40 AM on 21.12.96 to shift Late Mr Rahul to Medical College but the complainant declined to shift and deposed full faith in the treatment being carried out.
We agree with the contention of the counsel that in the above matters, contradictions in the arguments of OP-1 are apparent.
33. We have examined above one aspect of treatment through Artisunate viz. that to administer this drug for a spell longer then three days, the patient needs to be kept in observation to guard against Cardio-toxicity. The other aspects relate to the dosages itself. The Complainants have quoted the WHO as recommending that it should be based on per kilogram body weight of the patient. As Falcigo injection were given to late Rahul for five continues days from 16.12.1996 only with reference to his age and without reference to his low body weight, it is alleged by the Complainants that he was administered over dose of Artisunate. On this point, the response of OP-1 has been fully reproduced in Para 17 of this order. Dr. Misra has explained that even taking the weight of Rahaul as 40 kilos the total drug administered being 300 mgs whereas, it remains within the prescribed limit of 288 to 384 mgs. He however, does not stop there and goes on to alleging that the weight of the patient has been deliberately under estimated and cooked up with ulterior motive just to calculate lesser doses of drugs. Late Shri Rahul aged 16 years should be round about 50 kgms or more as per standard chart. This comment, coming from a senior professional, who had failed to link the dosage of the drug to the body weight of the patient, is considered by us to be singularly unprofessional and unacceptable.
34. The counsel for OP-1 has argued that between 16th and 20th of December, 1996 there was no hospitalization and the patient took the treatment as prescribed. He has quoted the Complaints themselves as mentioning that on the 20th Morning the temperature of the patient was found to be normal. According to him, there is nothing on record to show that he had developed any problem or complications until then. Hence, this is a case of death due to bad luck and not due to Falcigo treatment. The Respondent counsel has quoted from three Monographs in support of his claim that Artesunate is not only a patent drug for treatment of malaria, but also relatively safe one. We find that the medical literature quoted by him has also considered the toxicity and adverse effects of Artisunate. It is stated that while the cardio effects of the drug are not very important from the clinical point of view, caution is required against combination with other drugs.
35. Therefore, the essential question gets limited to the dosage and manner of administration of Artesunate and not its efficacy in treatment of malaria. Counsel for the Complainants, has drawn our attention to a write up in Crusade against Malaria in which, in the context of treatment with Artesunate, it is noted that In view of uncertainty about toxic effects, caution should be exercised when more than one 3 day treatment is given. Cardio-toxicity has been observed following administration of high doses.
36. We are therefore of the opinion that the patient should have been hospitalized from the date of administering the first injection of Artesinuate Falcigo till the course was over i.e. from the 16.12.1996 onwards. This is because this injection is known to sometimes cause Cardio-toxicity, for which monitoring of the patient was necessary. Secondly, as a matter of normal prudence, fresh blood test was necessary before putting the patient for the second time on anti malarial treatment on 16.12.1996. This test was required to determine the correctness of the first blood test report of 13.12.1996 as treatment based thereon, for five days, did not have any positive effect on the condition of the patient. It was required also for determining whether the patient was suffering from any other disease.
37. It is alleged by the Complaints that Late Rahul was serious case of hypotension, anemia and internal bleeding. OP-1 had full knowledge of it, but did not care to identify actual cause behind it, leaving Rahul to its own fate on the night of 20th/ 21st December, 1996. In its counter-affidavit OP-1 has responded to it by saying that: at the time of admission, the cause of hypotension was thought to be due to hypovolaemia, resulting from poor oral intake, vomiting and perspiration. There was not clinical evidence of bleeding and patient had no history of blood vomiting and malena. He was managed accordingly and blood pressure came up with I.V. fluids and other measures.
It was only when BP fell down again in the morning of 21st, slight distention of abdomen was noted at 4 am and possibility of internal bleeding was suspected.
38. We have examined the affidavit evidence of Siddiq Ali and find it relevant only to the extent it explains how Complainant-1 chose to come to OP-1 for the treatment of his son. His statement that no fee was charged for it, cannot be accepted as it is not based on his personal knowledge. It is also contrary to the money receipts on record. Similarly, the evidence of Dr Ajay Gautam helps only in substantiating that the patient was in a bad state (in a state of shock in his own words) when he was brought to Nirmal hospital on 20.12.1996. Both these facts are, in any case, not in question.
39. From the affidavit evidence of OP-4, Dr Dinesh Pratap (not Dinesh Pratap Singh, as mentioned by the complainant) it is seen that he is not a part of the Nirmal Hospital team that treated late Rahul. His role was limited to examining the patient, a few hours before death, on the request of OP-1. However, his evidence is significant as it establishes that the patient eventually suffered from intestinal bleeding. In our view, a single visit on 21.12.1996 on the call of a senior colleague from the profession, examining the patient a few hours before he died and giving the finding of examination to OP-1, does not make him responsible or answerable for the line of treatment followed since 16.12.1996.
40. Respondent counsel has argued that, in the absence of expert medical evidence, it cannot be established that it was a case of medical negligence. In our view, this argument needs to be rejected. The law on this subject is very clear. The question whether expert medical evidence is necessary or not, has been directly addressed by Hble Supreme Court of India in V.Krishan Rao Vs. Nikhil Super Speciality Hospital in the judgment delivered on 8.3.2010. The court has held that In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such evidence would be illusory,
41. Finally, in his written arguments, OP-1 Dr. Misra, has quoted extensively from the decision of Honble Supreme Court in Martin F D Souza Vs. Mohd. Ishfaq (2009) 3 SCC page 1. In particular, reliance has been placed on the following observations of Hon. Supreme Court:-
40. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur.
No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient.
42. In this landmark judgment, the Apex court has delineated the boundaries of the law on medical negligence. It was held that a medical practitioner would be liable for negligence only where his conduct fell below that of the standards of a reasonably competent doctor. The standard of care has to be judged in the light of knowledge and equipment available at the relevant point of time.
43. The Apex court also clarified that an error of judgment may or may not be negligent. It depends on the nature of the error. Also, what is reasonable and what is unreasonable is a matter on which even experts may disagree.
44. The professional is one who professes to have some special skill. A professional impliedly assures the person dealing with him i.that he has the skill which he professes to posses,and ii.that skill shall be exercised with reasonable care and caution.
Honble Supreme Court has gone on to state that doctors/hospitals/nursing homes should take the following precautions:-
(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly.
(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.
(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.
(e) An expert should be consulted in case of any doubt.
(f) Full record of the diagnosis, treatment, etc. should be maintained.
45. Therefore, in the present case, the fact that Rahul died at Nirmal Hospital, cannot be taken as proof in itself, that the OPs are guilty of medical negligence. We need to consider whether the conduct of the respondents, in particular OP-1, fell below the standards of a reasonably competent doctor, placed in his situation and whether the precautions, outlined above by the Apex Court, were taken. With this in view, we need to consider the following
1. The condition of the patient was admittedly so serious in the evening of 16.12.1996, on arrival at Nirmal Hospital, that OP-1 claims to have advised the complainant to admit him in the medical college. Yet, OP-1 agreed to treat him as an outpatient for the next five days.
2. Despite such condition of the patient, treatment was commenced on 16.12.1996, on the assumption that it was a case of malaria of quinine resistant strain. No tests/ investigations were carried out to rule out other possibilities.
3. For treatment with falcigo injections for five continuous days, the requirement clearly was to determine the dosage with reference to the weight of the patient and administer the injections under medical observation. Neither was done. The weight of the patient was not even recorded, let alone being referred to for determining the dosage. In this background, the response of OP-1 to this lapse, in his defense, stands out as a shocking example of lack of professionalism. He has accused the Complainant himself of underestimating Rahuls weight with ulterior motive!
4. In the evening of 20.12.1996 the condition of the patient had become very bad, when he was brought to Nirmal Hospital. He was in a state of shock, as per Dr Gautam, cited by OP-1 himself. In the professional opinion of OP-1, the patient needed to be admitted in the Medical College. Despite such serious condition of the patient, the record of his treatment after admission into Nirmal Hospital was not properly maintained. The gaps between the Bed Head Ticket(BHT) and the Nurses Daily Report (NDR) cannot be accepted as evidence of reasonable professional care and propriety of procedure on the part of OPs-1,2 and 3.
46.In our view, these acts of commission and omission do not pass the test of reasonableness of medical conduct and need to be treated as acts of medical negligence. What compounds the lapse is the fact that these are the acts the team at Nirmal Hospital led by a senior medical professional, of the stature of OP-1. The answerability of OP-1 increases when we see that Nirmal Hospital, in his own admission, was owned by his wife and managed by his brother and another relative.
47. For the reasons detailed above, we hold that the case of medical negligence is unambiguously established against the Respondents/Objection Petitioners, excluding OP-4. In so far as OP-4 is concerned, no case is made out against him.
48. From the above conclusion, of medical negligence on the part of the OPs, excluding OP-4, we now propose to assess the amount of compensation, which can reasonably be paid in the facts and circumstances of this case. The Complainants have given their assessments in which an expenditure of Rs.2.38 lakhs is projected, had Rahul lived to complete his school education for the remaining two years and BE/B Tech course in the next five years and net earnings of Rs.97.2 lakhs, in a working life from the age of 24 till 65 years.
In addition, Rs.20 lakhs have been claimed towards mental agony and torture suffered by the Complainants i.e. father and mother of the deceased. Another Rs.10 lakhs have been claimed for the medical condition suffered by the Complainant No.2 i.e. the mother, due to untimely death of her son.
Thus, a total of Rs.124.82 lakhs has been claimed by the Complaints in this case.
49. While we may not accept the above computation based on working life expectancy from the age of 24 to 65 year in the case of a 16 year old child, the need would still remain to arrive at an amount which is just and reasonable in the facts and circumstances of the present case. This itself is not an easy task. This was considered by Honble Supreme Court in the State of Haryana Vs. Jasbir Kaur, (2003) 7 SCC 484. The Honble Apex Court has held that:
It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be just and it cannot be a bonanza not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be just compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of just compensation which is the pivotal consideration
50. The problem acquires added dimensions in case of a child, as observed by Honble Supreme Court of India in New India Assurance Company Ltd. Vs. Satender and others, (2006) 13 SCC
60. The problem has been clearly spelt out in the following observations:-
The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork.
In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated bases. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation.
51. In the present case, the following factors must be borne in mind while computing the amount of compensation a.
The complainants come from the upper strata of the society where parents are not financially dependent upon the income, present or future of their children.
b.
The father of the victim of medical negligence in this case, Complainant 1, is a senior government Officer with an assured salary, while in service and pension, on retirement.
c.
The period of illness being under 10 days, the actual expenditure on treatment could not be a large sum.
d.
The respondents need to compensate the complainants for the suffering under gone by late Rahul.
e.
The respondents need to compensate the Complainants for the emotional loss suffered in the death of their young son and the continuing physical suffering in the case of his mother.
52. We therefore award the following amounts as just and reasonable compensation in this case i. Expenses of treatment and other attendant costs-
Rs.100,000/-
ii. Compensation due to death of Rahul- (Lump sum).
Rs.600,000/-
iii To Complainant 1 for mental trauma and agony-
Rs.200,000/-
iv To Complainant 2 for agony undergone and being suffered-
Rs.200,000/-
Total compensation:
Rs.1100,000/-
This amount shall be paid by the respondents excluding OP-4, jointly and severally, within a period of three months from the date of this order. However, the liability of OP-5 shall be limited to Rs.5 lakhs in term of the policy.
.
(R.K.BATTA, J.) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER Sj./-