State Consumer Disputes Redressal Commission
Rajat Jain vs D.R. Nursing Home on 30 October, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 30-10-2006 Complaint Case No. C-167/96 1.Shri Rajat Jain, Complainant 2. Shobit Jain, Through Both sons of Shri Sushil Kr. Jain, Mr. Tarun Bedi, R/o B-18, Vivek Vihar, Advocate. Phase II, Delhi. Versus 1. D.R. Nursing Home Opposite Party No.1 through its MD Through C-2/3, Ashok Vihar, Mr. P.D. Gupta, Phase II, Delhi-110052. Advocate. 2. Dr. P.N. Gupta. Opposite Party No.2. R/o C-3/51, Ashok Vihar, Through Phase II, Delhi-110052. Mr. P.D. Gupta, Advocate. 3. Dr. Shashi Gupta, Opposite Party No.3 R/o C-3/51, Ashok vihar, Through Phase II, Delhi-110052. Mr. P.D. Gupta, Advocate. 4. Dr. Arvind Bansal, Opposite Party No.4 R/o 27/7, Shakti Nagar, Through Delhi-110007. Mr. P.D. Gupta, Advocate. 5. Dr. K.N. Singhala, Opposite Party No.5 C-3/68, Ashok Vihar, Through Phase II, Mr. P.D. Gupta, Delhi-110052. Advocate. 6. Dr. Rajindra Kumar Murtika, Opposite Party No.6 R/o D-4/3, Model Town, Through Delhi-110009. Mr. P.D. Gupta, Advocate. 7. United India Insurance Co. Ltd. Opposite Party No.7 Divisional Office No. 2, Asaf Ali Road, New Delhi. 8. National Insurance Co. Ltd. Opposite Party No.8 Division No.5, 7th Floor, Through Hemkunt Towers, Mr. Pradeep Gaur, Rajendra Place, Advocate. New Delhi. CORAM : Justice J.D. Kapoor - President Mr. Mahesh Chandra - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) The complainants are minor sons of deceased Smt. Anita Jain. They have filed the instant complaint through their guardian, maternal uncle Mr. Ravi Jain. They have sought compensation of Rs. 15 lacs for medical negligence of OPs in conducting the operation for Hernia that resulted in the death of deceased Anita Jain.
2. Case of the of the complainants, in brief, is as under:-
3. The deceased Smt. Anita Jain contacted respondent No.2 Dr. P.N. Gupta at D.R. Nursing Home, the OP No.1 for treatment of hernia and the OP No.2 suggested to the deceased Anita Jain for operation and called her for testing of blood etc. for 6.6.1994. She was admitted in OP No.1-Nursing Home. on 7.6.1994 and was taken to operation theatre at about 8.30 A.M. on 8.6.1994, OP No.2 Dr. P.N. Gupta appointed three doctors for operation including Dr. Mrs. Shashi Gupta ( OP No.3), Dr. K.N. Singh(OP No.5) and Dr. Arvind Bansal (OP No.4) whereas the OPs No.2 to 5 were not Surgeons. OP No.2 had charged Rs. 10,000/- for operation and received the same but he did not issue any receipt of the amount intentionally. Furthermore, the infrastructure facilities were not available at operation theatre at the time of operation of deceased Anita Jain as such her condition became worse in the operation theatre due to the negligence of OP No.2 to 5 and deceased became unconscious and went in coma.
4. Further that OP No.2 to 5 did not disclose to the relatives of the deceased Smt. Anita Jain that her condition had become worse or whether there was requirement of any other doctor for consultation. There was no oxygen cylinder at the time of operation and when the condition of the deceased Smt. Anita Jain deteriorated further, oxygen cylinder was brought from the second floor.
5. Later deceased was shifted from OP No.1 to Sunder Lal Jain Hospital after a big hue and cry by the relatives of the deceased. Moreover, OP No.1 had no ambulance facility to shift the deceased from operation theatre to another place while the OP No.1 to 5 had undertaken to conduct the operation of the deceased. Only outer skin of the body was stitched and this showed the clear negligence of the OPs. The deceased could not recover and died on 14-06-1994 at about 6.00 A.M. at Sunder Lal Hospital, Ashok Vihar due to the negligence of OPs No. 1 to 5.
6. The police officials of P.S. Ashok Vihar registered a case under F.IR. No. 191 of 1994 u/s 304-A of I.P.C. and sent the dead body of the deceased for post mortem. Post Mortem report clearly expressed that deceased died due to coma following Hypoxia consequent to administration of anaesthesia during surgery and further expressed that only outer skin was stitched and no peritoneum and muscles layer was stitched.
7. That the death of Smt. Anita Jain caused a big monetary loss to the family members of the deceased for which the OP No.1 to 5 are liable to pay compensation of Rs. 15 lacs with interest. Hence this complaint.
8. OPs No.1 to 5 have refuted the allegations of medical negligence. Their version, as brought out in reply is joint and is as under :-
(i) That this complaint is not maintainable before this Commission as the subject matter involved in the present case is subjudice before a criminal court of competent jurisdiction.
(ii) That a Medical Board was constituted under the orders of Director of Health Services, Government of NCT of Delhi to investigate the incident. The Committee made visits to the nursing home, inspected its apparatus, equipments including the record and interviewed the Doctors. The report of the Medical Board has absolved the OPs from the charge of medical negligence.
(iii) That the allegations made and the controversy raised in the present case are complicated in nature and cannot be decided without taking the detailed opinion and evidence of the experts on the medical science and as such this Commission has no jurisdiction to entertain and try the present petition.
(iv) That the complaint has not been filed by a competent person. Sh. Ravi Kumar Jain is neither the legal guardian nor the next friend of the minor complainants.
(v) OP No.3 and 5 did not participate in the performance of the operation of the deceased Smt. Anita Jain in any manner. During the operation, when the patient got cardiac arrest, attempt was made to revive the heart and OP No.5 was called for help. The patient was revived successfully.
(vi) That OP No.2 is a qualified and experienced surgical assistant while OP No.3 is a Senior Gynecologist-cum-Obstretrician. OP No.4 Dr. Arvind Bansal is a senior Anesthetist and Dr. K.N. Singla, OP No.5 is a Physician who assisted in reviving the patient at the time of cardiac arrest.
(vii) It was OP No.2-Dr. R.K. Mitrunka, Surgeon who conducted the operation on the person of deceased. However, other doctors were also present in the operation theatre as a part of the operating team.
(viii) Further no amount was to be charged from the patient being daughter-in-law of a family friend of Dr. P.N. Gupta and his father.
(ix) It is wrong that the condition of the deceased became worse in the operation theatre due to the negligence of OP No. 2 to 5 as alleged. The patient, no doubt, had cardiac arrest during the operation but was successfully revived due to the vigilance and the competence of the OP doctors.
Administration of Norcuron, a muscle relaxant drug during anesthesia is a routine. This drug is widely used all over world. Handling of peritoneum and the Omentum adherent to the Hernia sac is unavoidable in a Hernia repair.
(x) The use of Norcuron coupled with handling of peritoneum and the Omentum adherent to the hernial sac can cause cardiac arrest. The relations of the deceased were being informed about the condition of the patient every now and then and the OPs were in constant touch with them.
(xi) Deceased Anita was admitted in the Intensive Care Unit of Sunder Lal Jain Hospital. When the patient was admitted in Sunder Lal Jain Hospital and put under observation, her heart was beating. She was breathing without assistance of any artificial means and was also responding to the pinches (painful stimulation). It is absolutely wrong that there was no Oxygen Cylinder at the time of operation, as alleged. Smt. Anita Jain remained alive from 8th June, 1994 to 14th June, 1994 i.e. for a period of seven days in Intensive Care Unit of Sunder Lal Jain Hospital.
(xii) It is absolutely wrong that only outer skin of the body was stitched. Peritoneum, sheath and skin, all were stitched properly. For stitching Peritoneum, absorbable suture was used and for stitching the sheath, non-absorbable suture (prolene) was used.
9. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
10. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
11. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.(4)
The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
12. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
13. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
14. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death.
Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
15. It has not been established whether the life of the deceased could have been saved or not because no material has been produced before us showing that it was only because of the non-availability of the oxygen cylinder that the subsequent treatment of the deceased at the Sunder Lal Jain Hospital was rendered useless, ineffective or not even worthy of being given at the time when the patient was brought to Sunder Lal Jain Hospital.
16. In our view whenever any person approaches a hospital or nursing home of such magnitude or standard and it accepts the patients in such condition who requires emergency treatment and any lapse or shortcoming or imperfection of such nursing home in not arranging oxygen cylinder or any other such equipment for sufficiently long time amounts to medical negligence and entitles the consumer reasonable compensation.
17. As is apparent from the aforesaid allegations of the complainant the main allegation being against the OP-nursing home is as to the administrative deficiency in as much as that there was no doctor available for sometime nor there was oxygen available at the time of operation and oxygen was brought from the second floor when the condition of the deceased Anita Jain started deteriorating. As per post-mortem report the cause of death was due to hypoxia followed by coma. As per Taylors Principles of Practices of Medical Jurisprudence hypoxia is a condition in which there is inadequate supply of oxygen to tissues. The operation of the deceased is alleged to have started at 9.00 A.M. whereas she died due to cardiac arrest after seven days at another nursing home i.e. Sunder Lal Jain Hospital where she was transferred on the same day when she was taken to OPs nursing home at 12.15 P.M.
18. Thus at the most the OP-Nursing Home along with OP No.2 alone can be held guilty for medical negligence firstly because of having not arranged the oxygen cylinder immediately at the time of operation and secondly because of immediate non-availability of doctors who were competent to handle such a patient. None of the doctors except OP No.2 had operated the complainant and therefore they cannot be held guilty for medical negligence.
19. As regards the objection that complaint u/s 12 of Consumer Protection Act is not maintainable because of pendency of a criminal case, there is no force as scope of complaint under the Consumer Protection Act is altogether different and only deficiency or negligence in service is to be assessed for the purpose of compensation. Proceedings under I.P.C.
are independent whereas remedy under the Consumer Protection Act is additional and not in derogation of any other law for the time being in force.
20. The Medical Board constituted under the orders of Director of Health Services, Government of NCT of Delhi to investigate the incident has given the following observations:-
OBSERVATIONS OF THE COMMITTEE : After an indepth analysis of the various facts of the case in the light of available material evidences provided to, and collected by the Committee, it appears that Smt. Anita Jain was suffering from a minor surgical problem and was not found to be suffering from any major medical problem during the pre-anaesthesia check up.
The condition of Smt. Anita Jain suddenly deteriorated during surgery possibly due to factors related to anaesthesia and surgery. The progressive bradicardia which ultimately resulted in cardiac arrest is partly explainable by known but uncommon side effect of the drug vercuronium (Norcuron) which is a commonly used and well accepted muscle-relaxant used in anaesthesia. Handling of omentum and gut during surgery could also have contributed to the bradycardia. Nevertheless, the patient received all such treatment as indicated in medical science, following this complication during surgery in the instant case.
CONCLUSION: Keeping in view the terms of reference of the enquiry Committee concluded as follows:-
a.
Smt. Anita Jain developed progressive bradicardia leading to cardiac as a result of known but uncommon side effects of one of the drugs vercuronium used in anaesthesia. Handling of the omentium could also have contributed to complication.
b.
No evidence of drug overdosage was noticed and the doses of drugs administered were within normal prescribed limits.
c.
No evidence of any negligence on the part of team of doctors managing the case could be detected in both the hospitals. All the doctors involved in this case are qualified experts to deal with such kind of a case/situation.
d.
Both D.R. Nursing Home and Sunder Lal Jain Hospital are registered Nursing Homes and are found conforming to the norms laid down under the Delhi Nursing Homes Registration Rules, 1953, 1966, 1992 (Amended).
21. In the given facts and circumstances of the case particularly the administrative delay in not arranging oxygen by the OP nursing home especially the patient was sent to another hospital when her condition became so serious because of hypoxia i.e. due to inadequate supply of oxygen was immediately removed to Sunder Lal Jain Hospital, we deem that lumpsum compensation of Rs. 1,00,000/- (Rupees One Lac) besides Rs. 10,000/- as cost of litigation would meet the ends of justice.
22. Complaint is allowed and disposed of in aforesaid terms. Payment shall be made within one month.
23. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge And thereafter the file be consigned to Record Room.
24. Announced on the 30th October, 2006.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member jj