State Consumer Disputes Redressal Commission
Girdhar Kumar Vaishya vs Apollo Hospital Bilaspur & Ors. on 15 May, 2023
Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
CC/17/69 Vs. 15/05/2023
Apollo Hospital Bilaspur & Ors.
AFR / NAFR
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Date of Institution: 24/08/2017
Date of Final Hearing: 19/04/2023
Date of Pronouncement: 15/05/2023
COMPLAINT CASE No.- CC/2017/69
IN THE MATTER OF :
Girdhar Kumar Vaishya,
S/o. Late Shri Bholaram Vaishya,
R/o. Kashinagar Korba,
Tah. & Dist. KORBA (C.G.)
Through: Shri Ajeet Bharat, Advocate
... Complainant.
Vs.
1. Apollo Hospital Bilaspur, Dist. Bilaspur (C.G.)
Through: Managing Director/ Executive Director,
BILASPUR (C.G.).
2. Chief Medical Officer,
Apollo Hospital Bilaspur,
Dist. BILASPUR (C.G.).
3. Dr. Manoj Rai, M.D. (Internal Medicine),
Apollo Hospital Bilaspur,
Dist. BILASPUR (C.G.).
4. Dr. Vijay Kumar Shrivas, (DNB) (Internal Medicine),
Apollo Hospital Bilaspur,
Dist. BILASPUR (C.G.).
Through: Shri Alok Bakshi, Advocate
... Opposite Parties
CORAM: -
HON'BLE SHRI JUSTICE GAUTAM CHOURDIYA, PRESIDENT
HON'BLE SHRI GOPAL CHANDRA SHIL, MEMBER
HON'BLE SHRI PRAMOD KUMAR VARMA, MEMBER PRESENT: -
Complainant present in person with Shri Ajeet Bharat, Advocate. Shri Alok Bakshi, Advocate for the opposite parties.
J U DGE M E NT PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT This complaint, under section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act" for short) has been filed by the complainant alleging medical negligence, during treatment of wife of the complainant due to which she died and deficiency in service against the opposite parties, seeking direction to the opposite parties for payment of Dismissed Page 1 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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compensation on various heads like untimely death of wife of the complainant, loss of her company to the complainant and mother‟s affection to the children, deficiency in service, treatment expenditure, mental and physical agony and cost of litigation etc. total Rs.98,23,095/-
(Ninety Eight Lacs Twenty Three Thousand & Ninety Five).
2. Brief facts necessary for disposal of this complaint, as per the complaint are that the complainant is husband of deceased Smt. Nisha Vaishya. The deceased Smt. Nisha Vaishya suddenly fell ill on 30.09.2015 and with the complaint of fever and dry cough she was admitted in Krishna Hospital Korba. She was treated in that Hospital till 02.10.2015 and when no improvement in her condition was seen, in the night of 02.10.2015 the Doctors of that Hospital discharged her for admission in some Higher Centre for treatment. The complainant in hope of better treatment admitted his wife in the Apollo Hospital Bilaspur/ the opposite party No.1 on 03.10.2015, where the opposite party Nos.3 & 4 started treatment but there also no improvement was seen. When the complainant asked Dr. Manoj Rai and Dr. Vijay Kumar Shrivas they assured him that health condition of his wife will be improved very soon and there is nothing to worry about and without any investigation and diagnosis started giving high antibiotics and other medicines due to which at the place of improvement the condition of his wife was deteriorating day by day and she reached to a critical condition, which is outright evidence of deficiency in service on the part of the opposite parties. When within 1-2 days of admission on 03.10.2015 no improvement was seen in the health of the deceased Smt. Nisha Vaishya the opposite parties were required to refer her to some Higher Medical Center but the opposite parties collected Rs.7,000/- from the complainant Dismissed Page 2 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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on the saying that for diagnosis of ailment, blood sample and throat swab (mucus) are to be sent to somewhere else and it was stated that on receipt of test report of blood sample and throat swab (mucus) treatment will be given to the patient as per the report. As the facility of requisite test was not available with the opposite parties and looking to the situation that regarding the ailment of the patient the opposite parties were not aware and sure, which is evident from the information given to the Police by Dr P.K. Panda, Paithlab Services & I/C MS, Apollo Hospital Bilaspur also, they were required to refer the patient to a Higher Hospital and by doing so the life of the patient could be saved.
3. It is further alleged that without any information regarding the disease the opposite parties continued to give expensive, baseless and unnecessary treatment and in this way were playing with the life of the patient. With relate to the treatment on different heads they made the complainant to spent Rs.30-35 thousand per day and this way total Rs.2,51,000/- were spent. Ultimately, on 13.10.2015 at 3:15 am the wife of the complainant died for which the opposite parties are jointly and severally responsible. It was further averred by the complainant that from the death summary issued by the Apollo Hospital it appears that the opposite parties were not confident or sure about the disease of wife of the complainant. Only considering as a suspect case of H1N1 baseless treatment was being given, whereas in the cause of death in death summary such fact was not mentioned. The opposite parties knowingly without receiving blood test report regarding H1N1, gave contrary report and incorrect treatment to the deceased wife of the complainant and acted with gross ignorance and negligence and thereby committed deficiency in service. It is further averred that the deceased wife of the complainant was Dismissed Page 3 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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an Agent of Life Insurance Corporation of India since 2009 and was earning Rs.1,40,000/- p.a. and she died at the age of 30 years and the average life happens to 70 years. Hence, direction to the opposite parties for payment of compensation on the head of loss of income Rs.50,12,905/-, along with compensation for loss of company to the complainant and loss of mother‟s affection to the children, compensation for deficiency in service, mental agony and cost of litigation in all Rs.98,23,095/- is sought.
4. The opposite parties in their joint written version have made preliminary statement that the wife of the complainant Smt. Nisha Vaishya was brought to the Apollo Hospital in the night of 02.10.2015 and after primary check-up she was found to have symptoms of H1 N1 (swine flu). At the time of admission she was suffering from bilateral pneumonia, which is a symptom of H1 N1 (swine flu). H1 N1 (swine flu) is a serious type of transient infectious disease, therefore in this regard clear guidelines were issued by the Government of India in the year 2009 to the effect that if any such patient in any Hospital is admitted who shows symptoms of H1 N1 and is suspected to be suffering H1 N1 (swine flu), then in such situation without waiting for anything, treatment for H1 N1 has to be started and simultaneously samples of throat swab, nasal swab, nasopharyngeal swab have to be taken and sent for examination as soon as possible. It is here noteworthy that for confirmation of swine flu test of throat swab, nasal swab and nasopharyngeal swab is considered the most certified test. It is also clarify in the written version that as soon as the patient was admitted in the Apollo Hospital, she was given medicines for H1 N1 on the same day and per the prescribed course of the disease. As per Guidelines of the Central Government after collecting samples for H1 N1 (swine flu), the concerned Hospital would submit it to Dismissed Page 4 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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the local/nearest Medical College, which was to be sent to New Delhi for examination. Following the above instructions, the samples of the patient Smt. Nisha Vaishya were first sent to Chhattisgarh Institute of Medical Science (CIMS), which was sent to Raipur Medical College and from there the samples were sent to New Delhi. As per the guidelines of the Government of India the H1 N1 (swine flu) being a serious type of transient infectious disease, the patient Smt. Nisha Vaishya showed symptoms of H1 N1 and suspected to be suffering H1 N1 (swine flu), immediately medicines of that disease were given as per the Chart enclosed with the written version, from which it is clearly appears that along with other medicines anti-flu tablets were started from 03.10.2015. No negligence in the treatment of wife of the complainant was committed and whatever medicines and treatment given her were as per the international standard procedure of medical science.
5. So far as final report of samples sent for confirmation of H1 N1 is concerned, during the period when the patient was treated, lots of samples were being sent to the Government Laboratory at New Delhi and looking to the seriousness of the situation, the arrangement which became prevalent was that intimation of report was being given on telephone to the concerned Hospital and thereafter the report was being sent through email. It is specifically stated that report of wife of the patient Smt. Nisha Vaishya was informed on telephone but email report was never received. In this regard the Hospital Management contacted the competent officers and requested but, the report is yet to be received. It is further averred that the complainant has failed to state as to how the treatment given by the opposite parties were against the standard medical procedure. Along with the complaint no such opinion of any Doctor or Expert is enclosed Dismissed Page 5 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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which shows that the treatment given by the opposite parties were wrong or during the treatment any negligence was committed. It is further averred that as per the guidelines of the Central Government, on the basis of symptoms only it was compulsory to start treatment of the suspected patient and samples were to be sent for examination and it is further clarified that if the report comes negative of any patient to whom medicines of swine flu was given, then also there was no adverse effect of such medicines in the patient‟s body. It is further averred that in the night of 02.10.2015 the patient was brought to the hospital and as per guidelines as above her treatment was started. Anti-flu, I V Antibiotics, I V fluids and other supporting drugs were given. Oxygen support and NIV support was given. During treatment she remained hypoxic and radiologically her condition was being deteriorating, so she was intubated and put on ventilator and necessary anti-biotic were also given. On 13.10.2015 she developed bradycardia and thereafter due to cardiac arrest on 13.10.2015 at 03.05 a.m. she was declared dead. The opposite parties further averred that in the treatment of the patient Smt. Nisha Vaishya, no negligence, ignorance or deficiency was committed.
6. It is further averred that the complainant while filing this complaint has concealed the fact that he filed Criminal Complaint under Section 420, 500/34 against the Directors of Apollo Hospital, Dr. Manoj Rai and Dr. Vijay Kumar Shrivas before the Judicial Magistrate First Class, Korba and the said complaint was dismissed thereafter this complaint has been filed. The opposite parties have prayed that on the basis above preliminary objections itself, the complaint is liable to be dismissed. In the parawise reply the opposite parties have refuted the adverse allegations leveled against them and submitted that the opposite part No.1 the Apollo Dismissed Page 6 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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Hospital is a High Standard and well equipped with high standard facilities Hospital approved by N.A.B.H. which is giving its continuous services since 2001. So far as the other opposite parties are concerned they are also renowned medical specialists and senior consultants of their field. Considering the condition of the patient, she was provided the best treatment by the opposite parties as soon as possible, for which the Hospital Management has charged the same fee as already fixed. Thus, on the above grounds the opposite parties have refuted the allegations of committing any negligence, deficiency, ignorance or deficiency in service in treatment of the deceased Smt. Nisha Vaishya and prayed that they are not liable to pay any compensation to the complainant and this complaint being baseless is liable to be dismissed.
7. In support of the complaint the complainant has filed his affidavit, and his another affidavit by way of evidence as well as that of Smt. Surabhi Vaishya W/o. Shri Shivdhar Vaishya and one Vishal Poddar S/o. Shri Rajkishor Poddar. Smt. Surabhi Vaishya happens to be the sister-in- law (Jethani) and Vishal Poddar is younger brother of the deceased. The complainant has also filed copy of documents as per list which includes treatment record of Krishna Hospital, Korba and that of Apollo Hospital Bilsapur, Bills, death certificate, legal notice etc. Whereas the opposite parties have filed affidavit of Dr. Manoj Rai in support of the written version, his evidence by way of affidavit and that of Dr. Vijay Kumar Shrivas. They have also filed documents as per list which includes Guideline issued by Government of India i.e. CD Alert Monthly Newsletter of National Centre for Disease Control, Directorate General of Health Services, Government of India, Pandemic Influenza A (H1N1) 2009 (updated January 2015) marked as Annexure OP-1. Copy of documents Dismissed Page 7 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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regarding deposit of patient Nisha Vaishya‟s throat swab, nasal swab, nasopharyngeal swab samples in the CIMS Hospital Bilaspur and copy of correspondences made with Medical College Raipur regarding report of blood test other samples as above. Documents regarding sample collection of Smt. Nisha Vaishya, Chart of medicines given to the patient from 03.10.2015 to 13.10.2015 and copy of order of Judicial Magistrate Korba in case No.4603/17 dated 08.05.2015. Learned counsel for the opposite parties has cross-examined the witnesses of the complainant on their affidavit, by way of questionnaire, which are also available on record.
8. We have heard arguments advanced by both parties and perused the affidavits, cross-examination by way of questionnaire of witnesses of the complainant and documents filed by both parties. We have also gone through the written arguments and case-laws submitted by both parties.
9. Learned counsel for the complainant before us has repeated the facts stated in complaint and argued that report of the samples were not received and in absence of such report without any confirmation of H1N1 wrong treatment was given along with high anti-biotic which caused deterioration of condition of the patient. In fact the report is continuously being demanded by the complainant but is not provided. It is further argued that oxygen level of the patient was continuously going down but neither she was put on ventilation nor was referred to any other Higher Center, when the opposite parties were not capable of management of health condition of the patient and they could not provide oxygen support to the patient in need. Learned counsel for the complainant has also pointed out that in the Master Chart, Annexure C-31, Annexure C-31/1, Annexure C-31/3 & Annexure C-31/3, which was filled when the patient Dismissed Page 8 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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was in ICU, it was mentioned that the patient was given treatment on 03.09.2015, whereas on that date the deceased Smt. Nisha Vaishya was not at all admitted in the hospital of the opposite parties. In that document it is also mentioned that the patient was H1N1 positive, whereas the report of samples of the patient has not been received yet.
10. Learned counsel for the opposite parties has also repeated the facts stated in their written version and has argued that the complainant has failed to produce any cogent evidence either by way of expert opinion or any medical literature to show that any wrong or negligent treatment was given by the opposite parties to the wife of the complainant. He has vehemently argued that all the treatment was given as per the international standard of medical procedure/protocol and in the treatment of the wife of the complainant the guidelines issued by the Government of India with relate to treatment of H1N1 (Swine Flu) were strictly followed. Hence the opposite parties have not committed any medical negligence or deficiency in service in treatment of the deceased wife of the complainant. He prayed that the complaint be dismissed.
11. We have considered the above arguments advanced by both parties. The first allegation of learned counsel for the complainant is that the report of samples of throat swab, nasal swab, nasopharyngeal swab were never received and without any confirmation report of H1N1 the patient was treated for the same, high antibiotic medicines were given to the patient due to which her condition worsened and ultimately she died. In support of this allegation the learned counsel for the complainant has only based on the version of the opposite parties made in the written version to the effect that they treated the wife of the complainant as Dismissed Page 9 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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suspect of swine flu and have admitted that the samples were sent for test regarding swine flu but such report has not been received. Except this, there is nothing on record on the basis of which it can be said that any wrong treatment was given or any negligence was committed in treatment of the wife of the complainant. In this regard, learned counsel for the opposite parties has vehemently argued that all the treatment was given as per the international standard of medical procedure/protocol and in the treatment of wife of the complainant the guidelines issued by the Government of India with relate to treatment of H1N1 (Swine Flu) were strictly followed. He has filed copy of the such guideline as Annexure OP-1 and another relevant documents filed by the opposite parties is Annexure OP-5, which is "Clinical & Epidemiological Data for H1N1 Influenza", which appears to be filled at the time of sample collection on 03.10.2015. „Name of Doctor/ Health Personnel‟ is mentioned as Dr. Manoj Rai, „Date of onset of illness‟ is mentioned as 30.09.2015 and in the „clinical signs and symptoms‟ fever axilla > 38ºC is ticked as „Yes‟, cough „Yes‟, sore throat „Yes‟, Shortness of breath/difficulty in breathing „Yes‟ and in treatment taken „Tab. Oseltamivir 150 mg BD @ 8 am" is mentioned. In the guidelines issued by the Government of India under the head "Management of Suspected Patients of Influenza A H1N1" the suspects of H1N1 have been categorized in three categories as under : -
"MANAGEMENT OF SUSPECTED PATIENTS OF INFLUENZA A H1N1 In order to prevent and contain outbreak of Influenza A H1N1 virus for screening, testing and isolation following guidelines (issued by the Govt. of India) are to be followed:
At first, all individuals seeking consultations for flu like symptoms should be screened at designated healthcare facilities or examined by a doctor and these will be categorized as under:
Category- A:
Patients with mild fever plus cough / sore throat with or without body ache, headache, diarrhoea and vomiting will be categorised as Category-A. They do not require Oseltamivir and should be treated for the symptoms mentioned above. The patients should be monitored for their progress and reassessed at 24 to 48 hours by the doctor.Dismissed Page 10 of 22
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No testing of the patient for H1N1 is required. Patients should confine themselves at home and avoid mixing up with public and high risk members in the family.
Category-B:
In addition to all the signs and symptoms mentioned under Category-A, if the patient has high grade fever and severe sore throat, he/she may require home isolation and Oseltamivir;
In addition to all the signs and symptoms mentioned under Category-A, individuals having one or more of the following high risk conditions shall be treated with Oseltamivir:
Children less than 5 years old;
Pregnant women;
Persons aged 65 years or older;
Patients with lung diseases, heart disease, liver disease, kidney disease, blood disorders, diabetes, neurological disorders, cancer and HIV/ AIDS; Patients on long term cortisone therapy. No tests for H1N1 are required for Category-B (i) and (ii). All patients of Category-B (i) and (ii) should confine themselves at home and avoid mixing with public and high risk members in the family.
Category-C:
In addition to the above signs and symptoms of Category-A and B, if the patient has one or more of the following:
Breathlessness, chest pain, drowsiness, fall in blood pressure, sputum mixed with blood, bluish discolouration of nails; Irritability among small children, refusal to accept feed; Worsening of underlying chronic conditions. All these patients mentioned above in Category-C require testing, immediate hospitalization and treatment including Oseltamivir."
From the above two documents it is abundantly clear that the deceased wife of the complainant Smt. Nisha Vaishya was suspect of H1N1 of Category-C, as she was suffering shortness of breath/difficulty in breathing with fever more than 38ºC, cough and sore throat and as per the management guidelines the patients of Category-C required testing, immediate hospitalization and treatment including Oseltamivir. Even the Oseltamivir medicine is prescribed for all the three categories of the patients.
12. In support of the allegation that only on the basis suspected symptoms high anti-biotic were given to the patient nothing has been placed on record as to which high anti-biotic was given and how such Dismissed Page 11 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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medicines caused death of the patient. In reply to Question No.19, put before the complainant in his cross-examination that whether the complainant has produced any document regarding effects of Oseltamivir or Zanamivir along with the complaint or with his affidavit, the complainant has replied that the opposite parties themselves have produced some documents in support of their written version, in which there is mention regarding the above medicines. In Question No.14 & 15 it was asked to the complainant as to on what basis he has alleged that the treatment given to his wife was not as per the standard level/ standard medical procedure and as to how he has alleged that the treatment given to his wife was baseless. The complainant has replied that only on the basis of presumptions and doubts his wife was treated and high anti dose/ anti-biotic were given. This is reply there is nothing specifically stated as to which medicine given to the patient was high anti-dose / anti- biotic which tents the patient to death or caused her death is stated. From the above guidelines and symptoms of the patient recorded at the time of collection of samples on 03.10.2015 clearly appears that the treatment given to the patient was as per the prescribed guidelines by the Government of India. In absence of any specific documents, expert opinion or medical literature which can prove that the guidelines were violated in any manner by the opposite parties it cannot be held that any negligence, ignorance or deficiency was committed by the opposite parties in treatment of deceased wife of the complainant.
13. In this regard while considering the issue of medical negligence the Hon‟ble Apex Court in its judgements in Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors., I (2010) CPJ 29 (SC), in Para No.94 has settled the principle to determine and decide the Dismissed Page 12 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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medical negligence cases, after scrutiny of leading cases of medical negligence in our country as well as other countries especially United Kingdom as under : -
"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 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 is 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.Dismissed Page 13 of 22
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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 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 the Para No.90 of the above cited judgement, the Hon‟ble Supreme Court has also discussed it‟s previous judgement in the case of the Jacob Mathew Vs. State of Punjab & Anr. III (2005) CPJ 9 (SC); and as under : -
"90. In Jacob Mathew‟s case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: „duty‟, „breach‟ and „resulting damage‟.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a Dismissed Page 14 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) 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."
Hon‟ble National Commission in its recent judgement dated 22nd December 2022 in Consumer Case No.361 of 2001, Smt. Mamta Agarwal & Ors. Vs. Bombay Hospital Medical Research Centre & Ors. citing the recent judgements of Hon‟ble Apex Court has held in paragraph No.22 as under : -
"22. The Hon‟ble Supreme Court in the case S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another[8] held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. Recently in the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. Vs Dr. MA Methusethupathi & Ors.[9]. It was observed that:
"it clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another."
We have also gone through the judgements of Hon‟ble Apex Court in the case of S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another, (2019) 2 SCC 282; Dr. (Mrs.)Chanda Rani Akhouri & Ors. Vs Dr. MA Methusethupathi & Ors. 2022 LiveLaw (SC) 391 cited by the Hon‟ble National Commission in the above cited judgements. This commission also in its recent judgements dated 28.04.2023 in the matter between Dr. Dismissed Page 15 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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Anand Rai (Dentist) Vs. Mahinder M. Singh & Anr. in Appeal No.FA/22/164; Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors., Appeal No.FA/18/629 order dated 03.03.2023, and in a catena of judgements, was of the same view in respectful concurrence with the above principle laid down by the Hon‟ble Apex Court and Hon‟ble National Commission in the above judgements. In the instant case the complainant has failed to adduce any cogent evidence to prove his case either by way of expert opinion or by medical literature, whereas the opposite parties have filed the guideline issued by the Government of India to prove that all the treatment, other medical protocols, procedures and action regarding sample collection for confirmation test of H1N1 was done as per the guidelines issued by the Government of India.
14. So far as allegation of the complainant that oxygen level of the patient was continuously going down but neither she was put on ventilation nor was referred to any other Higher Center especially when the opposite parties were not capable of management of health condition of the patient and they could not provide oxygen support to the patient in need is concerned, in this regard in the Death Summary, Annexure C-12, itself, which is vehemently relied by the complainant himself in leveling allegation that the opposite parties were not confident or sure regarding the ailment of the patient and only as a suspect of H1N1 she was treated, it is mentioned in detail at page No.2, marked as Annexure C-12/2 under the heading „Course In The Hospital‟ as under : -
"Mrs. Nisha Vaishy, 31 Y/F, presented with fever, bodyache for around 4-5 days, cough, shortness of breath for about 2 days. She was admitted and evaluated.
On admission she was dyspenic, hypoxic and tachycardiac. Her CBC was normal. QBC for MP was negative. RFT was normal. LFT showed raised SGOT, SGPT. Chest X-Ray was suggestive of ARDS.Dismissed Page 16 of 22
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Echo showed normal study. Throat swab for H1N1 was sent and was found to be positive. She was started on antiflu, IV antibiotics, IV fluids and other supportive drugs. She was kept on oxygen & NIV support. During her stay she remained hypoxic & continued to worsened radiologically. Her hypoxic failure worsened and she was intubated and ventilated. She requires high ventilator support and later developed fever and shock. Her antibiotics were revised and vasopressors started. Patient did not respond well and her general condition continue to deteriorate. On 13-10-15 she developed bradycardia followed by cardiac arrest. She was declared dead on 13- 10-15 at 3:05 AM."
From the above summary mentioned as course in the hospital, it clearly appears that the patient was given oxygen support and ventilation support as and when needed. The Hospital was well equipped with all necessary facilities which was necessary to manage the condition of the patient. The above facts have also been stated by both the Doctors Dr. Manoj Rai and Dr. Vijay Kumar Shrivas in their affidavit and in the written version also the same facts have been stated which is supported by affidavit of Dr. Manoj Rai. In the cross-examination of the complainant, in reply to Question No.26, to the effect that as to on what basis he has stated that the treatment given to his wife was not as per the international standard and not as per established procedure by medical science, he has stated that treatment of his wife was done on the basis of doubts and symptoms, whereas the opposite party Hospital is a Hospital of International Standard, which is having their branches in other big cities of India also. On the one hand the complainant is alleging that the opposite party Hospital was not having proper facility and should have referred the patient to another higher center and on the other hand at the same time is saying the opposite party Hospital is a Hospital of International Standard. Thus, in this allegation of the complainant also we do not find any substance and we are of the considered view that as and when needed the deceased wife of the complainant was given proper treatment, oxygen and ventilation support.
Dismissed Page 17 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
CC/17/69 Vs. 15/05/2023 Apollo Hospital Bilaspur & Ors.
15. In the written arguments as well as during the oral final arguments also the learned counsel has argued that in the Master Chart, Annexure C- 31, Annexure C-31/1, Annexure C-31/3 & Annexure C-31/3, which was filled when the patient was in ICU, it was mentioned that the patient was given treatment on 03.09.2015, whereas on that date the deceased Smt. Nisha Vaishya was not at all admitted in the hospital of the opposite parties it shows negligence on the part of the opposite parties. On that date who was treated and for what ailment is not clear. In that document it has also been mentioned that H1N1 report of wife of the complainant was positive, whereas no such report has been received till date.
16. In fact this fact was for the first time stated by the complainant in reply to a question put to him in his cross-examination. The question No.18 was asked to the effect that has he produced any document before this Commission from which it can be proved that any mistake was committed in treatment of his wife. This question was replied by the complainant saying that he has produced all the documents which proves negligence and deficiency in service on the part of the opposite parties. He has filed all the documents annexed with his affidavit. He has also filed Master Chart prepared while his wife remained admitted in the ICU in which he has pointed out the above fact. In this regard Annexure OP-5, which is "Clinical & Epidemiological Data for H1N1 Influenza" is very important which appears to be filled at the time of sample collection on 03.10.2015. Name of Doctor/ Health Personnel is mentioned as Dr. Manoj Rai, „Date of onset of illness‟ is mentioned as 30.09.2015. In the Master Chart, Annexure C-31 itself at the top „Date 3/9/15‟ is mentioned, but just below on the same page date of admission i.e. „D.O. Admission‟ is mentioned as „3/10/15‟ and „No. of days in ICU‟ is mentioned as „(D1)‟. Dismissed Page 18 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
CC/17/69 Vs. 15/05/2023 Apollo Hospital Bilaspur & Ors.
This allegation of the complainant also has no force looking to the dates mentioned in all the other documents such as Admission Form, Annexure C-24, Admission Slip Annexure C-25, Drug Chart, Annexure C-27 and also filed as Annexure OP-16 and the most important document which is vehemently relied by the complainant himself i.e. "Death Summary"
Annexure C-12, in which the date of admission is mentioned as ‟03-Oct-
2015‟. Therefore, this allegation of the complainant also has no legs to stand and is not sustainable.
17. So far as the allegation of the complainant that for the test of the samples collected of the deceased wife of the complainant fee of Rs.7,000/- was collected and no report was given even after demand is concerned, the opposite parties in their written version have explained in detail that during the period when the patient was treated, lots of samples were being sent to the Government Laboratory at New Delhi and looking to the seriousness of the situation, the arrangement which became prevalent was that intimation of report was being given on telephone to the concerned Hospital and thereafter the report was being sent through email. The opposite parties have made there several efforts which are evident from the copy of correspondences filed by them, but if due to the reasons beyond their control the report could not be procured or sent by the concerning authority, then the opposite parties cannot be faulted at.
18. Learned counsel for the complainant in support of his case has relied upon judgement of Hon‟ble Apext Court in the case of Malay Kumar Ganguly & Another Vs. Dr. Sukumar Mukherjee & Others, (2009) 9 SCC 221; Smt. Savita Garg Vs. The Director, National Heart Institute, (2004) 8 SCC 5; Dr. Balram Prasad Vs. Dr. Kunal Saha & Ors., Dismissed Page 19 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
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(2014) 1 SCC 384; Maharaja Agrasen Hospital & Ors. Vs. Master Rishabh Sharma & Ors, (2020) 6 SCC 501 and judgements of Hon‟ble National Commission in the case of Dr. Mangla L. Paradkar & anr. Vs. Shailendra Singh S/o. Shri Raghuraj, 2011 3 CPJ (NC) 64; Smt. Divya Sood Vs. Ms. Gurdeep Kaur Bhuhi, Revision Petition No.3467 of 2006 decided on 27.11.2006; Nanjappa Hospital and Anr. Vs. P.S. Shylaja, 2011 3 CPJ (NC); Dr. Rajesh Badyal & Anr. Vs. Pushp Lata & 3 Ors., Revision Petition No.3821 of 2012 order dated 24.01.2020. But the facts involved in all the above cases being different from the instant case, they can safely be distinguished and are not applicable in the facts of the present case and are of no help to the case of the complainant especially in view of the above cited judgements of Hon‟ble National Commission in Smt. Mamta Agarwal (supra) citing the judgements of Hon‟ble Apex Court in S. K. Jhunjhunwala (supra) and Dr. (Mrs.)Chanda Rani Akhouri (supra).
Learned counsel for the opposite party in support of his case has placed reliance upon the judgement of Hon‟ble Apex Court in the case of Dr. Harish Kumar Khurana Vs. Joginder Singh & Others, (2021) 10 SCC 291; Kusum Sharma (Supra) and judgement of this Commission in the case of Smt. Purnima Pandey (supra) case. Of course the principle laid down by the Hon‟ble Apex Court in Kusum Sharma (Supra) and Smt. Mamta Agarwal (supra); S. K. Jhunjhunwala (supra) and Dr. (Mrs.)Chanda Rani Akhouri (supra) are squarely applicable in the facts of the present and a medical practitioner cannot be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In fact in the instant case the opposite parties have followed the guideline issued by the Government of India regarding H1N1, as discussed above. Dismissed Page 20 of 22 Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
CC/17/69 Vs. 15/05/2023 Apollo Hospital Bilaspur & Ors.
19. Therefore, for the foregoing discussion on the issues raised by the complainant the findings of this Commission are as under : -
i. The first allegation of learned counsel for the complainant is that the report of samples of throat swab, nasal swab, nasopharyngeal swab were never received and without any confirmation report of H1N1 the patient was treated for the same, high antibiotic medicines were given to the patient due to which her condition worsened and ultimately she died.
Finding: In absence of any specific documents, expert opinion or medical literature which can prove that the guidelines were violated in any manner by the opposite parties it cannot be held that any negligence, ignorance or deficiency was committed by the opposite parties in treatment of deceased wife of the complainant.
ii. Oxygen level of the patient was continuously going down but neither she was put on ventilation nor was referred to any other Higher Center especially when the opposite parties were not capable of management of health condition of the patient and they could not provide oxygen support to the patient in need.
Finding: We are of the considered view that as and when needed the deceased wife of the complainant was given proper treatment, oxygen and ventilation support.
iii. In the Master Chart, Annexure C-31, Annexure C-31/1, Annexure C-
31/3 & Annexure C-31/3, which was filled when the patient was in ICU, it was mentioned that the patient was given treatment on 03.09.2015, whereas on that date the deceased Smt. Nisha Vaishya was not at all admitted in the hospital of the opposite parties it shows negligence on the part of the opposite parties.
Finding: This allegation of the complainant is also has no force looking to the dates mentioned in all the other documents such as Admission Form, Annexure C-24, Admission Slip Annexure C- 25, Drug Chart, Annexure C-27 and also filed as Annexure OP- 16 and the most important document which is vehemently relied by the complainant himself i.e. "Death Summary"
Annexure C-12, in which the date of admission is mentioned as ‟03-Oct-2015‟. Therefore, this allegation of the complainant also has no legs to stand and is not sustainable.
iv. For the test of the samples collected of the deceased wife of the complainant fee of Rs.7,000/- was collected and no report was given even after demand.
Finding: The opposite parties have made there several efforts which are evident from the copy of correspondences filed by them, but if due to the reasons beyond their control the report could not be procured or sent by the concerning authority, then the opposite parties cannot be faulted at.Dismissed Page 21 of 22
Complaint No.: Girdhar Kumar Vaishya Date of Pronouncement:
CC/17/69 Vs. 15/05/2023 Apollo Hospital Bilaspur & Ors.
Accordingly, with the above findings on the objections raised by the complainant, we do not find any substance in this compliant, the same being devoid of any merits and is dismissed with no order as to cost.
(Justice Gautam Chourdiya) (Gopal Chandra Shil) (Pramod Kumar Varma)
President Member Member
/05/2023 /05/2023 /05/2023
Pronounced On: 15th May 2023
Dismissed Page 22 of 22