State Consumer Disputes Redressal Commission
Prem Singh Rathi vs Medical Superintendent, Sir Ganga Ram ... on 20 February, 2009
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: 20-02-2009 Complaint Case No. 313/2001 Shri Prem Singh Rathi, S/o. Late Shri Lal Chand Rathi, R/o. House No. 552, Sector-6, Bahadurgarh, District Jhajjar, Haryana. .. Complainant Versus 1. Medical Superintendent, Sir Ganga Ram Hospital, New Delhi 110060. 2. Dr. Subhash Gupta, Sir Ganga Ram Hospital, New Delhi 110060. 3. Dr. Somira Nandy, Sir Ganga Ram Hospital, New Delhi 110060. 4. Dr. Alok Johri, Sir Ganga Ram Hospital, New Delhi 110060. . Opposite Parties CORAM JUSTICE J.D. KAPOOR, PRESIDENT MS. RUMNITA MITTAL, 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 (ORAL)
1. On the allegations of medical negligence and deficiency in service on the part of the Opposite Party (O.P in short) and its doctors resulting in the death of his wife the complainant has filed the present complaint claiming a compensation of Rs. Rs.20,00,000/-
for the loss of life of his wife due to negligence of the OPs.
2. Brief facts of the case as alleged by the complainant in his complaint are that on 9-4-2000 the complaint got his wife Smt. Muni Devi, aged about 40 years, admitted in the hospital of OP-1, and was examined by Dr. Subhash Gupta, OP-2 and advised for operation immediately for which a total expense of Rs. 60,000/- was to be incurred. The complainant deposited the amount and the operation was conducted on 12-04-2000. However, on 13-04-2000 she developed some complications and the doctors opined that since some loop was left unstitched inside and patient was not responding well to the treatment causing the complications and therefore another operation would have to be done. The second surgery was done on 16-04-2000 but the patients condition started deteriorating and on 18-05-2000 there was excess bleeding from the operated part which was brought to the notice of the OPs. OP 2 and 3 asked the complainant to arrange for four units of blood which was arranged but the patient died on 19-05-2000.
According to the complainant his wife died due to negligence on the part of the OP hospital and its doctors. He had incurred about Rs. 3.00 Lac on the treatment and operation at the OP Hospital. The complainant sent a legal notice dated 14-11-2000 to the OPs seeking compensation which was not even replied to. Feeling aggrieved the complainant filed the present complaint seeking the aforementioned relief against the OPs.
3. However, in its reply the OP Hospital came up with the defence that there was no negligence or deficiency in service on the part of the OP Hospital or its doctors in treating the patient. The patient was admitted with diagnosis of Pancreatic Duodenal Cancer as a result of which she suffered from surgical obstructive jaundice and bleeding from tumor causing anemia. The best possible treatment consistent with the standard medical practices prescribed world over was administered to the patient and was treated with utmost care and skill. The alternative therapy like stenting to relieve jaundice was explained to the relatives of the patient including the complainant, however, since the patient was bleeding from the tumor surgery was urgent and inevitable. The operation required removal of part of stomach, duodenum, part of bile duct and gall bladder, part of pancreas and proximal jejunum and the reconstruction is done by joining the pancreatic remnant to a roux loop of jejunum. However, no loop was left inside unstitched as alleged by the complainant. After the operation the patient was kept in the ICU and monitored closely. But on the third post-operative day the patient became tachycardiac and tachypnoeic and there was evidence of bleeding from the intestine which was explained to the complainant and consent was obtained for another operation. On examination the pancreatic loop was found to be gangrenous, which as per the OP happens after intestinal surgery loops of bowl may turn gangrenous and this happens mainly due to peritoneal defects, adhesions, twist or clotting of venous blood flow, and a complete pancreatectomy was done to remove the gangrenous roux loop. The patient made satisfactory recovery from the second surgery and was shifted to ward and was making slow but steady recovery. However, on 18-05-2000, after thirty two days of the operation, the patient developed bleeding from the main wounds suggestive of intra-abdominal blood vessel erosion, which is secondary haemorrhage and consequence of intra-abdominal infection.
Thereafter the patient was again transferred to ICU and another operation was planned which required a lot of blood as the patient was bleeding copiously and the attendants were asked to arrange blood. However, the patient developed intra-abdominal collection of pus and fluid discharge and massive secondary haemorrhage and the patient expired on 19-05-2000. As per the OPs the patient died from Pancreaticoduodenal cancer for which Pancreaticoduodenectomy (Whipplers Procedure) was conducted and this surgery carries significant mortality and all over the world the morbidity rate goes even upto 70%.
4. Both the parties have filed their respective affidavits in evidence in respect of their claims and contentions and the same are on record. We have heard the counsel for the parties at length and have given careful consideration to the documents on record.
5. Aforesaid conspectus of rival claims and contentions of the parties boil down to a point whether the OP-1 hospital was guilty of negligence for having left a loop unstitched in the second operation between 12th April and 16th April, if so, whether it was the solitary cause of death of the patient or no?.
6. On the concept of medical negligence the following criteria have been drawn out by us, culled out from various decisions of the Supreme Court and English Courts, for adjudicating cases involving allegations of medical negligence:-
(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?
7. All the doctors who attended the patient are highly qualified and skilled. The line of treatment and the operation conducted by them were as per well established and accepted practice and procedure. It is the second operation which is being alleged as botched surgery. It was conducted on 16-4-2000 where after the deceased was shifted from general ward to ICU at regular intervals and she was discharged. It was only on 18-05-2000, i.e. after almost two months or so, that the condition of the deceased worsened and excessive bleeding started from the operated part. She was taken to the OP Hospital where she was examined and as she was having excessive bleeding the relatives were asked to arrange for four units of blood. However, after transfusion of blood she could not survive and ultimately died on 19-05-2000.
8. There is no material on record, or any observations of any doctor whosoever, either in the discharge summary or subsequently, that any loop was left unstitched while performing the first operation. Had it been so, the second operation conducted on 16-04-2000 would not have been successful. It was after about 32 days of the second operation that the deceased started bleeding profusely.
9. The main allegation of the complainant that they were never advised or told about the operation risk and as a result they had to incur about Rs. 60,000/- extra expenses and within a span of three days the second operation was performed. The plea of the complainant that the second operation was conducted partly to rectify the mistake committed in the first operation wherein a loop was left unstitched is difficult to accept. If it was so, then the second operation which was successful would not have resulted in excessive bleeding. It was only after 32 days of the surgery that the patient developed excessive bleeding suggestive of intra abdominal blood vessel erosion, which is secondary hemorrhage. The patient was transferred to ICU where an emergency operation was planned and given lot of blood and blood components.
The patient died from intra-abdominal collection of pus and fluid discharge and massive secondary haemorrhage.
10. AS per the OPs this surgery carries a risk of mortality and the morbidity rate all over the world is about 70%. In our view, which has been confirmed by the Supreme Court in several case and recently also, unless and until the doctors are so negligent that the line of treatment was not as per established practice and procedure or the operation done by them was done in such a manner which shows negligence per-se the Court should be circumspect in holding the doctors guilty of medical negligence.
11. In the instant case, even if we assume that the patient had to undergo a second operation within four days of the first operation, on the presumption that, may be, even if it was not a corrective surgery, but was necessitated due to some complication or problem arising from the first operation, the complainant could be compensated only for the expenses charged by the OP hospital for the first operation.
12. So far as the liability of OP 2 to 4 is concerned, we have taken a view that whenever a patient lands in the hospital or nursing home his direct relationship is with the hospital or nursing home and not with the doctor whose services are availed by the nursing home or hospital or Centre as the entire consideration is received by the concerned hospital, centre or nursing home and the doctor is in turn paid a nominal amount by the nursing home or hospital for the services he render to them. Therefore, any act of omission or negligence of doctors who are working in the hospital or centre, the hospital or centre alone is liable and not the individual doctor. However, the hospital, nursing home or centre can take independent action against the erring doctor if he is found to be negligent. The only requirement for establishing the relationship of consumer and service provider is as to whose services have been hired or availed of for the treatment directly. The hospitals and centre charge the patient for so many compendiums of services which a patient gets and that is why for any kind of deficiency in service, administrative or of any other kind, the hospital or centre alone is liable.
13. However, in the present case, we cannot be oblivious to the fact that the patient was suffering from pancreatic cancer and the doctors of the OP hospital tried to save the patient and did their level best. Therefore, the subsequent complication or bleeding, arising after 32 days of the second operation, being due to the spread of the disease cannot be ruled out.
14. In the given facts and circumstances, we do not find any medical negligence either on the part of the OP Hospital or its doctors and dismiss the complaint. Mere death of a patient suffering from such a severe and dreaded type of cancer cannot be a ground for inferring negligence. Negligence has to be inferred on the criteria whether the doctor was negligent or not that should speak for itself or whether the line of treatment was altogether against the established practice and procedure or whether any negligence or delay was caused in treating the patient that resulted in his death.
15. Complaint stands disposed of in aforesaid terms.
16. Copy of Order, as per statutory requirement be forwarded to the parties and thereafter the file be consigned to record.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK