State Consumer Disputes Redressal Commission
Ishwar Prasad Verma vs All India Institute Of Medical Sciences on 12 November, 2007
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: 12 -11-2007 Complaint Case No. C-84/1998 Shri Ishwar Prasad Verma, Complainant /o Late sh. Charni, Through 168/2, Ali Ganj, Kotla Mubarakpur, Dr. Vijendra Mahandiyan, New Delhi. Advocate. Versus 1. All India Institute of Medical Sciences, Opposite Party No.1, New Delhi. Through Mr. Sudhir Gupta, Advocate. 2. Dr. Lalit Kumar, Opposite Party No.2 Consultant Incharge, Department of Pathology (Hematology), I.R.C.H., AIIMS, New Delhi. 3. Dr. Vertika Mittal, Opposite Party No.3 Resident Incharge, I.R.C.H. Wing, AIIMS, New Delhi. 4. Dr. Das, Opposite Party No. 4 Surgeon, Through I.R.C.H. Wing, AIIMS, Mr. Sanjay Jain, New Delhi. Advocate. 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, PRESIDENT (ORAL) Complainant has claimed compensation of Rs. 10 lacs alleging negligence and deficiency in service in the treatment of his daughter Mansi who died due to negligence of OP 2 to 4.
2. Allegations of the complainant, who is the father of deceased Mansi, who died at the fruitful age of 14 is that he got a test done upon her at Sai Baba Charitable Trust and on4.12.97 he took her to OP No. 1-hospital for treatment as advised by ENT OPD doctor and OP NO.3-Dr. Vartika checked her and advised innumerable tests in the name of treatment procedure, twice blood tests, neck biopsy, Ultra sound and so-called Bone-marrow test.
3. That on 15.12.97 the doctors operating for neck Biopsy deferred the Biopsy test for another day after improvement of the blood platelet count. On 16th Dec. 1997 in the early hours of morning the complainant took his deceased daughter again to the OP-hospital, where he explained his daughters weak physical state, but OP no. 2 insisted on getting the so called deadly bone marrow test done quickly.
4. That on 16.12.97 OP No.2-Dr. Lalit Kumar told the complainant that his daughter was suffering from blood cancer. On 16.12.97 the OP no. 2 conducted the bone-marrow test upon the deceased and OP No.4-Dr. Das did not administer anesthesia of any kind causing utmost pain to her. Dr. Das gave complainants daughter an injection in her thumb. She succumbed to the pains the same day in the night i.e. intervening night of 16/17 December at about 1.00 am. Obviously the death of deceased took place due to utter negligence of OPs.
Complainant has sought compensation of Rs. 10 lacs with 18% interest.
5. While denying any negligence in the treatment or deficiency in service OP 1 & 2 have come up with the following version:
(i) That the patient was admitted out of turn on 4.12.1997, keeping in view her tender age and condition.
(ii) That blood samples were taken only once on 8.12.1997 and not twice as alleged.
(iii) That without the bone marrow test the exact nature of cancer could not have been identified and definite line of treatment could not have been adopted.
(iv) That the Doctors, as per the usual practice conducted bone marrow under local anesthesia.
(v) That the treatment of cancer is very toxic and cannot be given until a proper and firm diagnosis is established.
(vi) That the patient did not report to the doctors on 11.12.1997 in OPD and thus was herself negligent and had been taking his own decisions, contrary to the medical advice.
6. OP 4 denied any negligence in conducing the bone-marrow biopsy and averred as under:
(a) That the bone marrow biopsy examination is generally done from the hip bone (iliac crest), using disposable biopsy needle, after giving intramuscular local anesthesia injection at the same site. OP No. 4 gave the local anesthesia injection to the patient after cleaning the area thoroughly.
(b) That after the bone marrow procedure, generally the finger prick of the patient is done for peripheral blood examination, which was done on the patient with a sterile disposable needle.
(c) That the OP followed the procedure in good faith, without any malafide intention or negligence to the patient.
(d) It is wrong and denied that the OP did not pay any attention to the blood reports of the patient. Low hemoglobin and /or platelet could and do not hamper the bone marrow test.
7. At the same time OPs have also placed reliance upon the report of the Prof. Vinod Kochupillai, a Committee constituted by the PMO to whom a complaint was made. The report of the Committee is as under:-
MANISHA, 14 YEAR OLD FEMALE (IRCH NO. 47874)
1.
Case Summary : (Information obtained from case record and Dr. Lali Kumar).
Fourteen year old student reported at IRCH on 4-12-97 with 2 months history of neck swelling and vomiting on and off.
She was carrying with her an FNAC report dated 21-11-97/26-11-97 (97 Y 11752), which suggested that child might be suffering from lymphoid malignancy possibly leukemia. Report also indicated that further evidence was needed to confirm cancer (copy of the report enclosed: Annexure I).
AT IRCH on 4-12-97, examination revealed multiple, bilateral lymphadenopathy in cervical , supradiavicular axillae and ingunial area.
Keeping the possibility of lymphoma or leukemia in mind, child was advised blood tests )haemogram and serum biochemistries), chest x-ray (as patient was fehrile) ultrasound of abdomen and pelvis (to evaluate abdominal and pelvis lymphadepathy) bone marrow examination (to diagnose and leukemia and lymph node biopsy (to rule out lymphoma).
She was advised to come for a follow up on 11-12-97 for reassessment and treatment as it was hoped that by that time, some reports would be available.
Child apparently came on 8-12-97 for blood tests (reports available in file Bh 8.1 gm/dl; platelets 37,000/ul and TLC 45,700/ul; Uric Acid 11.2 mgm%, SGOT/PT 97/26 and Serum Na/K 131/3.5; remaining biochemical tests were normal; copy enclosed Annexure 2).
Clinical reassessment and interim treatment could not be given to child as she did not report for a follow up in the clinicians on 11-12-97. She however, came on 16-12-97 for a bone marrow examination when she met Dr. Lalit Kumar. Dr. Lalit Kumar prescribed corticosteroids, since her general condition was poor and diagnosis from bone marrow would have taken another 2-3 days. Prednisolone is an effective drug for lymphoid malignancies and is often given during emergency, while awaiting exact diagnosis; the diagnosis was available later on 18-12-97 (Annexure 3).
2. Reports on this case as obtained from Dr. Lalit Kumar (Associate Professor) and Dr. P.K. As (Senior Resident) are enclosed (Annexures 4 and 5).
Comments:-
From the case summary as given above, and discussion with the doctors, who looked after her, my assessment and comments are as follows:-
1.
By the time patient reported to IRCH, valuable time had been lost and patient was quite sick.
2. There was no delay on the part of IRCH doctors as they registered her on the very day, when she came even though, that was not the day to register new patients.
3. By 4-12-97, when she reported at IRCH, diagnosis had still not been established.
4. It was, therefore, imperative to cary out the tests (as indicated in above summary to establish the diagnosis).
5. Since cancer treatment is highly toxic, it cannot be given unless firm, exact diagnosis has been established.
6. Interim supportive treatment could have been given to the child; unfortunately, however, patient failed to report to the OPD on scheduled date of 11-12-97.
7. Bone marrow and peripheral smear examination were performed on 16-12-97 as scheduled without any complications.
8. Bone marrow and peripheral smear examination are required to diagnose and subtype leukemia.
9. Since treatment and prognosis of various types of leukemias (blood cancer) is different, subtyping is essential.
10. Even though, Dr. Lalit was not scheduled to be in the OPD, on 16-12-97, out of compassion, Dr. Lalit saw the child and prescribed prednisolone.
11. Prednisolone is a lympholytic agent and works very fast. It is often given in lymphoid malignancies during emergencies.
12. Since bone marrow report would have taken another 2 days prednisolone was a reasonable drug to tie over the period.
13. Dr. Lalit also advised that child may be admitted urgently.
14. There was no bed available on that day at IRCH; it is not known, whether admission in casualty was tried by the family.
Conclusion:
1.
From the foregoing, it is clear that Dr. Lalit and his team, all along made all the attempts to help this child.
2. It is unfortunate that child succumbed to the disease.
3. Major reason for this unfortunate happening appears to be the fact that even though she came to AIIMS on 15-11-97, she reported at IRCH on 4-12-97 ( delay of about 3 weeks).
4. Moreover patient could not keep her appointment on 11-12-97, otherwise interim supportive treatment could have been given to her.
5. I have not found any evidence of negligence by doctors in this case.
Sd./-
(Prof. Vinod Kochupillai) Head, Medical Oncology & Chief, IRCH
8. To ascertain the medical negligence, certain criteria drawn from various decisions starting from Bolams case and followed by catena of decisions of Supreme Court 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?
References :-
(i) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(ii) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(iii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(iv) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(v) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651.
(vi) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369.
9. As to the nature of test for finding blood cancer the counsel for the OP has referred to and relied upon the following medical literature:-
(i) Practical Haematology (Tenth Edition) by S. Mitchell Lewis of Hammersmith Hospital, London, UK, Barbara J. Bain of Faculty of Medicine, London, UK & Imelda Bates of University of Liverpoor, Liverpoor, UK.
Biopsy of the bone marrow is an indispensable adjunct to the study of diseases of the blood and may be the only way in which a correct diagnosis can be made. Marrow can be obtained by needle aspiration, pe5rcutaneous trephine biopsy, or surgical biopsy. If performed correctly, bone marrow aspiration is simple and safe; it can be repeated many times and performed on outpatients.. However, the simple procedure of marrow aspiratin seldom fails to provide important information in patients who have a blood disease.. Satisfactory samples of bone marrow can usually be aspirated from the sternum, iliac crest, or anterior or posterior iliac spines.
The iliac spines have the advantage that if no material is aspirated. A trephine biopsy can be performed immediately. The sternum should not be used in children. The posterior iliac spine overlies a large marrow containing area, and relatively large volumes of marrow can be aspirated from this site.
Iliac puncture, particularly in the region of the posterior spine, is usually the method of choice in children. In order children, the tibial cortical bone is usually too dense and the marrow within is normally less active.
It must be remembered that sternal puncture in children should be avoided because the bone is thin and the marrow cavities are small.
(ii) Wintrobes Clinical Hematology (Eleventh Edition) Vol. I by John P. Greer, MD, Vanderbilt University School of Medicine Nashville, Tennessee & Ors.
There are several indications for performing a bone marrow examination. These include further workup of hematology abnormalities observed in the peripheral blood smear, evaluation of primary bone marrow tumors, staging for bone marrow involvement by metastatic tumors, assessment of infectious disease processes including fever of unknown origin, and evaluation of metabolic storage diseases.
In most cases, marrow aspiration and biopsy may be carried out with little risk of patient discomfort, provided adequate local anesthesia is used. Apprehensive patients may be sedated before the procedure, but this is usually not necessary. The procedure is performed under the sterile conditions. The skin at the site of the biopsy is shaved, if necessary and cleaned with a disinfectant soluti9on. The skin, subcutaneous tissue and periosteum in the area of the biopsy are anesthetized with a local anesthetic, such as 1% lidocaine, using a 25-guage needle.
(iii) De Gruchys Clinical Haematology in Medical Practice (Fifth Eduction) Acute leukaemia in children, especially young children, is usually lymphoblastic in type, while in adults it is usually myeloid.
.Although certain features such as gum hypertrophy and ulcerative lesions of the rectum and vagina are more common in the myelomonocytic (M4) than in the other types. Lymph node enlargement is more common in lymphoblastic leukaemia.
Lesions in the mouth and pharynx vary in severity from small necrotic ulcers to areas f marked swelling, with extensive necrosis and ulceration. These lesions can be extremely painful.
However, they may occur in the absence of an obvious site of infectin, in which case blood cultures should be performed, as septicaemia may be present.
Enlargement of the spleen below the umbilicus can occur, but is unusual. Enlargement tends to be more pronounced in children than in adults.
The lymph nodes may be slightly or moderately enlarged, especially in lymphoblastic leukaemia. Enlargement tends to be more pronounced in children. Pain and tenderness in the bones and about the joints may occur, especially in children.
Involvement of the central nervous system results from either haemorrhage, infection, or infiltration with leukaemia, the latter being a common problem in children.
Intracerrebral haemorrhage representes a very serious event, occurring especially in patients with a rapidly rising white cell count, profound thrombocytopenia, or disseminated intravascular coagulation.
..the typical blood picture is of anaemia and thrombocytopenia, with a moderate or marked increase in white cells, the majority of which are blast cells. Anaemia is virtually inevitable. It is characteristically progressive and severe, but the rate of progression various from patient to patient.
In many cases the diagnosis is straightforward. The clinical picture calls for a blood examination which reveals the typical picture of anaemia, thrombocytopenia, and the presence of blast cells with or without leucocytosis. The diagnosis is then confirmed by marrow aspiration.
The type of leukaemia is determined by consideration of the morphological features of the leukaemic cells in the blood and marrow as seen in the Romanovsky-stained films.
10. After according careful consideration to the rival claims and contentions of the parties as well as medical literature we find that there is no medical evidence produced by the complainant in support of the allegation that it was due to injection in the finger or while conducting other tests or bone marrow test that the deceased died. On the contrary there is a report of an expert absolving OP from the charge of negligence. According Prof. Dr. Kochupillai major reason for this unfortunate happening appears to be the fact that even though child came to AIIMS on 15-11-1997, she reported at IRCH on 04-12-1997 i.e. after a delay of three weeks and because he kept the appointment on 11-12-1997, interim supportive treatment could have been given to her.
11. As the medical literature shows, bone marrow test is essential to start the definitive treatment after identifying the type of blood cancer. It is a preliminary test, which is required to be conducted on all suspected patients of blood cancer so as to ascertain the exact nature of blood cancer and to plan the course of treatment accordingly. Bone marrow biopsy examination is generally done from the hip bone using disposable biopsy needle, after giving intra-muscular local anesthesia injection at the same site. It is not a drastic test. Biopsy of the bone marrow is an indispensable adjunct to the study of disease of the blood and is the only way in which a correct diagnosis can be made. Bone marrow aspiration is simple and safe and can be repeated many times and performed on out patients.
12. The correctness of the opinion can be challenged only if there is any other contradicting opinion of the expert. In this case there is no reason to disbelieve the report of Dr. Vinod Kochupillai because there is no other opinion contrary to the said opinion.
13. In the result, we do not find any merit in the complaint and dismiss the same as OPs did what was required to be done and death appears to have occurred because of non-reporting of the deceased on the appointed date and since she was suffering from dreaded disease of blood cancer, inordinate long delay in reporting to the OPs resulted in death.
14. Complaint is disposed of in aforesaid terms.
15. 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.
16. Announced on the 12th November, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj