State Consumer Disputes Redressal Commission
Prasoon Srivastava vs Yashoda Super Speciality Hospital And ... on 10 January, 2024
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/227/2016 ( Date of Filing : 26 Aug 2016 ) 1. Prasoon srivastava Basti ...........Complainant(s) Versus 1. Yashoda Super Speciality Hospital and Otyh. Ghaziabad ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 10 Jan 2024 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No.227 of 2016 1- Prasoon Srivastava s/o Sh. Vijay Kumar Srivastava, 2- Prateek Srivastava s/o Sh. Vijay Kumar Srivastava, Both R/o 863/8, Mohalla Bairihawa, Post-Gandhi Nagar, Basti ...Complainants. Versus 1- Yashoda Super Specialty Hospital through Chairmen, Nehru Nagar, IIIrd M, Ghaziabad. 2- Dr. Ajay Panwar, 3- Dr. Saurabh, 4- Dr. Manjari, All (OPs no. 2, 3 &4) are Consultant at Yashoda Super Specialty Hospital, Address: Nehru Nagar, IIIrd M, Ghaziabad. 5- Uttar Pradesh Medical Council, 5, Sarvapalli, Mall Avenue Road, Lucknow-226001 ...Opp. parties. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Vikas Saxena, Member. Sri Prasoon Kumar Srivastava, Advocate for complainants. Sri Vipul Gupta, Advocate for the opposite parties. Date: 13.2.2024 JUDGMENT
Per Sri Rajendra Singh, Member- This complaint has been filed by the complainants against the opposite parties.
The brief facts of the complaint are that, that the complainants are real brothers and they lost their mother due to negligence of the doctors, respondents no., 3 and 4 in collision with deficient services provided by the respondent no.1 to earn illicit benefits even after the death of the patient. The opposite party no. 1 claims themselves to be a super speciality Hospital in the vicinity. The opposite parties no.2 & 3 are the doctors engaged by OP no. 1 to deal with the situation of the patient. It is submitted that the patient reached Sahibabad Railway Station on 23.08.2014 with the complainant no. 2 and her mother to board Satyagrah Express at around 6 PM, where she met with an accident while boarding the train and fell down on the railway track and her leg was crashed and ejaculated her foot thumb on the spot. The complainant with the help of locals taken her to the Amba Hospital who refused to admit the patient and suggested to go the OP no.1 who claimed to have specialist physicians and surgeons. The complainant reached at Yashodha Superspeciality Hospital (OP no.1) at around 6:40 PM on 23.08.2014 and got admitted at 7:37 PM after depositing the token amount of Rs.80,000.00. The patient was under the supervision of OP no.2 Dr. Saurabh and OP no.3 Dr. Ajay Panwar, appointed by OP no.1.
The Patient underwent several preliminary tests and thereafter was taken to the operation theatre at around 9.30 p.m. for the surgery. Dr. Panwar explained to the complainant that the patient was out of danger as they have fixed pelvic girdle and right arm injury and further said that the patient would be discharged in next 3-4 days and rest recovery will be at home. After that the patient was shifted to HDU ward from the operation theatre where the complainant was informed that he can meet the patient at 6.30 a.m. The patient will be provided liquid diet at 6.a.m. The complainants were present there at the hospital whole night. The duty doctor attended the Patient in the morning and informed to complainant that the Patient's condition was critical as her blood pressure is not very low. The complainant was allowed to meet the Patient at 6:30 AM. The patient asked for the water which was not arranged by the hospital staff. The complainant then arranged water from the kitchen situated at upstairs that spent around 40 minutes and handed over to the duty doctor. Thereafter at around 11- 11:30 AM, the Patient complained about some heaviness and discomfort in her heart to complainant's sister, which she immediately informed to the duty doctor and requested him to call a Cardiologist to attend her mother, which request was rejected by the duty doctor stating the reason that the Cardiologist shall be called only when the main Doctor suggest who is handling her case. The complainant's sister was then directed to leave the HDU ward as the visit time was over, with the assurance that the Patient shall be diagnosed by some Cardiologist also.
The complainant consulted with Dr. Panwar at around 2:00 PM on 24.08.2014 about the heart problem of the Patient and requested to call some Cardiologist to attend her mother, but OP no.2 refused his request stating the reason that problem of heaviness in heart was due to blood pressure, which is now solved with the medicines provided. The complainant further complained Dr. Panwar that the staff members are properly attending the patient and sought permission to visit the Patient out of visiting timings. Then he refused my request and told that a remote is provided the Patient which she can use to call the staff easily (being in the state unconsciousness in the situation of low blood pressure also Dr. Panwar expect from the patient to search the remote first and then call the staff). It is pertinent to mention that the complainant did not observe any such remote around the patient. On further repeated requests of the complainant a steal made table alarm was placed near the patient, which was very hard to press by the patient in such a situation. Then OP no.1 assured to provide a nurse sitting with the patient to watch her situation and to listen her. After an hour the complainant found no nurse sitting near the patient. Then he requested to OP no.1 to allow an attendant who can sit near the patient in case they are unable to arrange the nurse due to short or limited staff, but they refused. The complainant's sister on her own reached HDU at visiting hours where she was informed by security guard at around 4 to 4:30 PM that doctors are examining the patients. Then Dr. Saurabh Gupta informed that the patient's condition was deteriorating and assured her that the patient shall stabilize in 3-4 hours.
The complainant was suggested by OPs no.2 and 3 to put the patient on ventilator to increase the oxygen supply as some fat has flown into her veins which need to burn through oxygen supply. The OPs no.2 and 3 duly understood that they were not provided the proper treatment on time. The patient was complaining about the Cardiac problem since morning but OPs no.2 and 3 neglected the same. It was clear that the "Fat Embolism" was happening and the patient was also complaining to have some uneasiness in the heart that is the main symptom of fat embolism and fat flown in the veins that may cause the Haemorrhage and Cardiac arrest. The complainant visited her mother at around 9 PM on the same day, when she asked for water at an interval of 5-10 minutes as her throat is getting dried up. The complainant passed her request to the hospital staff, then he was informed that they are giving water at every 20.30 minutes. The complainant observed that one staff had given half s glass of water to the patient, which she was asking to give only few drops only to wet her throat at short interval.
The complainant further submits that he met her mother at around 11:30 PM to 12 AM, then she said that she heard staff was talking that she had some blood infection, then the complainant called Dr. Panwar at around 12:30 AM on 25.08.2014 for emergency visit, but he did not receive the call and also not responded on the SMS too. The complainant then approached Respondent no.4 (Dr. Manjari) (as her name was mentioned at her batch), who was present in the hospital at that time and requested her to provide the treatment summary and other papers pertaining to the treatment to consult with some other doctor as he was losing his trust over the concerning doctors, but she refused to provide them at that time and assured to give it by 9 AM after photocopy machine was open. The complainant was even denied to take photo graph of medical summary from his mobile phone which he could have shared with some other doctor for guidance.
The complainant was permitted by Dr. Manjari to visit the patient at 6 AM on morning of August 25. It is pertinent to mention that the complainant was planning to shift his mother to AIIMS in the early morning to avoid the traffic problem. He approached the ward at 6 AM in the morning when the guard at the door was directed to inform the complainant no.1 to come at 8 AM. The complainant reached at 8 AM at the ICU ward, saw that Dr. Manjari was coming from the ward, he (complainant) approached her to allow entering into the ward but she did not utter a single word. The complainant was finally allowed to enter ICU ward at 8:55 AM, where he observed that all chords were removed from the patient's body and only oxygen mask was loosely placed at her nose and no staff was there with her. The complainant was searching the hand sanitizer to apply on hands before touching her mother but before that he asked a staff member present there reason for removing all her chords to which the staff replied that all chords were removed as her body was being sponged. Then the complainant saw Dr. Saurabh entered into the ward and asked to put all leads on her body. It was then observed that all the vitals of the patient was detecting NIL. Then the complainant saw that all staff members immediately rushed to the her mother and started pumping her heart manually, gave few injections but she did not responded. After that the patient was declared 'died' at about 9:35 PM on 25.08.2014 in front of the complainant. The complainant has lost her mother because of the callous and casual attitude of the doctors (OPs no.2, 3 and 4), who failed to take precautionary measures as they were unaware of probability of fat embolism in this case and hence they failed to assess impact of fat embolism on patients health due to lack of knowledge which is the reason that they did not make any effort to take precautionary measures to check the problem of fat embolism at the initial stage nor consulted any competent expert including cardiologist, even after complaining of heart problem by the patient itself, that deteriorated the condition of the Patient.
It is pertinent to mention here that the if OPs no.2 and 3 would have taken proper care to stop the flow of fat into the veins on time due to fat embolism then the life of his mother could have been saved and should have informed the complainants about it. The complainant lose the most precious gift of god due to negligent performance of the duty of the doctor, which could never be expected from such a reputed professional. The complainant was shocked to see the post-mortem report that confirm that OPs no.2, 3 and 4 were negligently performed their duty and the patient died only due to their callous and casual attitude towards their profession and towards their responsibility towards society. As per the post-mortem report it revealed that the patient died at 7:37 AM on 25.08.2014 and Dr. Ajay Panwar and Dr. Saurabh Gupta being the main doctor was not aware about that and was giving treatment to the dead body. Undoubtedly Dr. Ajay and Dr. Saurabh are negligent on their part and Dr. Manjari concealed the fact of the death of the Patient from everybody including the Complainant and her companions too. The OP no.1 did not provide complainant the treatment summary to the complainant, then leaving no other option the complainant has given written request letter to the Medical Superintendent of Yadshoda Superspeciality Hospital, even then the complainant was not provided with every document pertaining to the treatment of the patient. Then leaving no other option complainant filed a complaint before the U. P. Medical Council (Respondent no.5) against the OPs no.2, 3 & 4 where they never appeared despite several summons served to them by the UP Medical Council. The OP no.1 indulged in the following illegal/unfair trade practices and deficiency of services causing loss of life of the complainant's mother to earn through several modus operandi:
a. That the OP no.1 in connivance with OPs no.2, 3 & 4 kept misleading complainants and did not inform them about seriousness of the case and even probability of fat embolism because of their 'ulterior motive' and 'incompetency' which led to negligence.
b. The OP no.1 neither provided the nurse as assured to the patient that results in loss of life of the patient without being attended by the doctor at the last moment of her life during her last breath (as per the postmortem report the patient died at 7:37 AM and the doctor attended the patient at 8:55 AM and declared her dead at 9:35 AM on 25.08.2014.
c. The OP no.1 refused to provide the prescription: and other documents pertaining to the Patient's treatment to consult to another doctor that would make a better team of doctors to be considered as an effort to save the life of the Patient.
d. The OP no.1 leave the patient on OPs no.2, 3 and 4 and did not took any step to monitor the functioning or the way they handled the Patient, that is the foremost function of the management of the Hospital. OP no.1 did place any specialist doctor in ICU during the night that were so competent to take decision in case of complications to the patient.
The OPs no.2, 3 and 4 are responsible for the loss of life of the patient due to their negligent performance of duty in callous and casual attitude that resulted in loss of life of the patient through several modus operandi:
a. That the OPs no.2 and 3 being the principal consultant are responsible for medical negligence for not providing proper treatment to the patient on time even after complaining the problems occurred by the patient herself. This shows that they did not use their expertise or they were not capable to handle the critical situations.
b. That OP no.2 neither attended the Patient during the night in ICU nor did receive the call of the attendants in case of emergency. That result in death of the patient unattended at her last breath even admitted in ICU and OPs no.2 and 3 did not have knowledge of the Patient's death even after more than 90 minutes after loss of sensitivity.
c. OP no.4 denied documents and opportunity to complainant to consult other doctors and also concealed the fact of the death of the Patient with her companion doctors and the complainant as she was present inside the ICU at the time of the death of the Patient or she should have called respondents no. 2 or 3 in case of serious condition of the patient.
d. That OPs no.2, 3 and 4 are incompetent for doing the medical profession as he had given treatment to the dead body more than 30 minutes. That indicates and evidence that the OP no.2 was trying to show the complainant that he had taken every possible step to save the life of the patient.
The OPs no.1, 2, 3, and 4 are severally and jointly responsible for the loss of life of the patient due to their negligent act and deficient in providing the services for which they should be held liable to compensate the complainant for mental torture, harassment and agony, severally and jointly to the tune of Rs.40 lakhs.
Therefore, it is most respectfully prayed that his Hon'ble Commission may graciously be pleased to:
1- Pass an order in favour of complainants and against the OPs no.1, 2, 3 & 4 holding them jointly and severally liable for deficiency in services and negligent performance of professional duties and direct them to pay Rs.46 lakhs to the complainants against mental torture, harassment and agony due to loss of life of the patient (mother of complainants).
2- Instruct/direct the Uttar Pradesh Medical Council to cancel the registration certificate of Opposite Parties no.2, 3 and 4 disallowing them to practice.
3. Instruct/Direct the Uttar Pradesh Medical Council to circulate the order to all Hospitals to registered with them to mandatorily have formal and independent complaint cell duly advertised in their premise that should advise patients/ attendants on their rights verbally and thereafter in written format and process for filing grievances if any thereafter.
4- Instruct/Direct the Uttar Pradesh Medical Council to ask all Hospitals registered with them to mandatorily have formal and independent complaint cell duly advertised in their premise that should transparently list all complaints filed against hospital/doctors/staff along with their status in transparent manner and details of complainants and the same should be available for an person asking for it in email/photocopy/printed format.
5- To pass any other order as the Hon'ble Commission deems fit and proper in the present circumstances.
6- Direct the Opposite Party no.1 to reimburse the cost, expenditure and losses to the tune of Rs.2,00,000/- along with 24% interest.
7- Direct the Opposite Party no.1 to reimburse cost of Rs.55,000/- being the cost of this Complaint and amount paid by the Complainant to his lawyers.
8- Restrain the Opposite party in future from indulging in such unfair trade practices and dirty recovery tactics.
9- Pass such other or further order(s) as this Hon'ble Commission may deem fit and proper in the interest of justice.
As per the order dated 30.1.2017 service on the opposite parties has been held sufficient. This case was reserved for judgment on 8.9.2017 but released on 24.10.2017 for getting some clarification on certain points. Thereafter, on 15.11.2017, Advocate Sri Vipul Gupta filed his Vakalatname on behalf of the opposite parties.
As far as the application given by the opposite parties for permission to file written statement, it is clear that even after 30 days of service of notice, no written statement has been filed by the opposite parties. In this case, the following judgment of the Hon'ble Supreme Court is worth reading.
A Constitutional Bench (5 JJ) of the Hon'ble Supreme Court In the Case of New India Assurance Complainant Vs. Hilli Multipurpose Cold Storage Private Limited, Civil Appeal no.10941-10942 of 2013 along with other many related Civil Appeals ( judgment 04.03.2020) held:
"The reference made to this Constitution Bench relates to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act, 1986 (for short 'the Act").
The first question referred is as to whether Section 13(2) (a) of the Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complaint within 30 days or such extended period not exceeding 15 days, should be read as mandatory or directory; i.e. whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days.
The second question which is referred is as to what would be the commencing point of limitation of 30 days stipulated under the aforesaid Section.
The first question was referred by a two Judges bench of this Court vide an order dated 11.02.2016 passed in Civil Appeal No (s) 10831084 of 2016, M/s Bhasin Infotech and Infrastructure Pvt. Ltd. Vs. M/s Grand Venezia Buyers Association ( Reg), the relevant portion of which is as under:
"there is an apparent conflict between the decision of this Court in Topline Shoes Limited vs Corporation Bank [(2002)6 SCC 33], Kailash vs Nankhu [(2005)4 SCC 480] , Salem advocate Bar Association VS Union of India [(2005) 6 SCC 344] on the one hand and J. J. Merchant & Ors. vs. Shrinath Chaturvedi [(2002) 6 SCC 635)] and NIA Vs. Hilli Multipurpose Cold Storage [ 2014 AIOL 4615] on the other in so far as the power of the courts to extend time for filing of Written Statement/reply to a complaint is concerned. The earlier mentioned line of decision take the view that the relevant provisions including those of Order 8 Rule 1 of the Civil Procedure Code 1908 are directory in nature and the Courts concerned have the power to extend time for filing the written statement. The second line of decisions which are also of coordinate Benches however takes a contrary view and hold that when it comes to power of the Consumer Fora to extend the time for filing a reply there is no such power. Since the question that falls for determination here often arises before the Consumer Fora and Commissions all over the country it will be more appropriate if the conflict is resolved by an authoritative judgment. Further since the conflict is between Benches comprising three Judges we deem it fit to refer these appeals to a five - Judge Bench to resolve the conflict once and for all. While we do so we are mindful of the fact that in the ordinary course a two - Judge Bench ought to make a reference to a three - Judge Bench in the first place but in the facts and circumstances of the case and keeping in view the fact that the conflict is between coordinate benches That comprising three Judges a reference to 3 Judges may not suffice"
The Hon'ble Supreme Court in para 41 of the judgment has held:
"To conclude, we hold that our answer to the first question is that The District Forum has no power to extend the time for filing the response to the complainant beyond the period of 15 days in addition to 30 days as envisaged under section 13 of the Consumer Protection Act ; and the answer to the second question is that the commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act would be from the date of receipt of the notice accompanied with the complainant by the opposite party and not mere receipt of the notice of the complainant. "
The Hon'ble Supreme Court in para 40 of the judgment has held ".............. we may, however, clarified that the objection of not having received a copy of the complaint along with the notice should be raised on the first date itself and not thereafter, otherwise permitted to be raised at any point later on defeat the very purpose of the Act, which is to provide simple and speedy Redressal of consumer disputes."
[Section 38 of the Consumer Protection Act 2019 has also the same time limit to file written statement. It is quoted hereinbelow ;
38. Procedure on admission of complaint -(1) the District Commission shall , on admission of a complaint, or in respect of cases referred for mediation on failure of the agreement by mediation proceed with such complaint.
(2) were the complainant relates to any goods, the discussion That shall -
(a) referral copy of the admitted complaint, within 21 days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by it ; ] According to section 49 of The Consumer Protection Act 2019, the provisions relating to complainants under section 35, 36, 37, 38 and 39 shall, with such modifications as may be necessary, be applicable to the disposal of complaint by the State Commission.
So in this case the written statement has been filed beyond the prescribed period as mentioned in section 49 of the Consumer Protection Act 2019. As per the act and as per the judgment of the only Supreme Court (Constitutional Bench) this written statement is not liable to be taken on record so it will be not the part of the record.
Therefore, the written statement cannot be taken on record and application for taking written statement is dismissed.
If no written statement has been filed or not taken on record, the concerned opposite party has a right to argue at the time of argument, as per judgment of the Hon'ble Supreme Court held in ARN Infrastructure India Limited Vs Hara Prasad Ghosh, SC (civil appeal diary no 31182/2023, Judgment dated 04.09.2023).
"A complaint under original jurisdiction was filed before the NCDRC seeking return of deposit from the Opposite Parties. In the said case, the Opposite Parties did not file their Written Version within the statutory timeline prescribed. While so, at the time of hearing final arguments, the Opposite Parties entered appearance through an advocate and sought an adjournment to make final arguments in the case.
The NCDRC rejected the said request on the ground that the Written Version was not filed within the statutory period. The NCDRC allowed the complaint by hearing only the Complainant on merits. An application was filed by the Opposite Parties to recall the aforesaid order. The said application was also dismissed by the NCDRC against which a civil appeal was filed before the Hon'ble Supreme Court which is under discussion here.
The issue before the Hon'ble Supreme Court was whether the Opposite Parties are entitled to make final arguments even when the Written Version was not filed. The Hon'ble Supreme Court held that the Opposite Parties have a right to make final arguments even if the Written Version was not filed. The Apex Court observed that hearing only the Complainant on merits when the Opposite Parties intended to make submissions is violative of the principles of natural justice.
So, in this case the opposite parties have right to argue.
We have heard Sri Prasoon Kumar Srivastava, ld. counsel for the complainants and Sri Vipul Gupta, ld. counsel for the opposite parties.
We perused the evidence and documents filed by the complainant. No evidence has been filed by the opposite parties.
First of all we see the oath taken by Dr before entering into the noble professional of medical science.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
Now let us see the different case laws and the broader scope of res ipsa loquitur to prove the negligence of the doctor in a given circumstances and in the given disease.
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligence a plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent. This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
DOCTRINE OF RES IPSA LOQUITAR The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim.
The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur.
The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act.
Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent. The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant, Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal & Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth Rs.12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not ave occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No.1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Hon'ble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos.1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Hon'ble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no.1 to 4 to the complainant in the following manner:
(i) Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation].
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation .
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default."
In this case the complainant has stated in his complaint that fat embolism was happening and the patient was complaining to have some uneasiness in the heart, which is the main symptom of fat embolism and flowing of fat in the veins that may cause more haemorrhage and cardiac arrest What is fat embolism ?
Fat embolism is most commonly associated with trauma. Long bone and pelvic fractures are the most frequent causes, followed by orthopedic surgery--particularly total hip arthroplasty--and multiple traumatic injuries. Soft tissue damage and burns can cause fat embolisms, although far less frequently than fracture. The most popular theory about the etiology of fat embolism is that fat globules (emboli) are released by the disruption of fat cells in fractured bone and enter through ruptures in marrow vascular beds. An alternative theory proposes that the emboli result from the aggregation of free fatty acids caused by changes in fatty acid metabolism triggered by trauma or disease. Regardless of the source, increased fatty acid levels have a toxic effect on the capillary-alveolar membrane in the lung and on capillary beds in the cerebral circulation.
Traumatic fat embolism occurs in 90 percent of individuals with severe skeletal injuries, but the clinical presentation is usually mild and goes unrecognized. Approximately 10 percent of these patients develop clinical findings, collectively known as fat embolism syndrome (FES). In its most severe form, FES is associated with a 1-2 percent mortality rate [1]. FES can also occur under several nontraumatic conditions. It can be seen following cardiopulmonary resuscitation, parenteral feeding with lipid infusion, liposuction and pancreatitis. FES has also been proposed as a major cause of the acute chest syndrome in patients with sickle cell disease [2].
Fat embolism syndrome is characterized by pulmonary insufficiency, neurologic symptoms, anemia and thrombocytopenia. The diagnosis is based on clinical presentation of symptoms which usually appear one to three days after injury. Onset is sudden. Presenting symptoms are myriad and include tachypnea, dyspnea and tachycardia. The most significant feature of FES is the potentially severe respiratory effects, which may result in adult respiratory distress syndrome (ARDS). Neurologic symptoms may also be present; initial irritability, confusion and restlessness may progress to delirium or coma. Petechiae appear on the trunk and face and in the axillary folds, conjunctiva and fundi in up to 50 percent of patients and can aid in diagnosis [1-3]. Of these symptoms, respiratory insufficiency, central neurologic impairment and petechial rash are considered major diagnostic criteria, and tachycardia, fever, retinal fat emboli, lipiduria, anemia and thrombocytopenia are considered minor diagnostic criteria [4].
The most effective approach to treatment of FES is prevention. An accepted prevention strategy is early stabilization of fractures, particularly of the tibia and femur, which allows patients to mobilize more quickly. This has been found to decrease the incidence of FES, ARDS and pneumonia and reduce the length of hospital stay [5-7]. Aggressive fluid resuscitation and maintenance of an adequate circulatory volume have also been shown to be protective. More controversial is the use of prophylactic corticosteroids. Nearly all trials of both low and high dose methylprednisolone have demonstrated a reduction in the incidence of FES as well as less severe hypoxemia [8-10]. Since most cases of FES are mild and the great majority of patients recover, concerns regarding the risk of infection and wound healing impairment have limited the routine use of corticosteroids. Once symptoms develop, treatment is supportive. Corticosteroids may be beneficial if cerebral edema is present. Respiratory insufficiency is treated with oxygen therapy and continuous positive Abstract Fat embolism syndrome (FES) is an ill-defined clinical entity that arises from the systemic manifestations of fat emboli within the microcirculation. Embolized fat within capillary beds cause direct tissue damage as well as induce a systemic inflammatory response resulting in pulmonary, cutaneous, neurological, and retinal symptoms. This is most commonly seen following orthopedic trauma; however, patients with many clinical conditions including bone marrow transplant, pancreatitis, and following liposuction. No definitive diagnostic criteria or tests have been developed, making the diagnosis of FES difficult. While treatment for FES is largely supportive, early operative fixation of long bone fractures decreases the likelihood of a patient developing FES.
OVERVIEW Over 150 years ago, Zenker described the first case of fat embolism syndrome (FES) in a patient suffering from crush injury.[1] While FES was later clinically diagnosed and often reported in the literature over the next 100 years, Gurd's clinical description of the FES renewed interest in studying this syndrome.[2,3] Fat embolism is the presence of fat particles within the microcirculation, while FES is the systemic manifestation of fat emboli within the microcirculation. Common systemic manifestations include respiratory distress, altered mental status, and a rash.
FES is most often associated with orthopedic trauma. Rare cases of FES have been reported to occur following bone marrow transplantation, osteomyelitis, pancreatitis, alcoholic fatty liver, and even liposuction.[4] Since most cases of FES occur following orthopedic trauma, available research focused on FES in orthopedic trauma patients.
EPIDEMIOLOGY Fat embolization occurs frequently following orthopedic trauma. Fat globules have been detected in the blood of 67% of orthopedic trauma patients in one study.[5] This number increased to 95% when the blood is sampled in close proximity to the fracture site.[6] Hypoxemia may suggest fat embolization causing subclinical FES. Almost all patients monitored with continuous pulse oximetry following a long-bone fracture will have episodes of hypoxemia.[7] Further embolization may occur during operative fixation. Intraoperative transesophageal echocardiogram studies have detected fat embolization in 41% of patients during the fixation of long-bone fractures.[8] While almost all patients will have fat globules detected in the blood or develop transient hypoxia, the incidence of FES is much lower. In his initial study defining the clinical criteria for FES, Gurd reported the incidence of FES as 19% in a group of trauma patients.[9] As early operative fixation of long-bone fractures has become standard care, modern studies report an incidence of FES between 0.9% and 11%.[10-12] PATHOPHYSIOLOGY Fat particles enter the circulation and cause damage to capillary beds. While the pulmonary system is most frequently affected, fat embolism can occur in the microcirculation of the brain, skin, eyes, and heart can be involved.
The two leading theories for the formation of fat embolism are the mechanical theory and biochemical theory. The mechanical theory proposes that obstruction of the systemic vasculature by fat embolism occurs from the direct release of bone marrow into the venous system following trauma. An elevated intramedullary pressure following trauma leads to the release of fat through open venous sinusoids. The embolized fat obstructs capillary beds. While this accounts for embolisms within the pulmonary capillaries, the theory does not explain embolisms within the systemic capillaries beds. Patients have been shown to have systemic fat embolization without a patent foramen ovale.[13] The biochemical theory provides an alternate explanation for fat embolization. This theory proposes that the inflammatory response to trauma causes the release of free fatty acids from the bone marrow into the venous system. The elevated free fatty acids as well as the inflammatory mediators cause damage to capillary beds. Elevated free fatty acid levels have been associated with hypoxemia.[14] Free fatty acids have also been shown to induce inflammation within the lungs.[15] Regardless of the mechanism initiating fat embolism, the end result is an intense inflammatory response. Capillary beds develop increased permeability and inflammatory mediators damage surrounding tissues. In the lungs, this induces lung injury that is indistinguishable from ARDS.
CLINICAL PRESENTATION Embolized fat droplets can travel to microvasculature throughout the body. FES is, therefore, a multiorgan disease and can damage any microcirculatory system within the body. Fat has been reported to embolize to the lungs, brain, skin, retina, kidneys, liver, and even the heart.[16] Presenting signs are nonspecific and include tachypnea, tachycardia, and fever. Patient may have a petechial rash. Specific symptoms are dependent on the organ systems involved.
The pulmonary circulation is most commonly affected in FES, with up to 75% of patients experiencing respiratory depression.[17,18] The degree of respiratory dysfunction can range from mild hypoxia requiring supplemental oxygen to ARDS requiring prolonged mechanical ventilation. Patients may decompensate rapidly to respiratory failure, especially during manipulation of fractures whilemoving the patient or setting the fracture in the operating room. This must especially be taken into consideration while in the operating room; an anesthetized patient may develop acute hypoxia secondary to FES.
FES can cause nonspecific neurological symptoms. Symptoms are believed to arise from cerebral edema rather than ischemia, so symptoms are nonlateralizing.[19] Patients may become lethargic or restless. A change in Glasgow coma scale (GCS) may suggest the development of cerebral edema due to FES. In the setting of severe cerebral edema the patient may become unresponsive.[20] Dermal involvement results in a petechial rash, reported in approximately 50% of patients.[21] This rash tends to be transient, lasting less than 24 h. While the torso is most commonly affected, the entire dermis and even mucosal membranes can be involved.
Microvascular injury of the retina results in hemorrhagic lesion of the retina, seen in 50% of patients.[22] These lesions are self-limited, disappearing within weeks.[23] Residual visual deficits are uncommon.
Patients may also develop thrombocytopenia or a decrease in hemoglobin in FES.
DIAGNOSIS Since FES is a heterogeneous disease with no pathognomonic features, its diagnosis can be challenging. Gurd proposed a of clinical criteria for diagnosing FES in 1970 that he later modified with Wilson[4,5] [Table 1]. Schonfeld has suggested a scoring system to helpin diagnosis[24] [Table 2], while Lindeque proposed that FES can be diagnosed based on respiratory changes alone[25] [Table 3]. None of these criteria have been validated or have been universally accepted.
Table 1 Gurd and Wilson's criteria for FES Table 2 Schonfeld's scoring system for FES Table 3 Lindeque's criteria for FES In the acute setting respiratory distress is the most clinically significant feature of FES. Respiratory distress from FES is indistinguishable from ARDS seen in polytrauma patients. White has suggested defining FES as ARDS with additional organ involvement due to bone trauma.[26] Laboratory and imaging tests can helpin the diagnosis, but are nonspecific. Patients will demonstrate hypoxemia while on room air on arterial blood gas. Chest x-ray will often show diffuse interstitial infiltrates while chest CT scan will show diffuse areas of vascular congestion and pulmonary edema.
Attempts at developing specific test for FES have been disappointing. Biologic markers such as lipase, free fatty acids, and phospholipase A2 have all been shown to be elevated in patients with FES; however, this elevation is nonspecific in patients with lung injury. Microscopic examination of blood, urine, or sputum may show fat globules, but again this finding is nonspecific.
Bronchoalveolar lavage (BAL) has been heavily investigated as a diagnostic tool for FES.[27-29] Lipid inclusions within macrophages can be quantified BAL. BAL though is invasive and time intensive. It has not become widely used in diagnosing FES.
With the absence of specific tests or criteria the diagnosis of FES is dependent on the clinical acumen of the treating physician. It should be clinically suspected in patients with respiratory distress or a petechial rash and are at high risk for developing FES.
TREATMENT Pharmacologic interventions Therapeutic treatments developed specifically for FES have been largely unsuccessful. Early experiments attempted to use dextrose to decrease free fatty acid mobilization or ethanol to decrease lipolysis; however, neither have shown clinical benefits.[30,31] Anticoagulation with heparin was found to be beneficial in animal models but is no longer commonly used in clinical practice due to the risk of bleeding and unproven benefits.[32-34] Corticosteroidtherapy has been proposed as a potential therapy for FES by limiting free fatty acid levels, stabilizing membranes, and inhibiting complement mediated leukocyte aggregation. Meta-analysis of seven randomized trials using prophylactic corticosteroids in patients with long-bone fractures found that corticosteroids reduce the risk of FES by 77% (95% CI: 40-91%).[35] This same trial reported no difference in mortality, infection, or avascular necrosis in patients treated with corticosteroids compared to control patients. This meta-analysis, though, included only one recent trial. A 2004 randomized trial found no difference in incidence of FES between patients treated with methylprednisolone.[7] While still controversial, some clinicians administer corticosteroids to patients with long-bone fractures as FES prophylaxis. Methylprednisolone is the most commonly used steroid and dosages range from 6 to 90 mg/kg.
Placement of inferior venal cava filters has been advocated as a method to reduce showering of emboli to the pulmonary vasculature. IVC filters as a prophylactic treatment to prevent FES have not been sufficiently studied.
Supportive treatment Once a patient develops FES the only proven treatment is supportive care of the involved organ systems. Supplemental oxygen may be required to improve oxygenation. If ARDS develops the patient may require mechanical ventilation while recovering from lung injury. Patients may require intravenous fluid for resuscitation to avoid developing shock. In severe cases, in which a fat pulmonary embolism causes, right ventricular failure ionotropic support with dobutamine may be necessary.[36] Patients with neurological manifestations require frequent neurological examinations and documentation of Glascow Coma Scale to assess for neurologic deterioration. Rapid deterioration may develop from increased cerebral edema.[20] Patients with FES and cerebral edema may benefit from placement of an intracranial pressure monitor in order to direct treatment of cerebral edema.[37] Operative fixation Early operative fixation of long-bone fractures is advocated to reduce the incidence of FES. In the long-bone, fractures were treated conservatively with prolonged immobilization, with the incidence of FES in these patients reported as 22%.[38] The movement of fracture ends prior to operative fixation have been shown to result in transient showering of fat embolism.[39] Cytokines remain persistently elevated in patients undergoing conservative treatment and then return to normal after operative fixation.[40] The use of internal fixation devices for treatment of long bone fractures was accompanied by a reduction in the incidence of FES.[41] Several retrospective studies have also reported decreased incidence of FES with use of internal fixation devices.[11,42-47] Johnson et al. further demonstrated that patients undergoing fixation urgently had an incidence of ARDS of 7% compared to an incidence of ARDS of 39% in patients that had fixation delayed by more than 24 h.[43] Increased intramedullary pressure during fixation increases the amount of fat emboli entering the circulation.[48] Care must be taken during operative fixation to limit intramedullary pressure.
While reaming may increase intramedullary pressure, reaming has not been shown to increase the incidence of FES. A randomized trial comparing pulmonary complications in patients undergoing fixation with reamed nailing and unreamed nailing found no difference between the two groups.[49] When assessed with transesophageal echocardiography, patients undergoing fixation with reamed and unreamed nails had visible pulmonary embolism.[50] Surgical techniques to reduce embolization including drilling holes in the cortex to reduce intramedullary pressure, lavaging bone marrow prior to fixation to reduce marrow for embolization, venting of the femur, use of a bone-vacuum, and use of tourniquets to prevent embolization have been attempted. None of these have clearly been shown to reduce FES.[51-55] Morbidity and mortality With supportive care and early fixation FES has a favorable outcome. The most significant morbidity is associated with the development of ARDS. However, most patients can expect a complete recovery of pulmonary, neurologic, and retinal abnormalities. Mortality rates from FES in modern studies utilizing supportive measures and early operative fixation report the mortality from FES between 7% and 10%.[9,10] CONCLUSION FES most commonly presents with respiratory distress in orthopedic trauma patients. No specific diagnostic tests or criteria exist, so the syndrome is most often a diagnosis of exclusion. Therapy is most often directed at treatment of ARDS and support of other organ systems affected by fat embolization. Early operative fixation long-bone fractures have reduced the incidence of FES.
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Now it has become clear that it was a case of fat embolism. As per complainant the opposite parties did not provide proper treatment on time. It is rare case and also it is fatal to more extent. We have seen the medical literature about fat embolism. It is nothing to do with the carelessness or negligence of Dr but it is related to the bone fracture. There's no cure for fat embolism syndrome, and there's no standard treatment plan for cases of the condition. Treatments for fat embolism syndrome can include medications, life-supporting devices and treatments to prevent further complications. The main goal with this condition is providing supportive care. A fat embolism can cause a pulmonary embolism. Even when it does not, a person may experience breathing difficulties similar to those accompanying a blockage in the pulmonary artery.
In some cases Trusted Source, a pulmonary embolism may also occur at the same time as a fat embolism. This is because some of the risk factors for the two are similar.
For example, a person who breaks a leg may suffer a fat embolism, then later develop a blood clot in the leg because they do not move around much due to their injury. The leg blood clot can then cause a pulmonary embolism.
Most people with a fat embolism have no symptoms. Among those who do, the outlook is generally good as long as they are able to receive supportive care in a hospital.
For a small number of people, fat embolism syndrome is fatal. Precise estimates of the death rate vary, ranging from 7 to 10%.
Some people with fat embolism syndrome temporarily develop serious complications, such as respiratory distress. Even when people experience these severe symptoms, the condition usually does not cause death.
The following factors could increase the risk of worse outcomes for people with fat embolism syndrome:
older age underlying medical conditions the inability of a person's organs to function under stress There is no specific treatment that can reverse or cure a fat embolism.
Instead, doctors provide supportive care to ensure a person can breathe until the embolism clears. A person may need to be on oxygen and, in some cases, may need to use a ventilator.
The incidence of FES varies from 1-29%. The etiology may be traumatic or, rarely, nontraumatic. Various factors increase the incidence of FES. Mechanical and biochemical theories have been proposed for the pathophysiology of FES. The clinical manifestations include respiratory and cerebral dysfunction and a petechial rash. Diagnosis of FES is difficult. The other causes for the above-mentioned organ dysfunction have to be excluded. The clinical criteria along with imaging studies help in diagnosis. FES can be detected early by continuous pulse oximetry in high-risk patients. Treatment of FES is essentially supportive. Medications, including steroids, heparin, alcohol, and dextran, have been found to be ineffective.
A doctor may also give a person the drug albumin or electrolytes to bind to fat and help maintain normal blood volume.
There is no evidence that steroids, anticoagulants, or similar drugs can cure or treat a fat embolism.
So in such circumstances, we do not find that the principle of res ipsa loquitur will apply here. In this case the doctor cannot be held liable for carelessness or negligence. It is a rare medical phenomena which can happen in anybody body. So from all the circumstances and going through the medical literature, we are of the opinion that the above opposite parties are not guilty of negligence or carelessness and the present complainant is liable to be dismissed.
In this case, it is clear that the complainants have knowledge that it is a matter of 'Fat Embolism' and in spite of it, they filed a complaint case against the doctors, so they are liable to pay exemplary cost to the doctors for their harassment in this case. Therefore, the complainants are liable to pay exemplary cost Rs.1,00,000.00 to each doctor i.e. Dr. Ajay Panwar, Dr. Saurabh and Dr. Manjari and also will pay the cost of case spent by the opposite parties to contest the case. So in this account, the complainants are liable to pay Rs.20,000.00 to each opposite parties no.1 to 4. If this amount is not paid within 30 days from the date of the judgment of this case, the complainants will be liable to pay interest @10% p.a. on the above amount after 30 days from the date of judgment of this case till the date of actual payment.
ORDER The complaint is dismissed with cost.
The complainants are directed to pay exemplary cost of Rs.1,00,000.00 to each doctor i.e. Dr. Ajay Panwar, Dr. Saurabh and Dr. Manjari and also directed to pay Rs.20,000.00 to each opposite parties no.1 to 4 within 30 days from the date of this judgment. If this amount is not paid within 30 days from the date of the judgment of this case, the complainants will be liable to pay interest @10% p.a. on the above amount after 30 days from the date of judgment of this case till the date of actual payment.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to the Record-room. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Dated 13.2.2024 JafRi, PA I C-2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER