National Consumer Disputes Redressal
Dr. Anil Kumar Aggarwal vs Hardwari Lal on 25 May, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI APPEAL NO. 68 OF 2008 (Against the Order dated 22/11/2007 in Complaint No. C-271/1998 of the State Commission Delhi) WITH IA/8357/2016 1. HARDWARI LAL RESIDENT OF 16/696 - H BAPA NAGAR, MILITARY ROAD, KAROL BAGH, NEW DELHI - 110005 ...........Appellant(s) Versus 1. DR. A.K. AGGARWAL RESIDENT OF 5/11779,Sat Nagar KAROL BAGH, NEW DELHI - 110005 ...........Respondent(s) FIRST APPEAL NO. 208 OF 2009 (Against the Order dated 22/11/2007 in Complaint No. 271/1998 of the State Commission Delhi) WITH
IA/8357/2016 1. DR. ANIL KUMAR AGGARWAL 5/11779, Sat Nagar, Karol Bagh New Delhi ...........Appellant(s) Versus 1. HARDWARI LAL 16/696-H, Bapa Nagar, Military Road, Karol Bagh New Delhi - 110 005 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : For the Complainant : Mr. Sanjay Kumar and Mr. Vijay Kumar, Advocates For the Respondent : For the Doctor : Mr. Gaurav Kumar Chitkara and Mr. Ankit Sethi, Advocates Dated : 25 May 2017 ORDER These two cross First Appeals, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), arise out of the order dated 22.11.2007, passed by the State Consumer Disputes Redressal Commission, Delhi at New Delhi (for short "the State Commission") in Complaint Case No. C-271 of 1998. By the impugned order, while holding that there was limited deficiency on the part of the sole Opposite Party in the Complaint, hereinafter referred to as the Treating Doctor, in not ensuring the quality of the injection equipment, including the syringe being duly sterilized, which resulted in growth of Gas Gangrene; amputation of the left arm and ultimate death of the wife of the Complainant, the State Commission has awarded a lump-sum compensation of ₹50,000/-, including the cost of litigation, in favour of the Complainant.
2. While First Appeal No. 68 of 2008 has been filed by the Complainant for enhancement of compensation from ₹50,000/- to ₹10,00,000/- by holding the Treating Doctor fully liable for his negligence, First Appeal No. 208 of 2009 has been filed by the Treating Doctor for setting aside of the impugned order itself. Since both the cross Appeals emanate from the same order, between the same parties, these are being disposed of by this common order. However, for the sake of convenience, First Appeal No. 68 of 2008 is treated as the lead case.
2.1. The relatively few unfortunate circumstances which led to the filing of the Complaint are as follows:
2.2 On 14.09.1996, the wife of the Complainant, namely Smt. Bimla Rani (for short "the Patient"), aged about 40 years, was suffering from high fever. She was taken to the clinic of the Treating Doctor. After examining her, the Treating Doctor gave an injection and some medicines. According to the Complainant, though he had paid fees to the Treating Doctor but no prescription was given to them; the syringe and needle used for administering injection were not taken out from a sealed packet, which fact was brought to the notice of the Treating Doctor before the injection was given; as advised, the prescribed medicines were taken by the Patient for 3 - 4 days but still the fever persisted, necessitating another visit to his clinic in the evening of 19.09.1996; after examining her, the Treating Doctor again administered two injections, one on her left arm and other on the hip. When the Patient started feeling severe pain and inflammation on her left arm in less than 24 hours of administration of the said injections, she was taken to the clinic of the Treating Doctor in the evening of 20.09.1996; on examination, he told the Complainant that since injections given were strong, pain/inflammation would subside after few hours; the Patient was also advised hot water fomentation. However, as the pain did not subside and inflammation on the arm of the Patient had increased,on 21.09.1996, the Complainant again took the Patient to the clinic of the Treating Doctor. Since, her condition had deteriorated, he expressed his inability to treat herany more. It was alleged that though initially the Treating Doctor showed reluctance in giving the prescription to the Complainant but on persistent demand he gave the prescription/slip. The said prescription/slip, bearing the date 14.09.1996 on the top corner but purportedly signed by the Treating Doctor on 27.09.1996, mentioning the injection/medicines, is printed below for the sake of ready reference:-
2.3 Another prescription/slip, admittedly issued by the Treating Doctor is on record and as the same has some bearing on the case, it is also printed hereunder:
2.4 The Patient was taken to Ram Manohar Lohia Hospital, New Delhi on 21.09.1996 itself. She was admitted in Surgical Emergency Ward. In order to contain further spread of Gas Gangrene infection, in the early hours of 22.09.1996, a minor surgery was performed on the Patient and some infected tissues/muscles/skin was removed from her left arm. Subsequently, in order to save her life, her left arm was amputated on 23.09.1996. Despite best efforts by the Doctors at Ram Manohar Lohia Hospital, the condition of the Patient did not improve and ultimately she passed away on 25.09.1996 at 9.50 a.m. 2.5 The Complainant lodged an FIR under Section 304-A IPC against the Treating Doctor, resulting in his arrest and subsequent release on bail the next day. On Patient's death, MLC bearing No. 124003/96 dated 25.09.1996 was prepared and her post-mortem was conducted at Maulana Azad Medical College, New Delhi on 27.09.1996. In the post-mortem report no definite opinion as to the cause of death was given, observing thus: "no definite opinion can be given regarding cause of death at this stage as viscera have been preserved and sealed for analysis and handed over to police."
2.6 In the aforesaid background and having failed to elicit any response to his legal notice dated 27.07.1998, alleging gross medical negligence on the part of the Treating Doctor in administering injections using infected syringes/needles and swabs, which led to the Gas Gangrene, the afore-noted Complaint came to be filed before the State Commission. The Complainant had, inter alia, prayed for a direction to the Treating Doctor to pay to him a sum of ₹10,00,000/- as compensation for the death of her wife, who was earning between ₹3,500/- and ₹4,500/- per month through embroidery/knitting/ stitching etc.
3. Upon notice, the Treating Doctor contested the Complaint. Refuting the allegations levelled in the Complaint, in his Written Version, the Treating Doctor pleaded that the Complainant had already filed a criminal case against him and pending consideration thereof, the Complaint may be adjourned sine die.On merits, it was stated that the services rendered by the Treating Doctor were of a highly skilled and specialized nature but unlike the machines created by men, where all the parts thereof are same and respond in similar manner under similar set of stimuli/instructions, the human body responds in a variety of ways, sometimes unexpected, under same set of circumstances and treatment; since the Patient had simultaneously been treated by some other Doctors/Nursing Home and Ram Manohar Lohia Hospital, the Complaint was bad for misjoinder of parties; the Complainant had informed him that the Patient was having history of diabetes and was taking treatment therefor; the Patient was administered injection after properly cleaning the site where the same was to be given with a cotton swab soaked in antiseptic solution and using disposable syringe and needle; the Patient was advised medicines for 1 day only and not for 3- 4 days, as alleged by the Complainant; when the Patient was brought to his clinic on 14.09.1996 with the complaint of persisting fever, the Complainant and the Patient were apprised of the fact that the prescribed medicines would take some time to respond; however, the Complainant insisted that some more effective medicines be administered to the Patient so that she could get instant relief; and therefore he decided to administer two more injections to the Patient but, on the rigid insistence of the Complainant, one injection was deleted from the prescription slip and only one injection was administered to the Patient, using disposable syringe and needle. It was stated that, in all, only two injections were administered to the Patient on 14.09.1996; one in the morning and one in the evening at the hip and not on her upper shoulder, as alleged. It was asserted that the Patient was not brought to his clinic on 19.09.1996 and after taking treatment on 14.09.1996, the Patient was brought to his clinic only on 21.09.1996, and never in between the intervening period of 7/8 days, as alleged; on 21.09.1996 the Patient had swelling on her hand, which was abnormal in the circumstances of the case, whereupon the Complainant had informed him that since he was not satisfied with the treatment, he had taken his wife to two other medical practitioners, who administered injections to the Patient and had also applied/prescribed some local medication; and it was only when the condition of the Patient had deteriorated, the Complainant brought her to his clinic but since by that time, the condition of the Patient had deteriorated beyond care, he referred her to a bigger hospital. As regards the prescription of the medicines, on 14.09.1996, it was stated that since the Patient had one day's fever, it was not mentioned on the prescription slip and that she was suspected to be having Dengue fever; when the Patient was brought to his clinic on 21.09.1996, it was found that she had rashes on her body and other indications to suspect Dengue fever, which was prevalent during that period, and, therefore, the same was mentioned by him. It was pleaded that he had not suppressed any fact as regards acute infection to the Patient nor had he committed any negligence while treating her; since the Patient had died after 4 - 5 days of her hospitalization, he could not be blamed for the same; the post mortem report did not record any definite opinion as to the cause of death of the Patient; the whole story was cooked up by the Complainant with a view to frame him. As regards the legal notice, it was stated that an unsigned letter dated 27.07.1998, purportedly issued on behalf of the Complainant, was received by him but since the same was baseless and without any merit, it was not responded to.
4. On appreciation of the evidence adduced by the parties before it, the State Commission, as noted above, has allowed the Complaint, awarding a lump-sum compensation of ₹50,000/-, including the cost of litigation, in favour of the Complainant, observing thus:
"15. After according careful consideration to the rival claims and contentions we find it difficult to accept the version of the OP that injection was given on the hip only. Had it been so question of development of gas gangrene during the short period would not have arisen. Even if we assume for the sake of argument that complainant did go to the OP after 14-09-1996 when she was given two injections still the fact remains that within short period of 24 hours of administration of injections the patient started feeling great pain and inflammation in her left arm. It was only possible as a result of injection given by the OP in the arm and not on the hip.
16. So far as decision giving injection is concerned it was decision of OP but might have been given by lower staff and nurses etc. Even if it is given by the doctor and the injection results in some kind of gas gangrene or some infection the inference has to be drawn that the syringe or needle was not sterilized.
17. However, in the given facts and circumstances of the case and for the limited deficiency in not ensuring about the quality and sterilization f the injection material or the syringe being duly sterilized or any other material which resulted in gas gangrene and ultimately amputation of the left arm and not in the death of the deceased, we deem that a lump sum compensation of Rs.50,000/- which shall include cost of litigation would meet the ends of justice."
5. Hence, the present cross Appeals by both the parties.
6. In the light of the afore-stated pleadings and the rival stands of the parties, the question arising for consideration is whether there was any deficiency or negligence on the part of the Treating Doctor in: (i) prescribing the medicines and giving injection(s) without proper diagnosis, and (ii) the cause for gas gangrene, necessitating amputation of the left arm of the Patient, and ultimately leading to her death, was the injections given to her by the Treating Doctor?
7. It is trite that an error of clinical judgment does not per se amounts to negligence. An error of judgment, amounting to negligence, depends on the nature of the error. It is equally well settled that the true test for establishing negligence in diagnosis or treatment on the part of the 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. Hence, before we examine the questions, formulated above, it would be profitable to briefly refer to the basic principles a doctor "must" or "should" bear in mind while treating a patient, be it, in the context of investigations or treatment.
8. A doctor's professional functions may be divided into 3 phases: (i) diagnosis (ii) advice and (iii) treatment. The importance of proper diagnosis cannot be undermined as the patient has so much to loose when there is a wrong or half-baked diagnosis. A diagnostic error results in the patient being denied timely effective therapy, or being administered potentially toxic, incorrect medications sometimes leading to devastating consequences. An equally important key issue in a "right diagnosis" is the "timeliness" and "accuracy". In certain acute situations delay of a few minutes in diagnosis and treatment may be fatal.
9. The Courts in United Kingdom have observed that the primary duty of a medical practitioner is to "diagnose the patient's condition." The duty of a doctor is not only to make enquiries in ascertaining data, but also exercise remarkable professional skill in forming a conclusion from such data. [See: Gibbons v Harris [1924] 1 DLR, 923]. It has been held that failure to exercise due skill in diagnosis, as a result of which wrong treatment was given, amounts to negligence. [See: Everett vs. Griffiths [1920] 3 KB 163.]
10. Hence, it needs little emphasis that proper and timely diagnosis being the key deciding paradigm for the line of treatment of a patient, anything going amiss at that stage is a critical circumstance to determine the question whether or not an error of judgment in treatment of a patient tantamounts to negligence.
11. With this brief prologue on the importance of diagnosis, we advert to the facts at hand. It is manifest from a bare glance at the afore-printed two prescription slips that on both the prescriptions, except for recording of the fever on one of the slips, there is neither any indication of the nature of the ailment the Patient had complained of when she visited the doctor, nor the suspected disease(s) and above all not even advice for the basic preliminary serum, urine, etc. tests, while prescribing the medicines and giving the injections. However, in the written arguments filed in the present proceedings, while rebutting the allegation of any kind of negligence on his part, the Treating Doctor has stated thus:-
"(c) That the wife of the respondent visited the clinic of the appellant for the first time on 14.09.1996 with the complaint of High fever and a feeling of nausea and vomiting.
(d) That on the basis of clinical examination and the assessment of the appellant she was administered an injection on her buttocks, with disposable syringe as was the usual practice of the appellant and some other oral medication was also prescribed to her.
(e) That as 14.09.1996 was a Saturday and the next day was an off day for the clinic of the appellant, 4 doses of the medicine were prescribed to the patient. However, to the surprise of the appellant, the respondent, the husband of Bimla Rani (the patient) insisted that medicine for one day may be given at that time and therefore the medicines for one day were given to her as could be seen from the prescription slip for 14.09.1996.
(f) That the prescription as per the usual practice, was noted on a slip of paper and as the medicines were also given to the patient from the clinic of the appellant and the slip containing the prescription was preserved in the clinic of the appellant for future reference in case of the second visit of the patient.
(g) That the respondent along with his wife again visited the clinic of the appellant in the evening of 14.09.1996 with the complaint that the medicine had no effect and the fever was still high. The appellant informed him that the medicine may take some time to show its effect and there was no need to panic, but he insisted upon some "more effective treatment" and therefore the appellant prescribed and proposed to give two more injections to the patient. However, strangely the respondent this time once again tried to over ride the professional judgment and the line of treatment the appellant decided to adopt and insisted that only one injection be administered to the patient. Therefore the appellant deleted one injection substituting with the oral medication (which takes longer time than an injected medicine to show its effect), administered her one injection on buttocks, and gave the patient some oral medication as well. The appellant administered the injections on the buttocks of the patient and used disposable syringes, taking all the other usual precautions like cleaning the area to be injected with cotton swab soaked in antiseptic solution etc.
(h) That after visiting the appellant on 14.09.1996 evening, the respondent or his wife did not visit the appellant thereafter and it was only on 21.09.1996 that the respondent brought his wife to the clinic of the appellant. The condition of the patient was serious and needed specialized treatment, therefore the appellant advised the respondent to take her to some hospital. The appellant found it unusual that there was swelling in the arm of the patient as there was no reason for the same, as understood by the appellant in the circumstances facts of the case, and on making some detailed inquiries from the respondent, he disclosed that he had got his wife treated at two-three other places as well including one Dr. Tyagi and Dr. Bangali who had administered her injections in the arm and applied local medication as well. The respondent further disclosed that prior to coming to the appellant, he had taken his wife to one Saraswati Memorial Hospital as well.
(i) That while advising the respondent to take his wife to some hospital, the appellant also gave him a slip indicating the medication given to her wife for further reference. Moreover as the wife of the respondent was having some rashes on her body which were previously not there and the Health Department of the Government of Delhi had notified for the information of the Medical Practitioners that the cases of dengue were rampant and that they should keep this possibility in mind while treating the patients, the appellant also mentioned so on the slip dated 21.09.1996 handed over to the respondent."
12. From the afore-extracted submissions, the following crucial facts emerge: (i) when the Patient was taken to the Treating Doctor's clinic, she was running high fever with feeling of nausea and vomiting; (ii) the Patient visited his clinic twice on 14.09.1996 & on 21.09.1996 and on both the occasions he gave her injection and medicines from his clinic itself and though on the second occasion he advised two injections but on the insistence of the Complainant gave only one injection but on the buttocks; (iii) it was only on 21.09.1996 that the Patient had visited his clinic after 14.09.1996 and since her condition was serious, he advised the Complainant to take her to some hospital; (iv) he issued the prescriptions slips indicating the medication given by him to the Patient and (v) the government had notified for the information of the Medical Practitioners that the cases of dengue were rampant and while treating a Patient, they should keep the possibility of dengue in mind, and he had also mentioned this fact on the slip dated 21.09.1996.
13. In the light of the admissions by the Treating Doctor himself, summarized above, we have no hesitation in arriving at the conclusion that the Treating Doctor was seriously amiss in treating the Patient. Apart from the fact that the two prescriptions/slips, printed above, do not show any kind of past history of the Patient and the provisional diagnosis, admittedly, the Treating Doctor did not prescribe any tests to the Patient to diagnose the disease she was suffering from. Had he done so based on the clinical reports, he could review the medication. It is significant to note that though the Treating Doctor was conscious of the government notification about rampant spread of dengue, we fail to understand as to why the Treating Doctor did not advice any clinical test to rule out that the Patient was suffering from dengue. In our view, his negligent act gets compounded from the fact that, when according to the Treating Doctor, the Patient had visited the clinic on 21.09.1996, she had symptoms of the dengue, like high fever, rashes and chills etc. he did not advise even basic investigations to diagnose the disease, so that appropriate medicines could be given to the patient. Dengue infection, as was suspected in the present case, may present as a severe disease, characterized by hemorrhage and shock and, therefore, it was necessary to make rapid diagnosis and to identify the disease, the patient was suffering from. Correct diagnosis and stereotype identification assume a greater importance for the severe form of the disease, since there is no marker that predicts the progression from classic dengue fever to the severe forms of the disease.
14. Manifestly, in the instant case, there was no 'diagnostic dialogue'. The prescriptions/slips do not record any symptoms of the disease nor the advice for even basic clinical tests. Applying the afore-stated concepts to determine the question of medical negligence, on facts at hand, we have no hesitation in coming to the conclusion that the Treating Doctor was clearly negligent in treating the Patient.
15. Having arrived at the said conclusion, we deem it unnecessary to go into the second limb of the allegation of negligence on the part of the Treating Doctor, viz. whether the cause of Gas Gangrene was the injection(s) given by the Treating Doctor to the Patient.
16. The question now surviving for consideration is as to what adequate compensation the Complainant is entitled to for loss of his wife, who was aged only 40 years. As stated above, the State Commission has awarded a lumpsum compensation of ₹50,000/- to the Complainant as against his claim of ₹10,00,000/-. Although in the Complaint it was pleaded that the deceased Patient was earning between ₹3,500/- to ₹4,500/- per month from tailoring etc. but we find that the Complainant did not adduce any cogent evidence in support of the said claim. Therefore, bearing in mind the age of the Patient and the fact that there is no prescribed formula to compute the compensation with mathematical precision, we are of the opinion that the compensation awarded by the State Commission is inadequate. In our view, enhancement of the compensation by a further sum of ₹3,50,000/- would meet the ends of justice, more so when the complaint was filed as far back as in the year 1998. It is ordered accordingly.
17. Resultantly, the Appeal filed by the Treating Doctor (FA No. 208 of 2009) is dismissed and the Appeal filed by the Complainant (FA No. 68 of 2008) is partly allowed to the extent indicated above. The treating doctor is directed to pay to the Complainant a further sum of ₹3,50,000/-, in addition to the amount of ₹50,000/-, which is stated to have already been paid to him, within six weeks from the date of receipt of a copy of this order, failing which, the said amount shall carry interest @ 6% p.a. from the date of filing of the Complaint, till actual realization. The Complainant shall also be entitled to costs, quantified at ₹5000/-.
18. Both the Appeals and all pen ......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER