National Consumer Disputes Redressal
M/S. Handa Nursing Home & Anr. vs Ram Kali (Since Deceased) on 30 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION
PETITION NO.
3932 OF 2012
(From the order dated 06.08.2012 in
Case No. FA-1002/08 of the
State
Consumer Disputes Redressal Commission, Delhi)
1. M/S. HANDA NURSING HOME,
Through Dr. A.K Handa,
(Consultant Surgeon and Urologist)
Regn.No-539/2005-2006,
57,Raja Garden
New Delhi
2. Dr. A.K Handa,
(Consultant Surgeon and Urologist),
S/o Shri C.L Handa,
57,Raja Garden,
New Delhi
...........Petitioners/O.P.s
Versus
RAM KALI (SINCE DECEASED)
Through LRs
1.Shri Suresh Chand (Husband)
S/o Shri Manoharlal Lal
2. Shri Jitendra Kumar Gard
3. Smt. Sushma Rani Mittal
(Daughter)
W/o Sh.
Anil Kumar Mittal
All Residents of
B-13,Shiv Ram Park,
Nangloi
DELHI - 110 041
...........Respondents/Complainant
BEFORE:
HON'BLE MR. JUSTICE K. S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioners :
Ms. Surekha Raman &
Mr. Dileep
Poolakkot, Advocates
For the Respondent No. 1 : Mr. Pawan Kr. Ray,
Amicus Curiae
For Respondent No. 2 & 3 : N E M O
PRONOUNCED ON
30th JANUARY, 2015
O
R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING
MEMBER
This
revision petition has been filed by the petitioners against order dated 06-08-2012
passed by the learned State Consumer Disputes Redressal Commission, Delhi (in
short, the State Commission) in First Appeal No. FA-1002/08 M/s Handa Nursing Home & Anr. Vs. Mrs. Ram Kali through LRs, by which while dismissing appeal,
order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that on
13.3.2006, the complainant- Ramkali felt some pain in
the right side of her abdomen and was taken to Dr. Madan Jain who referred her
to Dr. Saroj Singla for
ultrasound. The ultrasound report was shown to Dr. Madan Jain and Dr. Jain
referred the case to Handa Nursing Home, OP/petitioner. On seeing the ultrasound report, Dr. A.K. Handa diagnosed it as right ureterie
stone and therefore, advised operation through Laser Technology. Consequently on 14.3.2006, she was operated
upon and was discharged on 15.3.2006 from the Nursing Home, though complainant
was suffering from pain but Dr. Handa informed the
family members of the complainant - Ramkali that the
operation had been successful, and the stone had been broken and DJ Stent had
been inserted which was to be removed after one week and the complainant could
be taken to home. Complainant - Ramkali paid Rs. 14,000/- to Handa Nursing Home.
After one week i.e. 24.3.2006, the Stent was removed yet the
complainant/Ramkali kept complaining pain and
temperature. She was readmitted to
Nursing Home i.e. OP/petitioner on 2.4.2006. On the advice of Dr. Handa, once again the stent was inserted in the right side
of the abdomen and complainant - RamKali was
discharged on 3.4.2006. The stent was
removed after 10 days and on 19.4.2006, medicines were changed but despite
this, the condition of the complainant/Ramkali did
not improve and the pain & temperature continued. On 22.4.2006, IVP was conducted by Dr. Handa. The
complainant/Ramkali was once again admitted to the
Nursing Home. The condition of the
complainant/Ramkali became worsened but nothing was
done and it was admitted by Dr. Handa that there was
some negligence on the part of the Nursing Home. When it was very strongly objected by the
members of the family, Dr. A.K. Handa fled away from
the Nursing Home. Faced with the
situation, the complainant/Ramkali was taken to AIIMS
where the Doctors orally called negligence of the Nursing Home as the operation
of Dr. Handa was not conducted properly and there was
lot of negligence and proper care was not taken by the Nursing Home. The condition of the complainant further
deteriorated and was admitted to AIIMS on 27.4.2006 where she remained till
14.5.2006 during which period she was put to dialysis and hemo-dialysis
couple of times. Since there was strike
of doctors in Delhi, complainant/respondent was discharged from AIIMS though
her condition was still critical as both her kidneys were not functioning and
laboratory reports were not showing any signs of normalcy. The complainant/respondent was completely
bedridden and unable to support herself on her own. Alleging deficiency on the part of opposite
parties/petitioners, complainant filed complaint before District Forum. Opposite parties/ petitioners resisted
complaint and denied the allegations and submitted that the
treatment given was nowhere stated to be wrong by the doctors of the AIIMS;
therefore, there was no negligence in administrating the treatment to the
complainant by the doctors. It was
admitted that the complainant visited the OP- Nursing Home along with the
report of the ultra sound of Dr. Saroj Singla on 13.3.2006.
It was further admitted that the complainant was seen on 13.3.2006 by
Dr. A.K. Handa of Handa
Nursing Home and it was diagnosed as right uretery
stone. The doctor never advised
operation through Laser Technology, however, the complainant/petitioner was
advised Ureteroscopy. No operation of
the complainant/petitioner was ever conducted but ureteroscope
was inserted through a urinary passage and a DJ Stent was placed and the
complainant was discharged on 15.3.2006.
It was further admitted that the complainant/respondent visited the
Nursing Home on 24.3.2006 and DJ Stent placed was removed as the complainant
complained of pain and discomfort, which normally occurs in case where DJ Stent
is placed. The complainant/petitioner was readmitted in the Nursing Home on
2.4.2006 with the complaint of pain.
Though no stone was seen yet the DJ Stent was again placed because
sometimes even a very small particle of few millimeters, if remain, could cause
discomfort and pain. The complainant was
discharged on 3.4.2006. Thereafter, the
Stent was removed on 19.4.2006. As the
pain persisted, the IVP was advised on 22.4.2006. Thereafter it was observed that blood urea
and serum creatinine began to rise, the Nephrologist was consulted and the
treatment started as per his advice. The complainant/petitioner left the
Nursing Home on 25.4.2006. It is also
denied that Dr. A.K. Handa left the Nursing Home and
it was remained open. The condition of
the complainant/petitioner did not deteriorate due to any fault in treatment
conducted at Handa Nursing Home. Therefore, by no
stretch of imagination, it can be said that there was any deficiency or
negligence on the part of the doctors of the petitioner and prayed for dismissal of complaint. Learned District Forum after hearing both the
parties allowed complaint and directed opposite party to pay Rs.7 lakh as
compensation including cost of litigation to the complainant. Appeal filed by opposite parties was
dismissed by learned State Commission vide impugned order, against which this
revision petition has been filed.
3. None
appeared of Respondent Nos. 2 & 3 even after service and they were
proceeded ex-parte.
4. Heard
learned counsel for the petitioners and Respondent No. 1 and perused record.
5. Learned
counsel for the petitioners submitted that inspite of proof that treatment
given by the petitioners was as per standard practice, learned District Forum
committed error in allowing complaint and learned State Commission further
committed error in dismissing appeal without considering literature provide by
the petitioner, hence revision petition be allowed and impugned order be set
aside. On the other hand, learned
counsel for the respondents submitted that order passed by learned State
Commission is in accordance with law, hence revision petition be dismissed.
6. The
core question to be decided in this revision petition is whether treatment
given by the petitioner was as per standard practice or not.
7. Perusal
of record reveals that complainant-Ramkali visited
petitioners hospital and she was advised Ureteroscopy and petitioner put DJ
Stent and she was discharged on 15-03-2006 but again she was admitted on
02-04-2006 and another DJ Stent was again placed and was discharged on
03-04-2006. Record further reveals that
after removing Stent on 19-04-2006, as pain persisted, IVP was advised on
22-04-2006 and as blood urea and serum creatinine began to rise, the
Nephrologist was consulted and treatment started as per his advice. It appears that later on complainant left
Nursing Home on 25-04-2006 and consulted AIIMS. As per report dated 06-07-2006
of AIIMS complainant was earlier discharged on 13-05-2006 with twice weekly MHD
at outside. In report dated 06-07-2006 it has further been mentioned that
patient did not follow instructions and took Ayurvedic medicine and one HD. On 26-07-2006 she was discharged with advice
for twice weekly MHD at any suitable center.
8. District
Forum sought expert opinion on certain queries from AIIMs and Medical Board of
six members replied queries as under:--
"In reply to the above queries, Medical Board
constituted by the Media Supdt., AIIMS, which
consists of six members has replied as under:
(1) The patient
Ram Kali had pain in the right flank on 13.3.2006. Ultrasonography revealed normal left kidney
and hydronephrosis of the right kidney. The renal functions as assessed by blood urea
and creatinine were within normal limits.
It may be mentioned here that the glomerular filtration rate or GFR
(which is the actual measure of renal function) was about 50 ml/min by both the
Cockcroft-Gault and the MDRD formula (normal 80-120
ml/min). This was calculated by us from
the available records. Prior to the
first intervention on 14.3.06, there was a lack of a function study (e.g.
Intravenous Pyelography IVP or Nuclear Scan).
Further, the diagnosis of a stone was based only on an ultrasonogram, which is an observation dependent imaging
study. Hence, performance of a plain
X-Ray/Non-contrast CT KUB, and a functional study would have been advisable
prior to operative intervention. As per
the hospital records, during Ureteroscopy on 14.3.2008, a stone was seen in the
right ureter, which was broken into small pieces and a double J Stent was put
in place.
(2). The treatment given was as per standard practice. Details of our observations are given in
paragraph I above.
(3) Before
re-stenting was done for a second time on 2.4.2006, it would have been
advisable to confirm the presence of persisting destruction by repeating ultrasonogaphy of the kidneys, ureter and bladder. This would have substantiated the need for
re-stenting.
(4) A functional
study IVP was done on 22.4.06 after documenting apparently normal renal
functions as evidence by blood urea and creatinine within normal limits. 50 ml of the radio-contrast omnipaque was administered.
This is as per standard procedure.
However, calculated GFR was again approx. 50 ml/min. In this connection we would like t state that it is now known that serum creatinine is a
poor surrogate mark of renal function. Renal functions are best assessed by
GFR. However, the practice
of estimating GFR prior to performing IVP is still not the standard practice
in India
or even internationally. IVP showed
non-functioning right kidney and sub-optimally functioning left kidney. As already mentioned, the
calculated GFR on two occasions prior to performing IVP too showed
sub-optimally functioning kidneys.
Thus, it is highly likely that the patient had pre-existing early
chronic kidney disease affecting both the kidneys.
(5). The patient also had underlying infection (as evidenced by
high leukocyte count). The combination of pre-existing chronic kidney disease with
contrast administration and infection lead to gross renal dysfunction, which
became evident on 25.4.06.
(6). Subsequently, it was a progressive downhill course from
which the renal functions never recovered and the patient became dialysis
dependent.
9. In
reply to query no. 2 it has been specifically mentioned that treatment given was as per standard
practice. In reply to query no. 4 it
was further mentioned that
after functional study
IVP was
done on 22-04-2006 and treatment
administered was as per standard procedure.
In reply to query no. 4 it was further observed that renal functions are
best assessed by GFR but in the second sentence admitted that the practice of estimating GFR prior to
performing IVP is still not a standard practice in India or even
internationally.
10. When
earlier treatment given was as per standard practice and GFR study was not standard
practice in India or even internationally then merely by not estimating GFR, it cannot be held
that petitioner was negligent in giving treatment.
11. Expert
committee in reply to query no. 1 observed that performance of a plain
X-ray/non-contrast CT KUB and functional study would have been advisable prior
to operative intervention. Learned
counsel for the petitioner has placed reliance on the British Journal of
Radiology of 74 (2001), 901-904 in which Article of M. Patlas
& Ors. was published, in which it was quoted as
under:--
In summary, both
spiral CT and US were found to be excellent modalities for depicting ureteral
stones, but because of high cost, radiation dose and high workload of CT, we
suggest that US should be performed first in all cases and CT should be
reserved for cases where US is unavailable or fails to provide diagnostic
information.
12. in
the case in hand AIIMS report reveals that as per hospital record during
Ureteroscopy done on 14-03-2006 a stone was seen in the right ureter, which was
broken into small pieces and DJ stent was put in place. When stone was visible
and it was broken into pieces there was no necessity to go for spiral CT. Learned counsel for the petitioner has also
placed reliance on Article of Seong Jin Park and ors. published in 2008 by the
American Institute of Ultrasound in Medicine, J. Ultrasound Med 2008;
27:1441-1450 . 0278-4297/08/$3.50, in which it was observed as under:--
In summary, sonography
is an excellent modality with many advantages for detecting ureteral stones; it
is radiation free, relatively inexpensive, universally available, and easily
applicable, and it has high diagnostic efficacy. Specific techniques for preparing the patient
before scanning, new sonographic equipment, compression techniques, and
additional intracavitary scanning can enhance the diagnostic accuracy and
confidence for detecting ureteral calculi on sonography.
13. In
the light of aforesaid articles and costs of other tests, petitioner has not
committed any negligence in not going for plain X-ray/non-contrast CT KUB
study of GFR prior to giving treatment. Expert Committee has also indicated
that these tests would have been advisable prior to operative intervention but
nowhere mentioned that without these tests petitioner committed deficiency in
giving treatment to Ramkali.
14. Expert
Committee in reply to query no. 4 observed that it was highly likely that
patient had pre-existing early chronic kidney disease affecting both the kidneys
which lead to gross renal dysfunction.
Expert report nowhere indicates that treatment given by the petitioner
was not as per standard practice.
15. It
appears that on account of not following instructions given by AIIMS and taking
Ayurvedic medicine, complainant developed further complications.
16. During course of arguments it was apprised that complainant
Ramkali died on 01-11-2009 meaning thereby after
more than 3 years of treatment given by the petitioner. Complainant has not put any record of
treatment for this period. Complainant
has also not placed on record cause of death of Ramkali
and in such circumstances, it cannot be presumed that on account of medical
negligence of petitioner, Ramkali suffered, which
caused her death.
17. Learned
counsel for the petitioner also placed reliance on judgment of Honble Apex
Court in (2010) 3 SCC480 Kusum Sharma & Ors.
Vs. Batra Hospital and Medical Research Center &
Ors., in which it was observed that negligence, cannot be attributed to a
Doctor so long as he performs his duties with reasonable skill and
competence. It was further observed that
merely because the doctor chose one course of action in preference to other one
available, he would not be liable if the course of action chosen by him was
acceptable to the medical profession. In
the case in hand as per AIIMS report, treatment given by the petitioner to the
complainant was as per standard practice and treatment given after IVP study
was also as per standard procedure. No
negligence can be attributed on the part of the petitioner in performing his
duties with reasonable skill and competence.
18. In
the light of aforesaid discussion it becomes clear that no negligence can be
attributed on the part of petitioner in giving treatment to Ramkali
and learned District Forum committed error in allowing complaint and learned
State Commission further committed error in dismissing appeal and revision
petition is to be allowed.
19. Consequently,
revision petition filed by the petitioner is allowed and order dated 06-08-2012
passed by State Commission in First Appeal No. FA-1002/08
M/s Handa Nursing Home & Anr.
Vs. Mrs. Ram Kali through LRs and order of District Forum dated 29-09-2008
passed in Complaint case No. 306/2006 Ram Kali through LR Vs.
Handa Nursing Home is set aside and complaint stands
dismissed with no order as to costs.
Sd/-
.....
(K. S. CHAUDHARI, J) PRESIDING MEMBER aj