State Consumer Disputes Redressal Commission
Jai Prakash Sharma vs M/S Sunrise Clinic Pvt. Ltd., on 8 December, 2006
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision : 08-12-2006 Complaint No. C-358/1997 Shri Jai Prakash Sharma - Complainant S/o Shri Narain Singh Through R/o House No. 522, Chirag Delhi, Mr. Raj Singh, New Delhi. Advocate. Verses 1. M/s Sunrise Clinic Pvt. Ltd., - Opposite Party No.1 Proprietor of South Point Hospital, Through G-48, Masjid Moth, Mr. R.K. Kaushik with Greater Kailash-II, Rachit Devgun, New Delhi. Advocates. 2. Dr. S. Mohan, - Opposite party No.2 G-48, Masjid Moth, Greater Kailash II, New Delhi. 3. Dr. A.K. Gupta, - Opposite Party No.3 South Point Hospital, G-48, Masjid Moth, Greater Kailash II, New Delhi. CORAM: Justice J.D. Kapoor, . President Ms Rumnita Mittal . Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. to be referred to the Reporter of not ?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Through this complaint, the complainant has on account of negligence on the part of OPs in conducting the operations on his daughter for removal of worms from the stomach resulting in her death has claimed Rs. 7 lacs as compensation on different counts.
2. allegations of the complainant, in brief, are that he approached the OP-1 hospital i.e. South Point Hospital for treatment of his young daughter Shobha aged about 18 years on 21.8.97 because she was suffering from stomach pain.
The doctor of abovesaid hospital checked and told the patient on 22.8.97 that she was in a serious condition and would be completely cured after conducting the operation for removal of the worms. On 23.8.97 doctors of the hospital viz. Dr. S. Mohan and Dr. Ashok Gupta under the supervision of Dr. Ajit Gauba and some other doctors and staff of the hospital conducted the operation of the daughter of the complainant although operation was not at all necessary, because the said deceased could be cured after providing the appropriate medicines for the said stomach pain and for removal of the worms from the stomach.
3. That the daughter of the complainant was discharged by the OP-hospital on 30.8.97 although she was in dangerous condition. On 2.9.97 at about 9 p.m. when the patient was feeling acute stomach pain, the complainant contacted doctor Ashok Gupta and told him that the condition of his daughter who was operated upon by him and discharged from the hospital on 30.8.97 was pathetic as she was crying due to acute pain in her stomach. Dr. Ashok Gupta (OP-3) refused to do anything in the matter and suggested that if the patient was not well then the complainant could get her admitted in any hospital. Thereafter the complainant approached All India Institute of Medical Sciences, New Delhi and the patient was admitted there immediately. The doctors of the AIIMS, New Delhi informed that the operation of the patient had not been properly conducted and therefore she was in a very dangerous condition. She ultimately died as it was opined that due to wrong operation she could not survive.
The complainant had paid a sum of Rs. 31,413/- to OPs and had also spent huge amount of Rs. 50,000/- on medicines, conveyance etc. during the period from 22.8.97 to 30.8.97 and had also spent Rs. 1,00,000/- during the period of treatment in AIIMS, New Delhi since 2.9.97 to 22.9.97.
The complainant also lodged a report with the police against the OPs at Police station, Chitranjan Park, New Delhi. Since the daughter of the complainant had died due to conducting the wrong operation, OPs were severally and jointly liable to pay the expenses of Rs. 2,00,000/- and compensation of Rs. 5,00,000/-.
4. The defence of the OPs, in brief, is that after examination of the patient by OP-2 Dr. Shashi Mohan, MBBS, DTCD,MRCP(UK) the patient was admitted with provisional diagnosis of acute abdomen, intestinal obstructions(TB) and on further examination the patient was found to be toxic, his pulse rate was 98 per minute, blood pressure was 80/60 and abdomen was distended with guarding and rigidity bowel sounds were absent and the doctor advised following treatment:
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Nil orally
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IV fluids
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IV antibiotics
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Input and output charting and to watch for vitals and accordingly, resident doctors and nurses were instructed
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Patient condition was observed regularly and also got noted at regular intervals and 4 p.m. on 21.8.97 patient was catheterized as patient did not pass urine and a reference was sent to Dr.K. Madan, an eminent gynecologist who is Honorary Consultant to President of India. At 5.45 p.m. on same date, case/patient was seen by Dr. K. Madan. She advised to follow the same treatment as were being given and also further advised for ultrasound of abdomen and urine culture and her clinical impression was that the patient is suffering from abdominal tuberclosis(TB) with secondary infection.
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The ultrasound was performed by Dr. D.P. Kohli, M.D. Radiodiagnosis on 22.8.97 and as per his report, patient was having TB abdomen with intestinal obstructions.
5. that Dr. Shashi Mohan prescribed treatment for abdominal TB and accordingly treatment was started and patient was regularly monitored by Resident Doctor. On 23.8.97 OP-Dr. Shashi Mohan examined the patient and found that the condition of the patient was not improving. He advised to put nesogastric tube and also referred the case for opinion of Surgeon namely OP-3 Dr. Ashok Gupta after getting an X-ray of abdomen in erect view. Dr. Ashok Gupta examined the patient. His observations were as under:-
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General condition not good, toxic pulse rate 110 per minute, temperature 99.4 degree, abdomen distended with guarding and rigidity of whole abdomen with dullness present
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Liver dullness marked, bowel sound absent
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A clinical observation of acute abdomen with perforation of small bowel was made.
He advised-Nil orally for arrangement of 2 units of blood after seeking high risk consent.
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immediate surgery(laparatomy) after further investigations
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prognosis of surgery and nature of illness with consequences were explained to the father of the patient and a reference to the anesthetist was sent for P.A.C. On 23.8.97 at 5.30 p.m. the abdominal operation was performed by team of doctors namely Surgeon 1. Dr. Ashok Gupta, MS
2. Dr. Anita Gupta, MD Anesthetists 1. Dr. Sharad Srivastava, MD Anesthesia
2. Dr. Rajesh Sharma, MD, Anesthesia During operation the following operation notes were made-
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exploratory laprotomy for perforation. Right paramedian incision given, thickened peritoneum with tubercles opened
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air & bile mixed fluid came out of abdomen with faecal smell
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whole bowel adherent compactly without any mental presence
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a small perforation of about 3 mm present in caecum which has allits posterior/lateral walls adherent to main bowel mass
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liver full of tubercles
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bowel cannot be separated because there were chances of tears
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caecal perforation dealt with in the form of caecostomy
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good peritoneal wash given with betadine & saline
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abdomen closed in layers with prolene and with tube drainage
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prognosis and gravity of operation and disease explained to the father and relatives
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it is pertinent to mention here that the father of the patient was called inside after change of his clothes for entry into operation theatre as an exception to the rule in order to show him as to what was inside the abdomen so that he may know the facts.
Post operationally the patient was monitored by Surgeon, Anesthetists and Resident Doctors round the clock and appropriate medical treatment was administered.
6. On 24.8.97 anti tuberculosis treatment was administered by Ryles tube in consultation with OP-2 Dr. Shashi Mohan. One unit of blood was transfused because patients hemoglobin was 8.4 gms. And PCV 27%. Consequently patient started showing signs of improvement and recovery, the same was noted. All the post operational measures were taken. Her vitals were observed and noted and steps were taken accordingly. On 27.8.97 the patient passed flatus and the same treatment was continued. At 8.30 p.m. Dr. Ashok Gupta advised to remove Ryles tube and allowed clear liquid to be given orally. On 28.8.97 Dr. Ashok Gupta advised to discontinue IV antibiotics and encourage the patient to take orally. At 2.40 p.m. patient took orally and was feeling better. There was no fever, the same facts were recorded in the case sheet. On 29.8.97 the patients abdomen became non-tender. Her appetite increased and patient passed motion. The patient was seen by Dr. Shashi Mohan as there was little swelling in both of her feet for which Dr. Shashi Mohan diagnosed as hypoprotenemia and advised injection hermin and high protein diet. Patient passed urine and stool and took orally and was comfortable with no fever.
That on 30.8.97 Dr. Ashok Gupta saw the patient at 10.00 a.m. and found the patient having little fever but improved and stable. Father of the patient i.e. complainant approached OP-3 Dr. Ashok Gupta for discharge stating that the patient had improved and had started taking orally and passed flatus, motion and urine in previous days. OP-3 Dr. Gupta advised him against the discharge of the patient but the father of the patient insisted hard on the financial grounds as he was not in a position to meet the expenses and assured that he will look after the patient at home.
Op-3 Dr. Ashok Gupta explained the consequences of taking the patient to home and also the risk factor involved as the drainage tube was still attached in the abdomen and further stated that it would not be possible to provide the patient proper treatment outside the hospital. Thereafter Dr. Ashok Gupta discharged the patient on the request of her father and prescribed the follow up treatment. After the discharge the patient never came back to the hospital.
8. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
9. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
10. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369.
Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess.
The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4)The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
11. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
12. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
13. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
After according careful consideration to the rival claims of the parties as well as scanning the documents produced by the parties we find that the initial allegation against the OP is that the patient was admitted on 21-08-1997 and was operated upon on 23-08-1997 and was discharged after a week i.e. 30-08-1997, but immediately after two days of operation she developed acute pain in her stomach and taken to OP-Hospital but OP-Hospital did not attend to her and asked her to go to some other hospital. On 03-09-1997 she was taken to All India Institute of Medical Sciences (AIIMS) where she remained admitted for 17 days as considerable amount of puss was collected in the stomach that it had to be drained out every day and ultimately she succumbed on 22-09-1997.
14. It is not understandable as to why she developed such complication that immediately after two days of her discharge from the OP-Hospital she had to go again there but was asked to go to some other hospital and she was taken to AIIMS where for 17 long days the puss was drained out daily as it collected to such an extent that she could not survive.
15. The main defence of OP No.1 is that she was discharged against medical advice and she never returned and therefore there was no medical negligence on the part of OP No.1 in treating the complainant.
16. We find it very difficult to accept this contention. Even if we assume that the complainant had not gone to the OP-Hospital after discharge from there, may be that after having remained for a week and getting operated upon by the OP No.1 Hospital she again within two days suffered acute pain and taken to AIIMS where the puss was drained out every day for 17 days that ultimately caused her death.
17. In order to show the medical negligence of the doctor or the nursing home it is not necessary that in every case expert opinion should be taken. Sometimes inferences are to be drawn from the post operative complication. It is also not necessary that operation may be faulty but post-operative care may be so wanting that it is likely to cause severe complications. The very fact that puss was collected in such a huge quantity that it could not be drained out for 17 days even. The only ineluctable inference or conclusion that can be drawn from this circumstance is that of medical negligence. Again the circumstance of the complainant having remained in OP-hospital for a week shows that she was operated upon in faulty manner as she again developed some pain within two days when she was taken to AIIMS.
19. In the given facts and circumstances of the case, we allow the complaint and in our view compensation of Rs. 2 lacs besides Rs. 25,000/- as cost of litigation and mental agony etc. shall meet the ends of justice. Payment shall be made within one month.
20. However, since we have held OP No. 1and 2 guilty for medical negligence and OP No.1 and 2 had insured themselves with OP-National Insurance Company Limited, the National Insurance Company Limited is liable to compensate complainant being the direct beneficiary of the insurance of OP No. 1 & 2 though contract of insurance was between the hospital and the Insurance Company. Hospital or doctor had obtained the insurance against account of medical error or any other thing and or any other act of omission or commission on their part for the benefit of the patients they undertake to treat. 21. Complaint is disposed of in aforesaid terms.
22. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to record room.
23. Announced on 08-12-2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj