State Consumer Disputes Redressal Commission
Gulshan Bala vs 1. Post Graduate Institute Of Medical ... on 6 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 01 of 2013 Date of Institution : 01/01/2013 Date of Decision : 06/09/2013 Gulshan Bala w/o deceased i.e. Sh.Anil Kumar, resident of House No. 512, Inside Killa, Village Maloya Chandigarh (UT). Complainant V e r s u s 1. Post Graduate Institute of Medical Education and Research (P.G.I.M.E.R, Chandigarh) through its Director. 2. Director, Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh and also Head of the Committee constituted to enquire into the complaint given by the complainant regarding death of her husband due to negligence of Doctors, Nurses, other Paramedical Staff, Illegal Strike etc. (deleted vide order date16.01.2013) 3. Dr. Jayanta Samanta, Junior Resident, (posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. 4. Dr. Anoop R. Prasad, Senior Resident, (posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. 5. Dr. Rimi Som, Senior Resident, (posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. 6. Dr. Nipun Verma, Junior Resident, (Department of Internal Medicine) (posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. 7. Dr. K.K. Parathan, Junior Resident,(posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. 8. Mr. Hitendra Sharma, Staff Nurse (Department of Nursing) (posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. 9. Ms. Kirandeep Kaur, Staff Nurse(Department of Nursing) (posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. 10. Ms. Ashwinder Kaur, Staff Nurse (Department of Nursing) (posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. 11. Mr. Kuldeep Singh Solanki, Staff Nurse (Department of Nursing) (posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. 12. Mr. Satya Prakash Staff Nurse (Department of Nursing) (posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. 13. Dr. Ashish Bhalla, Associate Professor, Incharge Emergency, (posted in Emergency Medical OPD on 3.3.2011) in Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER
Argued by: Sh. Deepak Aggarwal, Advocate for the complainant.
Name of Opposite Party No.2 deleted vide order dated 16.01.2013.
Sh. Rajesh Garg, Advocate for Opposite Parties No.1 and 3 to 13.
JUSTICE SHAM SUNDER (RETD.), PRESIDENT This complaint has been filed by the complainant, alleging that due to the medical negligence, on the part of the Opposite Parties, in treating her husband i.e. Anil Kumar, he died on 03.03.2011, in the Post Graduate Institute of Medical Education and Research Sector-12, Chandigarh (hereinafter to be referred as the PGIMER only).
2. The facts, in brief, are that the husband of the complainant Anil Kumar (now deceased), had the history of heart disease, since 2009. On 03.03.2011, at around 9.30 a.m., Anil Kumar (now deceased), complained of shortness of breath (SOB) with respiratory rate 24 per minute, and pain in the chest, whereupon he was taken to the Emergency Medical OPD (Hall-A), PGIMER/Opposite Party No.1, for medical checkup. It was stated that when Anil Kumar (now deceased), was taken to the Emergency Medical OPD (Hall-A), of the PGIMER, nobody attended him, or bothered to record the complaint of the complainant, with regard to the same. It was further stated that the previous medical record of Anil Kumar (now deceased), was shown to Opposite Party No.3, who only recommended him for ECG, and did not give any first aid to him, for shortness of breath like oxygen etc., which was very essential at that stage. It was further stated that, due to that reason, life threatening situation stood created, which further aggravated the medical condition of Anil Kumar (now deceased). It was further stated that the Opposite Parties, prima facie, should have easily concluded, at the relevant point of time, that it was a case of Myocardial Ischemia and for prevention of Myocardial Infarction/Heart Attack, they should have started the treatment, immediately, for the same, as the first step, but, they failed to do so. It was further stated that the ECG report confirmed that Anil Kumar (now deceased), had Myocardial Ischemia evolving Myocardial Infarction. It was further stated that the ECG of Anil Kumar (now deceased), also reflected that there was S.T. Segment depression, in the leads V5 and V6, which went in favour of left Ventricular Ischemia.
3. It was further stated that mortality from Myocardial Infarction was greatest, within the first 2 hours, after the onset of symptoms, and could be significantly reduced by rapid transportation to the Hospital. It was further stated that, as per the Washington Manual of Medical Therapeutics, Department of Medicine Washington University School of Medicine St. Louis, Missouri, edited by Charles F. Carey, M.D. Hans H.Lee, M.D. Keith F. Woeltje, M.D. Ph.D. Editors Robyn A. Schaiff, Pharam. D Associate Editor for Pharmacotherapeutics, the diagnosis of Myocardial Infarction required presence of atleast two criterias i.e. (i) a history of prolonged chest discomfort or anginal equivalent. (ii) ECG changes consistent with ischemia or necrosis, or (iii) elevated cardiac enzymes. It was further stated that, in the case of Anil Kumar (now deceased), there were positive findings of dyspnea, pain accompanied by S.T. Segment Depression suggestive of Myocardial Ischemia evolving Myocardial Infarction. It was further stated that, in such like cases, the following steps should have been taken by the Opposite Parties, which they failed to do so:-
(a) Repeated/ Serial Electrocardiography: ECGs should have been obtained on admission in the cardiac care unit and should have been repeated for evaluation of recurrent chest pain or arrhythmias because majority of patient will demonstrate changes on serial ECGs.
b) Cardiac Enzymes: The serum levels of various cardiac enzymes progressively increase as myocardial necrosis evolves. Hence, blood tests for below given should have been carried out of the deceased by the Opposite Parties:-
(i) Creatine Kinase.
(ii) Cardiac troponins.
(iii) Lactat dehydrogenase (LDH) (iv) Use of cardiac enzymes. 4. It
was further stated that, no treatment of Myocardial Infarction was given to Anil Kumar (now deceased), for the initial management of the same, resulting into his death. It was further stated that towards initial management of patients, with Myocardial Infarction, the Opposite Parties were also required to take the following steps:-
a) Rapid triage to Reperfusion Therapy
b) General Measures
c) Adequate Analgesia
d) Sublingual Nitroglycerin
e) Antiplatelet Therapy With Aspirin
f) Anticoagulation with Heparin
g) Beta-adrenergic antagonists
h) Oxygen therapy,
i) Reperfusion Therapy
j) Thrombolytic Therapy
k) Streptokinase etc.
5.
It was further stated that, in the case of Anil Kumar (now deceased), even Primary Health Centre Level care had not been provided. It was further stated that, on 03.03.2011, in the Emergency Medical OPD, where Anil Kumar (now deceased), was got admitted, after Herculean efforts, no proper treatment was given to him, also due to the reason that there was quarrel, heated arguments and altercation, between the attendant of another patient i.e. Gurmeet Singh 39/Male CR No.01595920, and Staff Nurse namely Ms. Kirandeep Kaur i.e. Opposite Party No. 9 and Opposite Party No.8 namely Mr. Hitendra Sharma, as a result whereof, most of the work, in the Emergency Medical OPD came to standstill. It was further stated that due to the abovesaid altercation, and heated arguments, at around 11.40 a.m., Opposite Parties No.8 and 9, called up their colleagues, and other Doctors posted and present, in the emergency ward of Opposite Party No.1 Institute, to join them, as a result whereof, there was a strike, which continued upto around 2.00 p.m., until the attendant of abovesaid Gurmeet Singh, under the constrained circumstances apologized, in the interest of public at large/patients, and in order to oblige Opposite Parties No.3 to 13. It was further stated that due to the abovesaid strike by the Opposite Parties, Anil Kumar (now deceased), was not properly monitored, neubilization was not provided and the vitals of the deceased were not maintained, which was evident from the vital chart, as the same reflected that, at 10.00 a.m., only Respiratory Rate, Blood Pressure, Pulse, Temperature had been recorded and, thereafter, till the death of Anil Kumar, Opposite Parties No. 3 to 13 were totally negligent, in maintaining the same, every half hourly or hourly. Further despite the fact that Respiratory Rate was 24 per minute at 10.00 a.m., no steps were taken, and even Oxygen was not given by Opposite Parties No.3 to 13, to Anil Kumar (now deceased), which amounted to serious deficiency in service.
6. It was further stated that between 11.30 a.m. to 12.00 noon, on 03.03.2011 at Emergency Medical OPD of Opposite Party No.1 Institute, injection Azithromycin, via Intravenous Infusion was given to Anil Kumar (now deceased), in a great hurry by Opposite Parties No.8 and 9, without any test dose, which according to the literature was necessary and essential, due to ongoing heated arguments, between the attendant of the aforesaid namely Gurmeet Singh, and Opposite Party No.9. Soon after the infusion of the said injection, Anil Kumar (now deceased), started turning blue and his condition became extremely serious and rapidly deteriorated. At this stage, the complainant contacted the Doctor, on duty, i.e. Opposite Party No.3, and brought the serious condition of Anil Kumar (now deceased), to his knowledge and the fact regarding his turning blue, soon after the infusion of Azithromycin, but he told her, that the work would only resume, once the attendant of the patient namely Gurmeet Singh apologized, in the full public view. Thereafter, in order to save her husband, the complainant ran from pillar to post, and left no stone unturned, to convince the Doctors and Paramedical Staff, on duty, which included Opposite Parties No.3 to 13, to attend Anil Kumar (now deceased), but her grievance was not redressed, as a result whereof he (Anil Kumar) died. On resumption of work, the Opposite Parties tried to revive Anil Kumar (now deceased), as an eyewash measure, by way of Cardio Pulmonary Resuscitation (CPR), but, ultimately, he was declared dead by 4.00 p.m., on 03.03.2011, by the Opposite Parties, although he had already died, between 2 to 2.30 p.m., on 03.03.2011.
7. It was further stated that when Anil Kumar (now deceased), was very critical, he was examined by the Senior Resident Cardiology, who kept open three possibilities:-
a. Pulmonary Edema b. Anaphylectic reaction to IV Azithromycine, c. Status Asthmaticus It was
further stated that, thus, it was amply clear that 2nd possibility kept by the Senior Resident Cardiology, was Anaphylectic reaction to IV Azithromycine. In such an eventuality the treatment as per the universally accepted Medical Protocol for anaphylaxis should have been given by the Opposite Parties, to Anil Kumar (now deceased) but they failed to do so, and, as such, they (Opposite Parties), were totally negligent in not giving the same. It was further stated that CFL report (Annexure C-3) and finding of the Viscera Report (Annexure C-4) clearly transpired that Anil Kumar died due to acute Myocardial Infarction. It was further stated that for acute Myocardial Infarction, no treatment had ever been given by the Opposite Parties. Immediate cause of death had also been stated in Form No.4 (Annexure C-5), to be Cardio Genic Shock.
8. It was further stated that bare perusal of the inquiry report (Annexure C-6) reflected that the Chairman, Members and the Coordinator included Dr. Y. Chawla(Chairman and Director of PGIMER, Chandigarh), Dr. Sanjay Jain, Dr. Ajay Bahl and Dr. Ashok Kumar as Members. It was further stated that the inquiry conducted by the said Doctors, was totally biased. It was further stated that the said Doctors should have rescued themselves, from participating, in the same, because the allegations of medical negligence had been leveled against Opposite Parties No. 2 to 13. Opposite Party No.2, himself, participated in the Inquiry and became the Chairman, for hushing up the matter. It was further stated that the matter, in question, also related to the negligence of the Doctors, from Cardiology Department, and also from the Department of Internal Medicine. Dr. Sanjay Jain, being the Senior Doctor of Internal Medicine and Dr. Ajay Bahl, Senior Doctor, from the Department of Cardiology of PGIMER, should not have participated, as Members of the said Committee. It was further stated that Dr. Ashok Kumar also from the PGIMER should have rescued, himself, from participating in the matter. It was further stated that the matter should have been referred to the Medical Council of India or some other Institute of repute, including AIIMS New Delhi etc, for conducting the inquiry. It was further stated that, thus, the findings of the Inquiry Committee are arbitrary, and nonest in the eye of law. It was further stated that Anil Kumar was aged about 45 years, at the time of his death and he was the sole bread earner of the family. It was further stated that Anil Kumar was earning Rs.1,75,000/- annually, from Private tuitions. It was further stated that the complainant is the widow of Anil Kumar and is not employed anywhere. Even her children are not settled. It was further stated that a lot of mental agony and physical harassment was suffered by the complainant and her children. It was further stated that the Opposite Parties were many a time asked to compensate the complainant, but they failed to do so. It was further stated that the aforesaid acts of the Opposite Parties, clearly proved their medical negligence, which amounted to deficiency, in rendering service. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay compensation, to the tune of 42.00 lacs, on account of loss of future income, after the death of her husband; mental agony, physical harassment, financial loss, caused to her; and cost of litigation, to the tune of Rs.1,35,000/-.
9. Opposite Parties No.1 and 3 to 13, in their joint written version, pleaded that the Consumer Complaint was not maintainable, as the complainant had not approached this Commission, with clean hands. It was stated that Anil Kumar (now deceased), was brought to the PGIMER, with a severe heart and chronic lung diseases, which required multiple hospitalizations, during the months of December 2010 and January 2011. Anil Kumar (now deceased), was brought to the Emergency OPD (EMPOD) of PGIMER on 03.03.2011 and was immediately attended by Dr.Jayanta Samanta (Opposite Party No.3). It was further stated that Anil Kumar (now deceased), was immediately started on oxygen and nebulization therapy (salbutamol every 10 minutes). Injection hydrocortisone, was given to him, to take care of his life threatening hypoxia. It was further stated that diuretics were given to Anil Kumar (now deceased), in view of the underlying chronic cardiac failure. It was further stated that irregular fast heart rate (atrial fibrillation with fast ventricular rate) was observed in the patient. It was further stated that, in the absence of acute retrocternal chest pain, and no EGC evidence of myocardial ischemia/infraction, a clinical diagnosis of the same (myocardial ischemia/infraction) was difficult. It was further stated that, in a diagnosed case of dilated cardiomyopathy in shock, the circulation to all vital organs, including heart, kidney and brain was compromised, which further enhanced development of cardiac arrhythmias, like atrial fibrillation with fast ventricular rate. It was further stated that, as such, such patients, before death exhibited evidence of ischemic damage to these vital organs, clinically or on pathology. It was admitted that, on 03.03.2011 there was an altercation, between the attendants of another patient and the Staff Nurses i.e. Opposite Parties No.8 and.9, but at no point of time, any patient, in the emergency ward suffered due to that. It was further stated that injection Azithromycine, which was prescribed to Anil Kumar (now deceased), to take care of acute bacterial infection, was instituted between 11.30. am to 12.00 noon, on 03.03.2011, when he was admitted, in the PGIMER. It was further stated that the said injection was given, in the form of infusion (100 ml) over 20-30 minutes, and never as a bolus. It was denied that the said injection was given in a great hurry, to Anil Kumar (now deceased). It was further stated that Anil Kumar (now deceased), was already receiving inj. Hydrocortisone (steroids) for acute exacerbation of COPD, which further decreased the chances of anaphylaxis, due to any drug. It was further stated that the condition of Anil Kumar (now deceased), deteriorated, because of the worsening cardiac rhythm (atrial fibrillation with fast ventricular rate), which was documented or confirmed by Dr. Kiran, Senior Resident of Cardiology. It was further stated that, as soon as complication was detected, immediate resuscitative measures were taken by Opposite Party No.3 and Dr. Kiran, Senior Resident of Cardiology, who were present at the bedside of Anil Kumar (now deceased), at all the time. It was further stated that Dr. Kiran, Senior Resident of Cardiology, kept the possibility of pulmonary edema, status asthmaticus/acute exacerbation of COPD, for which inj. Lasix, and hydrocortisone, including oxygen and nebulisation therapy was administered to Anil Kumar (now deceased). It was further stated that the possibility of anaphylactic reaction to Azithromycine was considered, due to the fact that the condition of Anil Kumar (now deceased), apparently worsened, after the same was instituted. It was further stated that this was a remote possibility, as far as treatment of anaphylaxis, included aqueous epinephrine, and administration of the same, in a patient of dilated cardiomyopathy with atrial fibrillation with fast ventricular rate, could have resulted in further cardiac compromise. It was further stated that weighing the risk, benefit ratio and the remoteness of the possibility of anaphylaxis due to injection Azithromycine, injection epinephrine was not considered either by Opposite Party No.3, Dr. Vijay Noel, Senior Resident of EMOPD and Senior Resident Cardiology, who attended Anil Kumar (now deceased). It was further stated that the immediate cause of death of Anil Kumar (now deceased), was stated as cardiogenic shock, due to atrial fibrillation with fast ventricular rate, in his chronically damaged heart, due to dilated cardiomyopathy with left ventricular systolic dysfunction (ejection fraction=22%). It was further stated that in a diagnosed case of dilated cardiomyopathy in shock, the circulation to all the vital organs including heart, kidney and brain compromised, which further enhanced the development of cardiac arrhythmias like atrial fibrillation with fast ventricular rate. It was further stated that the patient pre-terminally/after death exhibited evidence of ischemic damage to the vital organs, aforesaid, on pathology. It was denied that Anil Kumar (now deceased), was not given any first aid or medical therapy at the outset. It was further denied that, on account of the medical negligence of the Opposite Parties, Anil Kumar died. The remaining averments, were denied, being wrong.
10. The complainant, in support of his case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.
11. The Opposite Parties, in support of the averments contained in the written version, submitted the affidavit of Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, by way of evidence, alongwith which, a number of documents were attached.
12. We have heard the Counsel for the complainant, Opposite Parties No.1 and 3 to 13, and have gone through the evidence and record of the case, as also the written submissions, submitted by them, carefully.
13. The Counsel for the complainant, submitted that Anil Kumar (deceased), was brought to the PGIMER, on 03.03.2011, at about 9.30 a.m., with the complaint of shortness of breath (SOB), accompanied by pain, in the chest and was recommended ECG. He further submitted that Anil Kumar (now deceased) was not attended by any Doctor immediately, on his arrival, in the EMOPD of the PGIMER. He further submitted that the ECG was done at 10.38 a.m. on 03.03.2011 He further submitted that the findings of the ECG were clear and consistent with heart attack/Myocardial Infarction/MI. He further submitted that since, from the ECG, it was evident, that Anil Kumar (deceased), was suffering from heart attack/Myocardial Infarction/MI, it was the duty of the Opposite Parties, to start the treatment, for heart attack, but the same was not at all started immediately which clearly constituted medical negligence, on their part. He further submitted that the treatment, which was given to Anil Kumar (deceased), was on the wrong lines. He further submitted that even there was strike of the staff nurses, as a result whereof, no treatment for a sufficient long time, was given to Anil Kumar (deceased), which aggravated his condition, as a result whereof, he died. He further submitted that even the treatment, which was prescribed, was not implemented in letter and spirit. He further submitted that the Inquiry Committee, which was constituted by the PGIMER, and the report, submitted by it, was not correct. He further submitted that since the Opposite Parties were medically negligent, they were deficient, in rendering service and, thus, the complaint of the complainant was liable to be accepted.
14. On the other hand, the Counsel for Opposite Parties No.1 and 3 to 13, submitted that the moment Anil Kumar (deceased), was brought to the EMOPD of the PGIMER, Dr. Jayanta Samanta/Opposite Party no.3, started him on oxygen and nebulisation therapy (salbutamol every 10 min.). Injection hydrocortisone was also administered. He further submitted that this was done to take care of the life threatening hypoxia, which Anil Kumar (deceased), might have developed. He further submitted that Anil Kumar (deceased), was a known chronic heart failure, secondary to severe left ventricular failure, due to dilated cardiomyopathy. He further submitted that worsening could have been due to heart failure, which was duly treated with oxygen and diuretics. He further submitted that correct line of treatment was adopted, in this case. He further submitted that Dr. Kiran, Senior Resident of Cardiology, had kept the possibility of pulmonary edema, which was considered by Opposite Party No.3, right at the outset, and hence injection Lasix, was administered to Anil Kumar (deceased). He further submitted that, as many as, five Doctors and five nurses, attended Anil Kumar (deceased), in the PGIMER. He further submitted that there was no medical negligence, on the part of the Opposite Parties, nor they were deficient, in rendering service.
15. The question, that falls for consideration, is, as to whether, there was any medical negligence, on the part of the Opposite Parties, who attended Anil Kumar (deceased), in the PGIMER, from the time, when he was brought to the EMOPD, until his death, on 03.03.2011. The Honble Supreme Court in para-94 of its judgment titled as Kusum Sharma and Ors. Vs. Batra Hospital and Medical Research Centre and Ors. I(2010) CPJ 29 (SC), held as under:-
94. On scrutiny of the leading cases of medical negligence both in our Country and other Countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence.
While deciding whether the medical professional is guilty of medical negligence, the following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II.
Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III.
The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV.
A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI.
The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII.
Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII.
It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX.
It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI.
The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
16.
In the case of Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC), it was held by the Apex Court, that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of the surgery would invariably be beneficial much less to the extent of 100% for the person operated upon. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the reasonable 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 skill, with reasonable competence.
17. In Laxman Balakrishan Joshi Vs. Trimbak Bapu Godbole and Anr.-AIR 1969 SC 128, the Apex Court laid down the criteria for determination of the professional duty of a medical man. The Honble Supreme Court held that a person who holds himself out ready to give medical advice, and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, when consulted by a patient, owes himself certain duties viz. a duty to care, in deciding whether to undertake the case, in deciding what treatment to give or duty of care, in administration of that treatment.
18. It is evident, from the principle of law, laid down, in the aforesaid cases, that as long as, the Doctor performs his duties and exercises an ordinary degree of professional skill and competence, he cannot be held guilty of medical negligence. It is imperative that the doctor must be able to perform his professional duties, with free mind. Now, let us see, as to whether, the Opposite Parties, in this case, also performed their duty, by exercising an ordinary degree of professional skill and competence, in treating Anil Kumar (deceased), or not. It is evident, from the admission record/file no.37579/card no.1606711 of Anil Kumar (deceased), aged 45 years, copy whereof is Annexure C-1 that he was brought to the EMOPD of the PGIMER, on 03.03.2011, and was noticed to have cardiogenic shock. CPR was done as per protocol. He was immediately attended by Dr. Jayanta Samanta/Opposite Party no.3, who started oxygen and nebulisation therapy (salbutamol every 10 min.). Injection hydrocortisone (steroids) was administered, which was done to take care of the life threatening hypoxia, which Anil Kumar (deceased), might have developed. Diuretics were given to Anil Kumar (now deceased), in view of the underlying chronic cardiac failure, which otherwise could have been responsible for worsening. The following drugs were prescribed for the treatment of Anil Kumar (now deceased), on 03.03.2011, as is evident from Annexure C-1 at page 53 of the file:-
i. Digoxin 0.25 mg.
ii. Warf 2 mg iii. Cordarone 200 mg iv. Carca 12.5 mg and 6.25 mg.
The following injections were prescribed to Anil Kumar (deceased), on 03.03.2011:-
i. Lasix 40 mg ii. Hydrocort 100 mg iii. Pan 40 mg iv. Azu 500 mg v. Dobutamine 500 mg
19.
Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, in his affidavit, submitted by way of evidence, in clear-cut terms, stated that Anil Kumar (deceased), was a known chronic heart failure, secondary to severe left ventricular failure, due to dilated cardiomyopathy. He further stated in his affidavit, that worsening could have been due to acute exacerbation of COPD, a common infective complication, observed in patients of COPD, as was the deceased, exacerbated by infections (bacterial/viral). He further stated, in his affidavit, that worsening could have been due to irregular, fast heart rate (atrial fibrillation with fast ventricular rate), as was observed in Anil Kumar (now deceased). ECG was done at 10.38 a.m. on 03.03.2011. On 26.04.2013, questionnaire for cross- examination of Opposite Party No.13/Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, was submitted by the Counsel for the complainant. On 14.06.2013, answers to the questionnaire, already submitted by the complainant, were given by Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, in the shape of affidavit. While answering those questions, Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, gave evasive answers to question nos.26,27,28,29,38 and 46. Under these circumstances, Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, was summoned to this Commission, for obtaining his clear-cut answers, to the aforesaid questions. Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, was, thus, examined, on Oath, on 26.08.2013, and he answered the aforesaid questions, as under:-
Q.26 Is there Downward-sloping S-T Segment depression in lead V-5 in ECG done at 10:38 a.m. on the deceased Anil Kumar on 03.03.2011 and which ECG had been placed on record by the complainant alongwith his complaint at page 56? Give your answer in yes or no.
Answer I have seen the ECG done at 10:38 a.m. on 3.3.2011 on the deceased Anil Kumar from the record of the complaint case. My answer to this question is that there was Downward-sloping S-T Segment depression in lead V-5 in ECG aforesaid.
Q.27 Is there Downward-sloping S-T Segment depression in lead V-6 in ECG done at 10:38 a.m. on the deceased Anil Kumar on 03.03.2011 and which ECG had been placed on record by the complainant alongwith his complaint at page 56? Give your answer in yes or no.
Answer I have seen the ECG done at 10:38 a.m. on 3.3.2011 on the deceased Anil Kumar from the record of the complaint case. My answer to this question is that there was Downward-sloping S-T Segment depression in lead V-6 in ECG aforesaid.
Q.28 Is there T-Wave inversion in lead V-5 in ECG done at 10:38 a.m. on the deceased Anil Kumar on 03.03.2011 and which ECG had been placed on record by the complainant alongwith his complaint at page 56? Give your answer in yes or no.
Answer I have seen the ECG done at 10:38 a.m. on 3.3.2011 on the deceased Anil Kumar from the record of the complaint case. It is correct that there was T-Wave inversion in lead V-5 in ECG done at 10:38 a.m. on the deceased Anil Kumar, on 3.3.2011.
Q.29 Is there T-Wave inversion in lead V-6 in ECG done at 10:38 a.m. on the deceased Anil Kumar on 03.03.2011 and which ECG had been placed on record by the complainant alongwith his complaint at page 56? Give your answer in yes or no.
Answer I have seen the ECG done at 10:38 a.m. on 3.3.2011 on the deceased Anil Kumar from the record of the complaint case. It is correct that there was T-Wave inversion in lead V-6 in ECG done at 10:38 a.m. on the deceased Anil Kumar, on 3.3.2011.
Q.38 Whether patient of dilated cardiomyopathy need not be treated for Coronary Artery Disease, if same patient develops symptoms and evidence of ECG suggestive of Coronary Artery Disease (i.e. CAD)?
Answer I have seen the ECG done at 10:38 a.m. on 3.3.2011 in respect of the deceased Anil Kumar from the record of the complaint case. In the ECG seen, by me, which was taken on 3.3.2011 in respect of the deceased Anil Kumar, there were changes but these changes may be old.
Q.46 Is it correct to say that you never treated deceased Anil Kumar for Coronary Artery Disease?
Answer I have seen the ECG done at 10:38 a.m. on 3.3.2011 in respect of the deceased Anil Kumar from the record of the complaint case. From the record, it is evident that the deceased Anil Kumar was treated for Coronary Artery Disease (heart disease) by the Cardiologist.
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Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, was put a specific question no.46, as to whether, it was correct, to say that the Doctors never treated deceased Anil Kumar for Coronary Artery Disease, in response to which, it was stated by him, that he had seen the ECG done at 10:38 a.m. on 3.3.2011 in respect of the deceased namely Anil Kumar from the record of the complaint case. He further stated, in answer, to this question, that from the record, it was evident, that the deceased namely Anil Kumar was treated for Coronary Artery Disease (heart disease) by the Cardiologist, Dr. Kiran, Senior Resident, who was present at his bedside. The death of Anil Kumar, as is evident from copy of the death certificate, at page 80 of the file, was due to an acute myocardial infarction, with pulmonary edema, in a preexisting case of ischemic heart disease with cardiomyopathy, a natural cause. Not only this, even earlier also, with the same problem, Anil Kumar (deceased), was admitted in the PGIMER, in the years 2008, 2009 and 2010, vide CVC file no.187210 dated 05.03.2008, 1st admission vide file no.06980/09, 2nd admission vide file no.83048/09 and 3rd admission vide file no.08877/10. Even, as per the orders of the Director, PGIMER, a Committee constituting Professor Y.Chawla, Chairman, Prof. Sanjay Jain, Member, Dr. Ajay Bahl, Member and Dr. Ashok Kumar, Co-ordinator, was constituted. The Committee summoned the entire record, relating to the patient namely Anil Kumar (deceased). The Committee recorded the statements of Gulshan Bala, complainant, as also the Doctors and the Nurses, who attended Anil Kumar (deceased), during his treatment, from the time, he was brought to the EMOPD, on 03.03.2011, till his death. The Committee gave its report, in relation to the complaint, made by Gulshan Bala, complainant. The first complaint made was that, no one attended on her husband till 11.30 a.m. on 03.03.2011. After recording the statements of the Doctors concerned, as also the complainant, the Committee gave its report dated 24.08.2011 Annexure C-6 (colly.) at pages 87 to 98 of the file, the relevant part of which, is reproduced hereunder:-
The treatment chart shows that Mr. Anil Kumar (Deceased) received Tab. Digoxin, Tab. Amiodarone, Tab. Caren at 10.00 a.m. on 03.03.2011. He also received injection Lasix, Injection Hydrocortisone and Injection Pantaprazol at 10.00 am. Patient was also attended by the Nursing staff at 10.00 a.m. ECG was recorded at 10.38 am, on 03.03.2011. The patient`s card was made at 10.58 a.m. His bedside blood sugar was tested at 11.00 am. The patient was attended and the treatment started even before the formalities of making an emergency card. The treatment was based on the clinical assessment and the previous discharge card. Blood samples were drawn for laboratory testing and the information received from HoD, Hematology mentions that the sample of the deceased patient was receive (received) around 11.30 am and report was dispatched at 2.00 p.m. It was also stated by the treating Junior Resident that the patient was attended immediately as he presented with acute shortness of breath with cough and mucoid expectoration and was given the treatment as shown in the treatment chart. It is clear that there was no delay in the treatment on the part of the doctors or any other hospital staff.
21.
The Committee, thus, came to the conclusion, that for the entire period of stay, in the EMOPD of Anil Kumar (deceased), i.e. from 10.00 a.m. to 4.00 p.m., he was attended by five Doctors and five Nurses. No written or oral complaint was made by Gulshan Bala, wife of Anil Kumar (now deceased) or any other relative, during or after his death on 03.03.2011. The first complaint was received on 05.03.2011. The Committee also came to the conclusion, that there was no medical negligence, on the part of the Opposite Parties, in treating Anil Kumar (deceased), on 03.03.2011. From the evidence, on record, it was, thus, proved that Anil Kumar (now deceased), was given the proper treatment, with regard to the heart disease, symptoms whereof, appeared from the ECG, taken at 10.38 a.m. on 03.03.2011, and other related diseases, from which he was suffering. This Commission cannot substitute its own opinion, with the medical opinion of Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, and the Doctors of the Committee, who all are experts in various medical streams. It is, therefore, proved that correct line of treatment for heart disease, and other diseases, was given to Anil Kumar (deceased). The Doctors, who attended Anil Kumar (now deceased), exercised ordinary degree of professional skill and competence, in treating him. The submission of the Counsel for the complainant, to the effect that Anil Kumar (deceased), was not given proper treatment for heart attack, on 03.03.2011, by the Doctors concerned of the PGIMER, therefore, being devoid of merit, must fail, and the same stands rejected.
22. Coming to the question, as to whether, there was a strike of the Nurses, and on account of that reason, proper treatment was not given to Anil Kumar (deceased), no doubt, in the written reply, filed by the Opposite Parties, it was stated that on 03.03.2011, there was an altercation, between the attendant of another patient namely Gurmeet Singh, and Opposite Parties No.8 and 9, but at no point of time, due to that altercation, any one, in the emergency ward, suffered. It was, however, stated, in the written version, that the matter was sorted out. The averments, contained in the written version, were duly corroborated by the affidavit of Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, which was submitted by him, by way of evidence. Not only this, the Committee aforesaid, which was constituted by the Director of PGIMER, also went into this aspect of the matter. The Committee, in its report, in paragraph number 3, in clear-cut terms, recorded as under:-
The matter was probed in detail by asking all staff posted in the Emergency OPD including Senior Residents/Junior Residents/Staff Nurse. It emerged from the statements of Residents/Junior Residents/Staff Nurse that there was an altercation between a patient`s attendant (Gurmeet Singh 39/M Cr. No.01595920) and a staff Nurse around 1.40 p.m. Immediately the matter was reported to the SMO and Senior Nursing Staff by the concerned staff which took 5-10 minutes to report this matter. All other staff was attending the patients. Even Mr. Gurmeet Singh was attended uninterruptedly. It was reported to the Committee Members that the patients (Mr. Gurmeet Singh`s) attendant passed derogatory remarks to the female staff nurses without any fault of her. She reported the matter to the other staff nurses in their changing room. By 2.00 PM next shift of staff nurses joined their duty normally. It was after 2.00 pm that the morning staff on duty after completion of their shift decided to report this matter to police as some of them were living in hostel alone. Later on the attendant apologized publicly and matter was sorted out. It is evident from the treatment charts of all patients present in the Emergency OPD that work was continued even when altercation was going on. Most of the Nursing Staff came to know about the incidence in the changing room after their duties.
23. Even from the record of Anil Kumar (now deceased), it is evident, that he was treated continuously, by the Doctors and Nurses, and there was no interruption, in his treatment. The mere fact that some minor incident took place, as a result whereof, there was some altercation, that did not mean that the medical treatment of Anil Kumar (deceased), was, in any way interrupted. No tangible evidence was produced, on the record, that the complainant, on account of the altercation aforesaid, was not attended to properly, or there was some delay in treating him. The affidavit of Gulshan Bala, complainant, in this regard, cannot be given much weightage, in the face of the evidence of Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, and report of the Committee aforesaid. Under these circumstances, the submission of the Counsel for the complainant, that Anil Kumar (now deceased), was not attended or treated properly, due to the altercation aforesaid, being devoid of merit, must fail, and the same stands rejected.
24. The next question, that falls for consideration, is, as to whether, the injection Azithromycine via Intravenous Infusion, was given to Anil Kumar (now deceased), in a great hurry by Opposite Parties No. 8 and 9, without any test dose, and soon after the infusion of the said injection, he (Anil Kumar (now deceased), started turning blue, and his condition deteriorated. In reply, the Opposite Parties stated that injection Azithromycin via Intravenous Infusion was prescribed to Anil Kumar (now deceased), to take care of acute bacterial infection, between 11.30. am to 12.00 noon, on 03.03.2011. The said Injection was given, in the form of infusion (100 ml) over 20-30 minutes, and never as a bolus. Injection Azithromycine could not be given as a bolus, as the amount injected was too large for a bolus. It was denied that this injection was given in a great hurry, but, on the other hand, it was given after 20-30 minutes interval. It was stated, in the written version, that chances of anaphylaxis, with the said injection were near negligible. Not only this Anil Kumar (now deceased), was already getting injection hydrocortisone (steroids) for acute exacerbation of COPD, which decreased the chances of anaphylaxis, due to any drug. It was made clear, in the written version, that the condition of Anil Kumar (now deceased), deteriorated, because of the worsening cardiac rhythm (atrial fibrillation with fast ventricular rate), which was documented and confirmed by Dr. Kiran, Senior Resident of Cardiology. As soon as this complication was detected, immediate resuscitative measures were taken by Opposite Party No.3, and Dr. Kiran, Senior Resident of Cardiology, who were present at the bedside of Anil Kumar (now deceased), at all times, during his hospitalization. These averments were duly corroborated by Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, through his affidavit, submitted by way of evidence. Not only this, the said fact was also fortified from the report Annexure C-6 (colly.) dated 24.08.2011, submitted by the Committee constituted by the Director of PGIMER, comprising Professor Y.Chawla, Chairman, Prof. Sanjay Jain, Member, Dr. Ajay Bahl, Member and Dr. Ashok Kumar, Co-ordinator. The allegations of the complainant, to the effect that injection Azithromycine was given to Anil Kumar (deceased), in a great hurry, on 03.03.2011, was belied from the evidence of Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, as also the report of the Committee aforesaid. On the other hand, it was proved that Anil Kumar (now deceased), was given proper medical treatment, by taking the requisite time, required for administering such injection. The reaction of this injection according to Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, was near negligible, as Anil Kumar (now deceased), was already getting injection hydrocortisone (steroids), for acute exacerbation of COPD, which decreased the chances of anaphylaxis, due to any drug. Not only this, when the condition of Anil Kumar (deceased), deteriorated, because of worsening cardiac rhythm (atrial fibrillation with fast ventricular rate), he was properly treated by resorting to immediate resuscitative measures. There was, therefore, neither any medical negligence, on the part of the Opposite Parties, in giving injection Azithromycin, nor the condition of Anil Kumar (now deceased), worsened, on account of that reason. The submission of the Counsel for the complainant, in this regard, being devoid of merit, must fail, and the same stands rejected.
25. The Counsel for the complainant placed reliance of Nizam`s Institute of Medical Sciences Vs. Prasanth S. Dhananka and Others, (2009) 6 SCC, Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others, (2009) 9 Supreme Court Cases 221, Charan Singh Vs. Healing Touch Hospital and others, (2007) 7 Supreme Court Cases 668, Indian Medical Association Vs. V.P. Shantha and Ors., (1995) 6 Supreme Court Cases 651, B. Sreekanth Vs. Dr. H.N. Shivakumar 1(2010) CPJ 31 (NC), D.H. Kumari and Ors. Vs. Nizam Institute of Medical Sciences, I(2013) CPJ 520 (NC), Manoj Banerjee Vs. Oriental Insurance Co. Ltd. and Anr. I(2013) CPJ 542 (NC), Rajiv Sharma and Ors. Vs. Helvetia Klinic Pvt. Ltd. and Ors. II (2010) CPJ 68 (NC), Basujit Gangopadhyay (Dr.) Vs. Ajayendu Nag, II (2010) CPJ 91 (NC), M.C. Katare Vs. Bombay Hospital and Medical Research Centre and Ors. II (2010) CPJ 128 (NC), Ajay Gautam Vs. Amritsar Eye Clinic and 6/6 Lasik Laser Centre and Ors. II (2010) CPJ 225 (NC), ILS Hospital and Anr. Vs. Bimal Kumar Ghosh, II (2013) CPJ 594 (NC), Kurien Joseph (Dr.) and Anr. Vs. Govindarajan, II (2013) CPJ 296 (NC), Ram Nihal and Ors. Vs. Dr. C.G. Agarwal, II (2013) CPJ 301 (NC), Chaithanya Nursing Home and Anr. Dr. H.B. Chandrashekhar and Ors. Mallya Hosptial, Vs. P. Puttaraju and Ors. II (2013) CPJ 456 (NC), St. Stephan Hospital vs. Siya Ram Sagar and Ors, I (2013) CPJ 350 (NC), Yashoda Super Speciality Hospital Vs. A. Subbalakshmi and Anr., I (2013) CPJ 409 (NC), Jagat Narain Choube and Ors. Vs. Achal Sepaha (Dr.) and Anr. I (2013) CPJ 467 (NC), Deepak Gupta (Dr.) Vs. Balkishan and Ors. I(2011) CPJ 319 (NC), Prabha Agarwal (Dr.) and Anr. Vs. Kamkhay Singh and Anr., IV(2011) CPJ 380 (NC), Kapildeo Singh (Dr.) Vs. Sagina Khantoon, IV(2011) CPJ 218 (NC), Jayendra Maganlal Padia Vs. Dr. Lalit P. Trivedi and Ors. III (2011) CPJ 249 (NC), Mangla L. Paradkar (Dr.) and Anr. Vs. Shailendra Singh, III (2011) CPJ 64 (NC), Vinod Prasad Nautiyal Vs. Savitri Uniyal and Ors, II (2011) CPJ 289 (NC), Kunal Saha (Dr.) Vs. Sukumar Mukherjee and Ors. IV (2011) CPJ 414 (NC), Sushma (Smt.) and Ors. Vs. Dr. G.D. Goel and Anr. IV (2010) CPJ 410 (NC), Ashok Kumar Upadhyaya and Anr. Vs. Dr. D.N. Mishra (Professor) and Ors. I (2011) CPJ 194 (NC) and Deepak Gupta (Dr.) Vs. Balkishan and Ors., I (2011) CPJ 319 (NC) to contend that the Opposite Parties failed to exercise an ordinary degree of professional skill and competence, in treating Anil Kumar (now deceased), during the period, he remained admitted in the PGIMER, on 03.03.2011. The perusal of the facts and circumstances of the aforesaid cases, clearly goes to show that Doctors, in those cases were found to be medically negligent, on the basis of the evidence produced, on the record, therein. In the instant case, as stated above, the diseases from which Anil Kumar (now deceased), was suffering were properly diagnosed and proper treatment was given to him, during the period, he remained admitted, in the PGIMER. Even, proper treatment for heart attack, the symptoms of which developed/detected in the ECG, taken on 03.03.2011, at 10.38 a.m., was given to him. As stated above, from the evidence of Dr. Ashish Bhalla, Additional Professor, Department of Internal Medicine, PGIMER, as also the report of the Committee aforesaid, it was proved that there was no medical negligence, on the part of the Opposite Parties, in treating Anil Kumar (deceased). Since these cases were decided, on the peculiar facts and circumstances, prevailing therein, no help can be drawn by the complainant, from the principle of law, laid down therein, to prove that there was medical negligence, on the part of the Opposite Parties. The submission of the Counsel for the complainant, in this regard, being devoid of merit, must fail, and the same stands rejected.
26. In the final analysis, it is held that Opposite Parties 1 and 3 to 13, exercised an ordinary degree of skill and competence in treating and taking care of Anil Kumar (now deceased), in the best possible manner, during the period he remained admitted in the PGIMER. Thus, the Opposite Parties were not at all guilty of medical negligence, in treating Anil Kumar (now deceased). There was, thus, no deficiency, in rendering service, on the part of the Opposite Parties.
27. No other point, was urged, by the Counsel for the parties.
28. For the reasons recorded above, the complaint, being devoid of merit, must fail, and the same is dismissed, with no order as to costs.
29. Certified Copies of this order be sent to the parties, free of charge.
30. The file be consigned to Record Room, after completion Pronounced.
September 6, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Rg.