State Consumer Disputes Redressal Commission
Naresh Kumar Sharma vs Mool Chand Khairati Ram Hospital on 19 December, 2006
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION:DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 19-12-2006 Complaint Case No. 252 of 1997 Mr. Naresh Kumar Sharma, S/o. Hari Kishan Sharma, R/o. G-6, Shahpur Jat Village, New Delhi 110049. . . . Complainant In person Versus 1. M/s. Shri Mool Chand Kharaiti Ram Hospital, Lajpat Nagar-III, New Delhi. . . . Opposite Party No.1 2. Dr. Subhash Dawar, 147-Sunder Nagar, New Delhi 110003. . . . Opposite Party No.2 3. Shri MCKR Imaging Centre, Mool Chand Kharaiti Ram Hospital, Lajpat Nagar-III, New Delhi. . . . Opposite Party No.3 O.P No. 1 to 3, Through Mr. B. Mahapatra, Advocate 4. United India Insurance Co. Ltd. Branch Office No.1, 607-608 Devika Tower, 6-Nehru Place, New Delhi . . . . Opposite Party No.4 CORAM: Justice J.D. Kapoor, President Mahesh Chandra, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. On account of wrong diagnosis of the disease of his two year old child by doctors of the O.P. hospital and the wrong line of treatment given by them resulting in the death of the infant child, the complainant who is father of the child has sought compensation of Rs. 10,13,400/- besides cost of litigation in the following terms:-
(i) Medical expenses incurred on the treatment prescribed by O.P. during the period 09-09-1996 to 19-09-1996. Rs. 13,400-00
(ii) Compensation and damages for the actual and mental torture suffered by the complainant and family for the loss of a son. Rs.
10,00,000-00
2. The allegations of the complainant in brief are that his deceased son Master Kitesh Sharma alias Karan was admitted on 09-09-1996 to the O.P.1- hospital with the complaint of fever and vomiting since about last one month. On admission, as per instructions O.P.2 the consulting pediatrician, whole abdomen ultrasound scan was conducted by O.P.3 Laboratory.
On 19-09-1996 based on the ultrasound scan report, O.P.3 gave the opinion that the child was a case of doubtful lesion in upper pole of right kidney / right adrenal and advised a CT scan for further evaluation of the case. On the advice and opinion of O.P.3, O.P.2 doctor who was treating the child referred him back to O.P.3 for CT scan as advised. However, in a manifest display of negligence, the O.P.3 instead of conducting a CT scan of the abdomen conducted the CT scan of the head which was in contrast to the suspected lesion in the kidney. However, O.P.2 and O.P.3 connived with and abetted each other in covering up their folly instead of straightaway rectifying the mistake at the ultimate expenses of his sons life.
Because of the grossly negligent and unprofessional conduct of O.P.2 and O.P.3 doctor a correct diagnosis could not be arrived at as a result of which the child was subjected to unnecessary, futile and painful treatment and administered large doses of medicines which were entirely uncalled for and unnecessary. O.P. 1- hospital and O.P.2-doctor in a cavalier and negligent manner finally discharged the child on 19-09-1996 describing his condition as satisfactory. The final diagnosis of the illness suffered by the child as recorded by O.P.3 Laboratory for which O.P.2 - doctor had apparently treated him satisfactorily was Enteric Fever as mentioned in the discharge sheet and other documents collectively annexed as Annexure-A.
3. However, the condition of the child continued to worsen and the complainant in the end of October, 1996 took his son to AIIMS for further treatment. At AIIMS the child was diagnosed as a case of Neuroblastoma Stage-IV. This diagnosis was made by the doctors of AIIMS on the basis of bone marrow test and CT Abdomen and Pelvis done on 05-11-96 and 07-11-96, copies of which are Annexure-B. It, therefore, became clear and apparent that had the O.P 2 and 3 acted with minimum expected standard of care and ensured that the CT abdomen was done properly, a correct and timely diagnosis of the disease could have been made and the child could have been treated efficaciously. Due to the negligence on the part of O.P.2 and 3, by the time the disease was properly diagnosed and treatment started it was too late and the complainant lost his only son on 09-12-1996, his last days spent in needless and completely avoidable agony.
4. That the activities and functions of the doctors and other departments of O.P.1, O.P.2 and O.P.3 are negligent, careless, irresponsible and against professional ethics, causing loss of life of the complainants infant child inflicting mental trauma and torture on the parents and family of the child. All because, instead of a CT Abdomen the O.Ps negligently and indeed criminally conducted a CT Head in coming to the conclusion that the child was suffering from enteric fever and not Neuroblastoma. Neuroblastoma in children under two years has the best prognosis with timely detection which could not be done due to the callous attitude of the OP No.2 and 3.
5. While denying the allegations of medical negligence on the part of the O.P. doctors in as much as they acted negligently in conducting the CT Scan brain instead of CT Scan abdomen and pelvis that resulted in the late diagnosis of the actual disease the child was suffering from, the OPs have averred that at the time of admission of the child on 09-09-1996 the child was very sick. The doctor advised certain tests including internal blood CS, Vidal test, Hd (Hb), TLC/DLC/MP and urine examination (routine and microscopic. The above tests were found to be positive which means that the child was suffering from typhoid. Since the child was barely 18 months old and was very sick and irritable the O.P. 2 consulted Paediatrician Dr. Sudhir and Neurologist Dr. Dilip Suri.
Dr. Suri was consulted to rule out if the child was suffering from Meningitis. Meanwhile, when the Ultrasound report came it was found that there was a hyper echoic area for which the Paediatrician advised CT Scan of the abdomen but the CT scan of the abdomen was deferred for the time being as the child was to be administered Gastrografin which is given for a child to undergo CT Scan of abdomen. Administration of Gastrografin could have led to serious repercussions had the doctors administered it at that point of time which would have been a serious case of medical negligence. The child was given medicines for typhoid at that point of time and the condition of the child apparently improved. Meanwhile on 19-09-1996 the child was discharged and advised to come two days after, i.e. on 21-9-1996. Thereafter the child had never been brought to the hospital. Regarding CT Scan of the brain, it is pleaded that it was a conscious decision on the part of the treating doctors. All confabulated and decided that the child should undergo CT scan of the brain to rule out Meningitis. Therefore, meningitis has nothing to do with the CT scan of abdomen and paralysis.
6. While refuting the aforesaid allegations of the O.Ps, the complainant had contended that the doctor who had advised for the Ultrasound report had advised CT scan of abdomen and pelvis but the OPs got the CT scan of the head instead of abdomen and on the advice of the OP doctor that on 19-9-1996 the child should be brought after two days, the complainant had taken the child to the OP hospital on that day but the doctor showed his inability to treat the child and advised to take him some where else and that whatever was in his competence he had done for the child.
7. Medical negligence, which sometimes verges on criminal negligence, has to be decided on the various guidelines and tests laid down in respect of which there is a judicial unanimity. The question of medical negligence has been cropping up time and again before all the courts all over the world and one significant test known as Bolam Test by the English Judges reported in (1957) 2 AII ER 118, 121 D-F still holds 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)
8. 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.
9. 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.
10. While dealing with the concept of medical negligence the Supreme Court laid down the following requirements:-
(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.
11. 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)).
12. In nutshell, each and every case of medical negligence has to be tested on the following criterion:-
(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?
13. The result will depend upon the answers to the above queries.
14. In the instant case, the apparent reason given by the doctors of the O.P is that the CT scan of abdomen and pelvis could not be conducted because the child was cranky and not cooperating and therefore to rule out meningitis CT scan of head was conducted. It is not understandable as to what prompted the doctors of AIIMS to conduct CT scan of the abdomen and pelvis as the condition of the child was such that every medical doctor who is skilled in the science of Neurology has to rule out the existence of Neuroblastoma in the infants. Medical literature shows (Rheinische Friedrich University Medical Centre, Bonn) that before the advent of Multi agent chemotherapy even stage-IV Neuroblastoma of all ages was dismal and now marked improvement in infants with stage-IV NB is being reported. So much so 24 infants with stage-IV Neuroblastoma were treated at the cancer institute, i.e. children hospital Boston and 10 out of 11 patients were found alive without a trace of the disease after intensive therapy.
15. In our view, the OPs were negligent in not conducting the CT scan of abdomen and pelvis to rule out existence of NB. It does not mean that CT scan head was also not required in view of the problem the child was suffering from when it was brought to the O.P doctors and when the child was not improving inspite of treatment being given by the OPs on the basis of CT scan head, the immediate expectation from a medical professional who is expert in the field was to rule out existence of Neuroblastoma. However, the contention of the counsel for the O.Ps is that there was no symptom of any kind of Neuroblastoma and therefore CT scan of abdomen and pelvis was not necessary and that the CT scan abdomen and pelvis could not have been done, as the child was vomiting and having typhoid, without entailing serious consequences.
16. Had it been so, there was no need for even conducting CT scan of head. However, since the child, after a few days, was found to be suffering from Neuroblastoma Stage-IV, we cannot jump to the conclusion that the child would have survived if CT scan of abdomen and pelvis had been done because the child could not have developed NB Stage-IV within a few days. At the same time the O.Ps also cannot escape from the consequences of medical negligence limited to the extent of not subjecting the child to CT scan abdomen and pelvis as the report given by them does not inspire confidence nor the reasons set out in the reply that the child was cranky and not cooperating and therefore CT scan of abdomen and pelvis could not be done.
17. The medical literature relied upon by the counsel for the OPs is from the Textbook of Radiology & Imaging by David Sutton, Vol. I to the effect that earlier the prognosis for patients with Stage-IV Neuroblastoma of all ages was dismal but more recently marked improvement in infants with Stage-IV Neuroblastoma has been reported. Twenty four infants with Stage-IV Neuroblastoma have been treated at the Dana Farber Cancer Institute / The Childrens Hospital. Several results confirm that infants with Stage-IV NeuroBlastoma have a good prognosis when treated with multi agent Chemotherapy.
18. For the limited medical negligence of not subjecting the child to CT Scan A & P, may be for any reason whatsoever, and without being oblivious to the fact whether the child would have survived or not which is not a factor to be taken into consideration while holding a medical professional guilty of medical negligence, we deem that a lump sum compensation of Rs. 2 Lacs would meet the ends of justice.
19. Payment shall be made within one month of receipt of this order by the O.P.1 hospital and the diagnosing doctor of O.P.3 jointly and severally. Complaint is disposed of in above terms.
20. A copy of the order as per statutory requirement be forwarded to the parties free of cost and also to the concerned District Forum and thereafter the file be consigned to record.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member HK