State Consumer Disputes Redressal Commission
Jasbir Singh And Others vs Pal Urology And Others on 31 March, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.1603 of 2005
Date of institution: 16.12.2005
Date of decision : 31.03.2011
1. Jasbir Singh aged about 40 years son of Sh.Lachman Singh resident of
house No.183, Mohalla Jassran, Sirhind, Tehsil and District Fatehgarh
Sahib.
2. Harpreet Kaur aged about 10½ years minor daughter of Sh.Jasbir Singh son
of Sh.Lachman Singh through her father and natural guardian Sh.Jasbir
Singh son of Sh.Lachman Singh resident of house No.183, Mohalla Jassran,
Sirhind, Tehsil and District Fatehgarh Sahib.
3. Sumanpreet Singh aged about 9 years minor son of Sh.Jasbir Singh son of
Sh.Lachman Singh through her father and natural guardian Sh.Jasbir Singh
son of Sh.Lachhman Singh resident of house No.183, Mohalla Jassran,
Sirhind, Tehsil and District Fatehgarh Sahib.
.....Appellants
Versus
1. Pal Urology & Stone Centre (Kidney Hospital) through Dr.B.P.Singh,
M.Ch.(urology), resident of 9, Ghuman Colony, Sant Nagar, Patiala.
2. Dr.B.P.Singh claiming to be M.Ch. (Urology), C/o Pal Urology & Stone
Centre (Kidney Hospital) resident of 9, Ghuman Colony, Sant Nagar,
Patiala.
3. New India Assurance Company Ltd., Opposite Income Tax Office, Patiala.
4. Sadhbhavna Medical and Heart Institute through Dr.Sudhir Verma,
Opposite State College of Education, Patiala, Tehsil and District Patiala.
5. Dr.Sudhir Verma, DM (Cardiology) c/o Sadhbhavna Medical & Heart
Institute, r/o Opposite State College of Education, Patiala, Tehsil and
District Patiala.
6. Insurance Company/Assurance Company of respondent No.4 and 5 if any
be disclosed by respondent No.4 & 5.
7. Dayanand Medical College & Hospital, Ludhiana through its
Director/Manager/Proprietor/Administrator.
8. The Manager, Reliance General Insurance Co. Ltd., 3rd Floor, Surya
Towers, 108, The Mall, Ludhiana.
9. National Insurance Company Ltd. through its Branch Manager, Branch
Office, SCO No.12-13, Gurudwara Dukhniwaran Road, Patiala - 147 091.
.....Respondents
First Appeal No.1603 of 2005 2
First Appeal against the order dated 19.10.2005
passed by the District Consumer Disputes
Redressal Forum, Patiala.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Mr.Baldev Singh Sekhon, Member Present:-
For the appellant : Sh.S.S.Chadha, Advocate
For respondents No.1&2 : Sh.A.P.S.Luna, Advocate
For respondent No.3 : Sh.R.K.Sharma, Advocate
For respondents No.4 & 5 : None
For respondent No.6 : None
For respondent No.7 : Sh.Amit Kohar, Advocate
For respondent No.8 : Sh.R.K.Bashamboo, Advocate
For respondent No.9 : Sh.Rajneesh Malhotra, Advocate
JUSTICE S.N.AGGARWAL, PRESIDENT
Jasbir Kaur (now deceased) (in short "the patient") was the wife of Jasbir Singh appellant and the mother of Harpreet Kaur and Sumanpreet Singh appellants No.2 and 3. She had pain in her abdomen. She went to Pal Urology & Stone Centre (kidney hospital) respondent No.1 (in short "the respondent hospital") which was owned by Dr.B.P.Singh respondent No.2 (respondent doctor). The respondent doctor advised the ultrasound test. On the basis of the ultrasound test report dated 19.3.2004, the respondent doctor told the patient that she had a calculus in her left kidney. The respondent doctor also advised the patient to come to the respondent hospital on 31.3.2004 for operation of Left Recurrent Renal Calculi in malrotated kidney. The respondent doctor also told that the operation shall be performed with caliectasia as it was the latest technique of laser.
First Appeal No.1603 of 2005 3
2. It was further pleaded that the patient along with appellant No.1 reached the respondent hospital on 31.3.2004. She was admitted. She was subjected to operation. However, neither the respondent doctor conducted the proper tests before operation nor the operation was conducted properly. On 2.4.2004, the patient was diagnosed to be having S.Bilirubin. She was feeling restlessness due to the negligence of the respondent doctor. He also failed to remove the kidney stone. Rather some internal injury was caused to the patient by negligent handling of the patient by the respondent doctor. The condition of the patient was deteriorating. Without discussing the correct health condition of the patient, the respondent doctor referred the patient to Sadbhavna Medical & Heart Institute (in short "Sadbhavna Hospital") respondent No.4 although the said hospital is only for the heart patients.
3. It was further pleaded that neither the respondent doctor was a radiologist nor he had taken the services of an expert radiologist at the time of operating the patient. Prior to PCNL test conducted by respondent No.2, it was reported in the CPE/left RGP (detail) as under : -
"Flakes floating in urinary bladder are mentioned and Urine sample as per operative summary was sent for Cultural Sensitivity (C/S) which indicates suspicion of possible infection in the urine."
4. It was further pleaded that the respondent doctor had conducted the surgery without waiting for the report of the urine culture. Moreover, the decision of the respondent doctor to do PCNL on a malrotated kidney was not right. The kidney reported abnormally from its normal position. No renogram to know the position of renal blood vessels was done by the respondent doctor. It resulted in injuring the blood vessels of the kidney by PCNL procedure which led to internal bleeding. The respondent doctor has also not mentioned in the medical record if the stone was removed or not. Frank blood was coming into urine after the operation. It was noticed by appellant No.1 and other attendants of the patient. It First Appeal No.1603 of 2005 4 was also brought to the notice of the respondent doctor time and again but he did not pay any heed and kept on demanding money more and more. The respondent doctor did not put in sincere efforts to treat the patient as per medical ethics.
5. It was further pleaded that in the summary discharge, it was mentioned by the respondent doctor that the post operative period was eventful that means complications had arisen right from the day of admission but the details of those complications were withheld by the respondent doctor in the summary discharge. These details would have been helpful in saving the life of the patient in specialised hospitals like PGI where the patient was referred by the doctor of Sadbhavna Hospital. The respondent doctor also failed to mention the cause of deterioration of the patient in his operation notes. He only mentioned that the patient was having jaundice/restlessness and decreased urine output of the patient.
6. It was further pleaded that the internal excessive bleeding resulted in jaundice and septicaemia which had occurred to the patient due to the medical negligence committed by the respondent doctor. The respondent doctor had also suspected infective urine and it was for that reason that he had sent the urine of the patient for urine culture. Moreover, as per the summary discharge of the respondent hospital, the patient was not fit for being sent to Sadbhavna Hospital which was meant only for Cardiac patients. The deterioration in the condition of the patient could have been stopped only by a composite team of Gastroenterologist, Urologist, Nephrologist as concluded by the respondent doctor. None of the specialists other than Cardiologist attended the patient in the Sadbhavna Hospital. The patient remained admitted in Sadbhavna Hospital from 2.4.2004 to 5.4.2004 when she was referred to DMC and Hospital, Ludhiana (in short "the DMC") respondent No.7. The condition of the patient had further deteriorated in Sadbhavna Hospital nor there was adequate medical facilities and specialist doctors for treating the patient in view of her deteriorating condition. The patient died in the DMC on 21.4.2004.
First Appeal No.1603 of 2005 5
7. It was further pleaded that the patient was about 35 years of age. She was quite hale and hearty before her admission in the respondent hospital. She was asset to the family as she was doing the work of knitting and embroidery and was earning about Rs.10,000/- per month. She was also looking after the household work. Appellants No.2 and 3 were school going children. The patient also used to look after the education of appellants No.2 and 3. Appellants No.2 and 3 have also been deprived of motherly affections. Appellant No.1 has employed a maid servant to look after appellants No.2 and 3 @ Rs.3000/- per month. Hence, the complaint for recovery of Rs.10 lacs as compensation, Rs.7 lacs on account of medicines, transportation and other charges incurred in the hospitals. Costs were also prayed.
8. Respondents No.1 and 2 filed the joint written reply. It was admitted that the patient had come in the OPD of the respondent hospital on 19.3.2004. She was diagnosed to be having left recurrent renal calculi. She already had an ultrasound report with her (middle and superior calyceal calculi). The patient had previously undergone the surgery for the kidney stones on the left side in 1982 at Rajindra Hospital, Patiala and in 1998 at Amar Hospital, Patiala. She was advised by the respondent doctor to get Intra Venous Pyelogram (IVP) done. She had underwent this test on 29.3.2004. The test report was seen by the respondent doctor on the same day. It was seen in the IVP report that the patient had minor degree of malrotation of the left kidney along with 2 big calculi in the superior and the middle calyces as well as multiple secondary calculi in the inferior calyx. She was advised to get admission in the respondent hospital and the patient was admitted in the respondent hospital on 31.3.2004 for operation of left recurrent calculi in a malrotated kidney.
9. It was further pleaded that the proper pre-operative evaluation was taken by way of physical examination of the patient and the relevant investigations were carried out. During the visit of the patient in the respondent hospital on 29.3.2004, she was advised PCNL for left renal calculi. The nature of the First Appeal No.1603 of 2005 6 procedure needed blood transfusion. There were likely complications and the occasional need for the re-look nephroscopy. These were duly explained to the patient and her attendants. These were also discussed with the patient and Jasbir Singh appellant who had a medical background as he was working in the Civil Hospital, Fatehgarh Sahib. It was also brought to the notice of Baldev Singh father of the patient. The appellant was told to have two donors ready for blood donation so that the compatible blood could be arranged from the blood bank of Rajindra Hospital, Patiala. It was denied if there was any medical negligence on the part of the respondent doctor.
10. It was pleaded that the respondent doctor was a qualified Urologist. He had attained specialisation as he had passed MS (General Surgery) in 1991 and M.Ch. Urology in 1993 from All Indian Institute of Medical Sciences, New Delhi. He was running his practice in Ghuman Colony, Sant Nagar, Patiala with effect from December 1995.
11. It was further pleaded that there was nothing like a laser for recurrent/big renal calculi. The implications of PCNL were duly explained and discussed with the patient, appellant No.1 and other attendants of the patient when the patient had come for OPD counselling. The appellant underwent this test. She had also undergone cystoscopy/left RGP/Per Cutaneous Nephrolithotomy (PCNL) for the removal of the left renal calculi on 31.3.2004.
12. It was denied if there was any medical negligence on the part of the respondent doctor or if he could not have conducted the operation as per the medical ethics or if he failed to remove the kidney stone. It was also denied if the patient was feeling restlessness due to negligence on the part of the respondent doctor. These allegations were frivolous and unsubstantiated. It was denied if any internal injury was caused to the patient. The pre-anaesthesia check up was done by Dr.G.S.Battu, M.D. (Anaesthesia) and he had found the patient not having jaundice. The procedure was carried out by the respondent doctor with utmost care and in a very ethical manner. It was noted that she had some flakes in the bladder First Appeal No.1603 of 2005 7 urine and the same was sent for culture and sensitivity to the Rapid Lab. despite the fact that the patient had been investigated pre-operatively and she was found to be having sterile urine on urine C/S. It was common to have flakes in the urine if the patient has foreign body/stones lodged in the urinary tract. It only revealed that the respondent doctor was vigilant enough at all stages of the patient management. The proper antibiotics were started before the PCNL and necessary injections were given. Proper steps were taken in the pre-operative period for the prevention of sepsis.
13. It was further pleaded that it appeared that the patient had bacteremia during some part of the intra-operative process. This could happen as the stones were known to harbour bacteria in their structure which could become liberated after the stone was broken. The bacteremia could occur despite the dose of antibiotics given during the pre-operative period. The fever was also common which occurred in about 25% of the patients. The bacteremia could result in a rise of S.Bilirubin as well as liver cell/kidney dysfunction. It was evidenced by the rise of SGOT/SGPTS Creatinine (the same process was thought of as the first differential diagnosis on which the treatment line was based). The other differential diagnosis could be because of mismatched blood transfusion/acute hepatitis.
14. It was further pleaded that the respondent doctor had given the requisition slip of Rajindra Hospital Blood Bank to appellant No.1 for arranging the blood. Two units of apparently well matched blood were brought by appellant No.1. The patient could not tolerate both the units of blood when it was tried to be transfused in her body. Appellant No.1 and other attendants of the patient knew it well. It was at this juncture that it was brought to the notice of the respondent doctor that the blood was procured by appellant No.1 from Civil Hospital, Fatehgarh Sahib where appellant No.1 was working. The blood was very delicate product stored in delicate bags which could easily be damaged during the transit and could be infected. The possibility of the improperly matched blood was kept First Appeal No.1603 of 2005 8 in mind. This was the second differential diagnosis that was worked on. It was evident in the opinion of independently thinking physicians Dr.Parmod Mittal DM (Gastroenterology) and Dr.Jagjit Singh DNB (Nephrology).
15. It was denied if the operation regarding the removal of stone from the kidney had failed due to medical negligence of the respondent doctor or if he had not disclosed the correct condition of the patient to her attendants or if Sadbhavna Hospital was only meant for heart patient. It was denied if PCNL procedure had failed. The stones were broken and removed and these were handed over to the relatives of the patient. It was duly mentioned in the transfer note. However, the secondary stones in the inferior calyx were not removed because of risk of causing injury to the tight infundibulum as it also required another puncture. It was planned to be removed during the re-look nephroscopy at a later date. It was duly communicated to Baldev Singh father of the patient by the respondent doctor in his OPD chamber on 1.4.2004.
16. It was further pleaded that the attendants of the patient were always kept informed about the condition of the patient not only during her stay in the respondent hospital but also during the period when the patient was hospitalised in Sadbhavna Hospital. As the patient developed biochemical jaundice on 2.4.2004, her condition was discussed with Dr.Parmod Mittal Consultant Gastroenterologist (on mobile) as he was out of station. It was discussed with the attendants of the patient. The patient was shifted to Sadbhavna Hospital because the respondent doctor was also a consultant to the said hospital. That Sadbhavna Hospital has better supportive and medical facilities.
17. It was further pleaded that the condition of the patient regarding decreasing urine output associated with jaundice with increased blood pressure and shortness of breath was discussed with Dr.Sudhir Verma. It was decided that she would be better served in Sadbhavna Hospital. Moreover, the services of the specialists namely Dr.Parmod Mittal DM Gastroenterology and Dr.Jagatjit Singh DNB Nephrology were available there. Both these doctors were visiting First Appeal No.1603 of 2005 9 consultants with Sadbhavna Hospital. It was denied if Sadbhavna Hospital was only a heart centre. It was a multispeciality hospital having multiple specialists/super specialists on its rolls. It was registered as a multispeciality centre with a host of organisations.
18. It was further pleaded that even in more specialised hospital where PCNL is done regularly, the initial puncture was made by the operating urologist only. The Urologists dealing with the kidney problems and procedures on regular basis have a far better understanding of the intra renewal anatomy and vasculature of the kidney. During the practice of the respondent doctor, he had been making the initial puncture himself. It was common to have turbidity of the urine/flakes in the urine if one was dealing with stone disease of the urinary tract. The urine was sent for C/S as a precautionary measure. PCNL was carried out during the same Anaesthesia as pre-operative urine culture/sensitivity had not shown any evidence of infection of the urine. Moreover, adequate antibiotics therapy was started in the pre-operative period. The urine for C/S was sent so that in case of any infection, appropriate antibiotics could be changed later on. Finally, the specimen sent for C/S was reported to be sterile on 2.4.2004. The PCNL could be done in malrotated kidneys. The PCNL is done under fluoroscopy imaging of real time basis where the actual calyceal pattern and the needle puncture placement could be accurately made out by injecting the radio opaque dye through the pre-placed ureteric catheter (the procedure is known as RGP and the same was performed). It was seen on real time imaging that the kidney was located in its normal position and the calyces containing the two big sized calculi were pointing in the posterior direction. This was the commenst type of malrotation (unlike major malrotations like Horse shoes kidney where the kidney is not only malrotated to a great extent but also it located at a lower level and also has aberrant blood supply).
19. It was further pleaded that renogram to show the position of the vessels is never done by anybody conversant with percutaneous procedures on the kidney. Renogram is a functional study and not at all helpful in delineating the First Appeal No.1603 of 2005 10 kidney vasculature. At no point of time, there was any evidence that the procedure had resulted in internal bleeding/injury. These allegations were denied. It was also denied if the actual number of punctures was not mentioned by the respondent doctor in the transfer note. Two punctures were made in the kidney to access the stones located in the different calyces with narrow necks. It was duly mentioned in the transfer note. In fact, 3-4 punctures are commonly made in the kidney to have access to various stones fragments especially in cases of staghon calculi. It was also denied if the removal of stone was not mentioned in the treatment record. It was normally to have dark blood stained urine to come out when the nephrostomies are opened after clamping. This usually clears up in a fiew days time.
20. It was also denied if in the post operative period were not elaborated in the transfer note (a) urine output decreased abruptly (b) the patient developed jaundice (c) restlessness was also mentioned. The patient had developed high blood pressure for which appropriate treatment was started promptly at the outset (NG drip) in Sadbhavna Hospital. The patient was transferred to Sadbhavna Hospital in a transparent manner and after due discussion with the relatives. There was nothing to hide for the respondent doctor. It was a transfer note and not the discharge summary when the patient was transferred to Sadbhavna Hospital for proper management.
21. It was, however, denied if the report of the DMC revealed any negligence on the part of the respondent doctor. As a matter of fact, the patient was being looked after by the respondent doctor with utmost care in the respondent hospital as also in Sadbhavna Hospital. The patient was being treated as a case of post PCNL, sepsis and septicaemia in Patiala. Appropriate steps were taken at the appropriate time. The patient was also planned for a Hemodialysis on 5.4.2004 under the care of Dr.Jagatjit Singh, DNB Nephrology. However, the patient was transferred to DMC in consultation with her attendants. First Appeal No.1603 of 2005 11
22. It was denied if the appellants had spent a sum of Rs.7 lacs on the medical treatment of Jasbir Kaur patient. The respondent doctor had charged only a sum of Rs.6000/- from the patient. The amount stated by the appellants was highly inflated. It was repeatedly denied if there was any medical negligence on the part of respondents No.1 and 2. Hence, dismissal of the complaint was prayed.
23. The New India Assurance Company impleaded as respondent No.3 also filed the written statement. It was admitted that the respondent doctor had taken the professional indemnity insurance policy from respondent No.3 for the period from 18.3.2004 to 17.3.2005 but it was denied if the patient was earning a huge amount per month or if the appellants had employed maid servant @ Rs.3000/- per month. It was also denied if the appellants were entitled to the insurance claim of Rs.17 lacs or if the respondent insurance company was liable to pay the same. Dismissal of the complaint was prayed.
24. Respondents No.4, 5 and 9 filed the joint written statement. It was pleaded that Sadbhavna Hospital was a well known multi speciality and critical care hospital in Patiala. It provided medical services of all types. It was being run by the specialists and super specialist doctors.
25. It was further pleaded that the patient was examined and provided medical treatment by a team of doctors including the respondent doctor (MS Surgery, Mch. Urology), Dr.Sudhir Verma (MD Medicines, DNB Nephrology), Dr.Parmod Mittal (MD Medicines, DM Gastroenterology) and Dr.Tarundeep Bhatia (MD Anaesthesia) and others. All these doctors were competent in their respective fields and they had provided the best medical treatment to the patient.
26. It was further pleaded that the condition of the patient was not improving. It was, therefore, decided by the team of the aforesaid doctors in consultation with the attendants of the patient in the best interest of the patient to shift her to the DMC on 5.4.2004. The patient had remained in Sadbhavna Hospital for a period of 2 days only. She was properly examined, medically treated and monitored which was recorded in the discharge summary and other First Appeal No.1603 of 2005 12 relevant record. It was denied if the appellants were the consumers qua respondents No.4, 5 and 9 or if any medical negligence was committed by respondent No.5.
27. It was further pleaded that the patient was operated in the respondent hospital on 31.3.2004 by the respondent doctor. The subsequent eventful course was jaundice, restlessness and low urine output. On admission in Sadbhavna Hospital on 2.2.2004, the patient had shown the restlessness, mild fever, jaundice, respiratory distress, low urine output (oligiura). She had severe hypertension of acute onset. On preliminary examination, a provisional diagnosis of post OP. PCNL (31.3.2004). Hypertension, Acute Hepatitis (? Septic? Blood transfusion related). Acute renal failure, respiratory distress ? (ARDS? Fluid overload) was kept.
28. It was further pleaded that Sadbhavna Hospital was a multi speciality hospital. It was well equipped with advanced intensive care facilities. The patient was accompanied by the respondent doctor as he had felt the need of advanced critical care at Patiala for his patient. The family members of the patient also accompanied him to Sadbhavna Hospital. The respondent doctor was visiting consultant in Sadbhavna Hospital and as stated above, the patient was properly attended by the specialist doctors. The patient remained admitted only with effect from 2.4.2004 (9.20 p.m.) till 5.4.2004 (8.00 a.m.). It was denied if there was any medical negligence on the part of respondent No.5. It was also pleaded that respondent No.5 had taken the professional indemnity insurance policy from the National Insurance Company Limited respondent No.9. Hence, it was prayed that the complaint be dismissed with costs.
29. The DMC respondent No.7 also filed the written reply. It was pleaded that the DMC is a Society registered under the Societies Registration Act. It was admitted that the patient was referred to the DMC and the patient was received in the DMC on 5.4.2004 at 10.31 a.m. During the course of her admission, the dialysis was done on the patient on 5.4.2004, 7.4.2004, 10.4.2004, First Appeal No.1603 of 2005 13 12.4.2004 and 18.4.2004. The patient was examined by Dr.B.S.Aulakh, M.ch. (Urologist), Dr.N.S.Khaira, DM Nephrologists, Dr.J.S.Sandhu, DM Nephrologists, Dr.Narinder Jain, MD (Medicine) and Dr.Updesh Singh Sidhu, DM (Chest Specialist) on various dates during the course of admission of the patient in the DMC. She was also attended by Dr.H.S.Pannu and Dr.Harmeet Singh Dhooria. Despite the best treatment provided to the patient, she could not survive and ultimately died on 21.4.2004. The patient was suffering from acute renal failure and sepsis at the time of her admission in the DMC on 5.4.2004. The prognosis was very poor. Approximately 25 to 35% of the patients with severe sepsis and 40% to 60% of the patients with septic shock died within 30 days. It was denied if there was medical negligence on the part of the doctors of the DMC or if the appellants were entitled to the compensation amount of Rs.17 lakhs from the respondents. Hence, dismissal of the complaint was prayed.
30. Respondent No.8 also filed the written statement. It was admitted that the DMC had taken the professional indemnity insurance policy from respondent No.8 which was valid from 18.6.2003 to 17.6.2004 for an amount of Rs.10 lacs and the same amount for an individual accident. It was denied if the respondents were liable to pay any compensation. Dismissal of the complaint was prayed.
31. Appellant No.1 filed his affidavit Ex.C1. The appellants also filed the affidavit of Raj Rani (who was employed as maid servant) as Ex.C2. The appellants also proved documents Ex.C3 to Ex.C161. Respondent No.5 filed his affidavit Ex.R1. Respondents No.4 to 5 also proved documents Ex.R2 to Ex.R15. Dr.Sandeep Puri, Medical Superintendent filed is affidavit Ex.R16 on behalf of respondent No.7. The DMC also filed the affidavit of Harmeet Pal Singh Dhooria as Ex.R17 and of Dr.Baldev Singh Aulakh, Consultant Urologist as Ex.R18. The DMC also filed documents Ex.R19 to Ex.R21. Respondent No.3 also filed the affidavit of K.B.Bindal, Divisional Manager as Ex.R22 and the professional indemnity insurance policy was proved as Ex.R23. The respondent doctor filed his First Appeal No.1603 of 2005 14 affidavit Ex.R24. Respondents No.1 and 2 also proved documents Ex.R25 to Ex.R29. Respondent No.8 filed the affidavit of Arvind Naaz, Vice President as Ex.R30 and copy of the insurance policy as Ex.R31.
32. After considering the pleadings of the parties and the affidavits/documents produced on file by them, the learned District Forum dismissed the complaint vide impugned judgment dated 19.10.2005.
33. Hence, this appeal.
34. The submission of the learned counsel for the appellants was that the respondent doctor had committed medical negligence while operating the patient on 31.3.2004 and in the subsequent treatment. Hence, it was prayed that the appeal be accepted and the impugned judgment dated 19.10.2005 be set aside and the appellants be awarded adequate compensation.
35. On the other hand, the submission of the learned counsel for respondents No.1 and 2 was that there was no merit in the present appeal and the same be dismissed.
36. Similarly, the learned counsel for respondent No.3 also submitted that there was no merit in the present appeal and the same be dismissed.
37. Similarly, the submission of the learned counsel for respondent No.7 was that there was no merit in the present appeal and the same be dismissed qua respondent No.7.
38. Similar is also the submission of the learned counsel for respondents No.8 and of respondent No.9 that there was no merit in the present appeal and the same be dismissed.
39. Record has been perused. Submissions have been considered.
40. The admitted facts are that Jasbir Kaur patient wife of Jasbir Singh appellant and the mother of other two appellants had pain in the abdomen. She had got herself subjected to ultrasonographic examination of the whole abdomen from the Radiology Centre of Dr.Sandeep Garg on 19.3.2004 (Ex.C4) in which the position of the left kidney was reported as under : -
First Appeal No.1603 of 2005 15
"LEFT KIDNEY : measures 90 mm - Relatively small in size with slightly lobulated outline. Normal site and echopattern. A calculus (23.7 mm) is seen at upper pole with localised dialation of upper pole calyx with another calculus (13.5 mm) at middle pole."
41. The impression after examination of the ultrasonographic was given by Dr.Sandeep Garg as under : -
"IMPRESSION : U.S.G. findings reveal small sized left kidney displaying calculi with localised dilation of upper pole calyx with adhesions in left adnexum."
42. It is pleaded by respondents No.1 and 2 that the patient had come to respondent doctor in the OPD on the same day and her problem was diagnosed as having left recurrent renal calculi on the basis of the ultrasound report which she had with her (middle and superior calyces).
43. The respondent doctor had advised the patient to get Intra Venous Pyelogram (IVP) done. The patient got conducted this test on 29.3.2004 (Ex.C6). It was shown to the respondent doctor on the same day. It was found by the respondent doctor from IVP report that the patient had minor degree of malrotation of the left kidney along with 2 big calculi in the superior and the middle calyces as well as multiple secondary calculi in the inferior calyx. The respondent doctor has also pleaded that the proper pre-operative evaluation was undertaken by way of physical examination and the relevant investigations were made. The respondent doctor had advised the patient PCNL for the left renal calculi. The nature of the procedure and need for the blood transfusion were duly explained to the patient and to appellant No.1.
44. It was also not denied that on the advice of the respondent doctor, appellant No.1 had arranged two units of blood. Although the respondent doctor had advised appellant No.1 to arrange some blood from Rajindra Hospital Blood Bank, Patiala but appellant No.1 had brought it from the Civil Hospital, Fatehgarh First Appeal No.1603 of 2005 16 Sahib where appellant No.1 was working. It is also admitted that the patient was operated by the respondent doctor on 31.3.2004. The patient was referred by the respondent doctor to Sadbhavna Hospital on 2.4.2004 where she remained admitted till 4.4.2004. She was referred to the DMC on 5.4.2004 where the patient was admitted. She was medically treated by the DMC till 21.4.2004 when the patient had died.
45. It is also not disputed that the appellants had alleged in para 2 of the complaint that the appellants had spent an amount of Rs.7 lacs on the medical treatment of the patient but the respondent doctor has admitted in the written reply in the corresponding paragraph that the respondent doctor had taken only an amount of Rs.6000/- as medical fee. Therefore, the appellants were admittedly the consumers of the respondent hospital and the respondent doctor.
46. The law has also been settled by the Hon'ble Supreme Court that the initial onus to prove medical negligence is on the complainant but once the complainant had discharged the onus by proving prima facie case against the doctor/hospital, then it is for the doctor/hospital to explain the circumstances leading to the death of the patient. It was held by the Hon'ble Supreme Court in the judgment reported as "Smt.Savita Garg v. The Director, National Heart Institute, IV (2004) CPJ 40 (SC)" in the concluding para 10 as under : -
"In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is the First Appeal No.1603 of 2005 17 hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the institution/hospital than that of the claimant."
47. This judgment was followed by the Hon'ble National Commission in the judgment reported as "D.Rama Rajyam (Dr.) v. P.K.Vasudeva Rao and others, III (2007) CPJ 295 (NC)".
48. The submission of the learned counsel for respondents No.1 and 2 was that onus lies on the complainant to prove the medical negligence on the part of the respondent hospital/doctor. It was also submitted that the complainant is to lead some expert evidence to prove that the respondent doctor/hospital has committed medical negligence. In the present case, the appellants have not examined any doctor to prove if the respondent doctor had committed medical negligence.
49. This submission has been considered.
50. There is no doubt about the legal proposition as discussed above that the initial onus lies on the complainant to prove the medical negligence on the part of the doctor but once the prima facie case is made out then it is for the doctor to explain the circumstances which led to the death of the patient. It was also held by the Hon'ble National Commission in the judgment reported as "Ashok Kumar Upadhyaya and another v. Dr.D.N.Mishra (Professor) and others, I (2011) CPJ 194 (NC)" that it is not essential for the complainant to examine expert evidence if the medical negligence on the part of the respondents is proved otherwise. It was held as under : -
"40. Respondent Counsel has argued that, in the absence of expert medical evidence, it cannot be established that it was a case of medical negligence. In our view, this argument needs to be rejected. The law on this subject is very clear. The question whether expert medical evidence is necessary or not, has been First Appeal No.1603 of 2005 18 directly addressed by Hon'ble Supreme Court of India in V.Krishan Rao v. Nikhil Super Speciality Hospital, in the judgment delivered on 8.3.2010. The Court has held that -
'In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the For a without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these For a. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such evidence would be illusory."
51. So far as the facts of the present case are concerned, the respondent doctor has proved the bed head ticket as Ex.C3, according to which, the patient was admitted in the respondent hospital on 31.3.2004 and she was transferred to Sadbhavna Hospital on 2.4.2004 at about 7.45 p.m. It is specifically mentioned in the discharge/transfer summary Ex.C3 that the provisional diagnosis of the medical problem of the patient was "LEFT RECURRENT RENAL CALCULI In MALROTATED WITH CALIECTASIA". In the operative part of the discharge/transfer summary Ex.C3, it is mentioned that Cystoscopy Left PCNL (Two Punctures) under GA 31.3.2004 where the name of the Anaesthetist is First Appeal No.1603 of 2005 19 shown as Dr.G.S.Battu. The operative findings were recorded in this document as under : -
"OPERATIVE FINDINGS :
CPE/Left RGP :
Urethra/Bladder normal Flakes floating in the UB lumen urine (Sent for C/S) Bilateral UO normal Small renal pelvis with stones in the dilated calyces PCNL :
Stones in the two separate calyces. Accessed through separate kidney punctures as the neck of the calyces narrow and not permitting visualization the other calyces."
52. The post operative period is shown in this document as under : -
"POST OP PERIOD EVENTFUL :
Was detected to be having high S bilirubin on 2.4.2004 OT/PT also found to be raised. Was discussed with Gastroenterologist Dr.Parmod Mittal in the afternoon. Having persistent restless ness from 2.4.2004 morning through the vitals were well maintained. The urine output decreased suddenly. In view of the deterioration of the General condition it was discussed with Dr.Sudhir Verma and was decided to shift the patient to Sadbhavna Hospital where ICU facilities are available. The patient was finally transferred to the Sadbhavna Hospital at 7.45 pm on First Appeal No.1603 of 2005 20 2.4.2004 to managed under composite team of Gastroenterologist/Urolgist/Nephrologist and the cardiologist."
53. When it was noticed by the respondent doctor that the patient was having high S Bilirubin on 2.4.2004 and when he had found that the patient was having persistent restlessness from 2.4.2004 morning and when he had noticed that the urine output had decreased suddenly and when he had noticed in the operative findings that the neck of the calyces narrow and was not permitting visualisation of the other calyces, it was the duty of the respondent hospital to refer the patient to more specialist hospital on 2.4.2004 itself.
54. It is mentioned by the respondent doctor in the discharge summary/transfer summary that he had discussed with Dr.Parmod Mittal in the afternoon but in the written statement, it is pleaded by him that the matter was discussed with Dr.Parmod Mittal, Consultant Gastroenterologist on mobile as he (Dr.Parmod Mittal) was out of station (para 6 in the middle part of the written reply). It is also mentioned by the respondent doctor that in view of the deterioration of the general condition of the patient, the matter was discussed with Dr.Sudhir Verma. When Dr.Parmod Mittal was not available in the station and Dr.Sudhir Verma was not a Urologist, therefore, the discussion of the respondent doctor with Dr.Parmod Mittal, Gastroenterologist on mobile or general discussion with Dr.Sudhir Verma, M.D. Cardiologist could not have been helpful to the patient. Therefore, it was the duty of the respondent doctor to refer the patient to a more specialised hospital instead of transferring the patient to Sadbhavna Hospital.
55. The events mentioned by the respondent doctor in the discharge/transfer summary dated 2.4.2004 Ex.R2 were clearly related to the operation as the patient was operated on 31.3.2004. The decrease in urine output was clearly related to the functions of the kidney which was operated by the respondent doctor on 31.3.2004. The detection of high S. bilirubin on 2.4.2004 was a component of jaundice which was clearly related to mal-functioning of the First Appeal No.1603 of 2005 21 kidney. These events stated by the respondent doctor in the discharge/transfer summary clearly indicated something wrong done to the kidney during the operation performed by the respondent doctor on 31.3.2004 on the patient. All these circumstances were sufficient indication to the respondent doctor to refer the patient to a more specialised hospital for better management.
56. Moreover, in Sadbhavna Hospital, it was only the respondent doctor who was the consultant for Urology. It is pleaded by respondents No.4, 5 and 9 that Sadbhavna Hospital had a team of doctors namely Dr.B.P.Singh, MS (Surgery), Mch. (Urology) (respondent doctor), Dr.Sudhir Verma, MD (Medicines) DM (Cardiologists), Dr.Jagatjit Singh, MD (Medicines), DNB Nephrology and Dr.Parmod Mittal, MD (Medicines), DM Gastroenterologist and Dr.Bhatia, MD (Anaesthesia). It is pleaded in para 17 of the written statement filed by respondents No.4, 5 and 9 that "since it was felt that it was in the better interest of the patient to shift her to the DMC in view of her low urine output, rising creatinine levels and worsening respiratory status, a decision to the same effect was taken on 5.4.2004 at 8.00 a.m. well in time and in a transferable state of the patient". The decrease in urine output, high S. Bilirubin and restlessness in the patient was noticed by the respondent doctor on 2.4.2004 itself. Therefore, these were the circumstances sufficient for the respondent doctor to conclude on that day that the patient needed more specialised treatment/management. The decision which was taken by the respondent doctor on 5.4.2004 when the patient was already transferred to Sadbhavna Hospital. This discussion could have been taken by the respondent doctor on 2.4.2004 itself in the interest of the patient when he knew that there was no other specialist in Sadbhavna Hospital except himself
57. It appears that the respondent doctor wanted to keep the patient under his care to earn more money. That is why, instead of keeping the patient with himself, he transferred the patient to the Sadbhavna Hospital where he himself was the visiting doctor.
First Appeal No.1603 of 2005 22
58. If on 2.4.2004, the respondent doctor had concluded that the patient needed more specialised and proper treatment, therefore, instead of transferring the patient to Sadbhavna Hospital, the patient was required to be referred to the specialised hospital like DMC, PGI, CMC etc. The delay of 3 days which was caused by the respondent doctor in referring the patient to a more specialised hospital on 5.4.2004 was the wastage of time to handle the medical problem of the patient which clearly became irreparable and beyond control and led to the death of the patient. In the summary discharge dated 5.4.2004 Ex.C7, the circumstances were the same which were existing in the patient on 2.4.2004 but in more aggravated form and the jaundice had become apparent and by now, the patient had suffered the acute renal failure.
59. The patient was admitted in the DMC on 5.4.2004. The opening sheet/treatment chart in the DMC (Ex.R21) reads as under : -
"Fever x 3 days Jaundice x 3 days Urine output x 3 days Alt. seusorium x 3 days HOPI - Pt. was apparently well 5 days back when she was operated of Lt. Renal Calculus (PCNL - LT Kidney) at some Hospital after which developed Fever
- high grade not a/w chills/Rigos - Relieved with medicines"
60. It is pleaded by respondent No.7 that the patient was admitted in the DMC on 5.4.2004 at 10.30 a.m. The death summary of the patient given by the DMC has been proved by the appellants as Ex.C9. It is stated in the death summary Ex.C9 that the patient was admitted in the DMC with acute renal failure.
61. These facts, therefore, clearly reveal that the patient was admitted in the respondent hospital of the respondent doctor on 31.3.2004. She was operated on the same date. Events were noticed by the respondent doctor on 2.4.2004 First Appeal No.1603 of 2005 23 consequent to the operation which clearly revealed that the operation was performed with medical negligence and the consequences were noticed on 2.4.2004. Secondly, when the health of the patient had started deteriorating on 2.4.2004 itself, the respondent doctor wasted the time of the patient and of the appellants from 2.4.2004 to 5.4.2004 by transferring the patient to Sadbhavna Hospital. If the patient had gone herself to Sadbhavna Hospital, the respondent doctor could not have been liable for the wastage of that time but since the respondent doctor himself had transferred the patient to Sadbhavna Hospital, therefore, neither the patient nor the appellants had any option or alternative. Moreover, in Sadbhavna Hospital also, the patient was mainly treated by the respondent doctor who was on the visiting panel of Sadbhavna Hospital. The respondent doctor has not explained the circumstances which led to the acute renal failure as on 5.4.2004.
62. On the ultrasound report of the patient dated 3.4.2004 when the patient was in Sadbhavna Hospital, it had become clear to the respondent doctor that there were many small kidney stones in the upper and middle calyx. Either the efforts of the respondent doctor in breaking the stone in pieces when the patient was operated on 31.3.2004 had failed while some pieces of the stone were taken out and some were still lying in the kidney or as the respondent doctor had stated in the discharge/transfer summary (Ex.C3) that some kidney stones were still lying in the kidney which could not be noticed by him as the neck of the calyces was the narrow and was not permitting visualisation of the other calyces. When the respondent doctor himself was sure that some pieces of stone were not taken out even after the operation, therefore, it was the duty of the respondent doctor to refer the patient to more specialised hospital instead of referring to Sadbhavna Hospital where only he himself was the Urologist. This clearly reveals the malafide intention of the respondent doctor to prolong the stay of the patient under his control instead of taking a decision in the interest of the patient to refer her to more specialised hospital.
First Appeal No.1603 of 2005 24
63. So far as Sadbhavna Hospital and Dr.Sudhir Verma are concerned, there is no medical negligence on their part. Admittedly, Sadbhavna Hospital was more equipped not only with the equipments but also with more specialist doctors which were on visiting panel of Sadbhavna Hospital. The medical problem of the patient was to be sorted out by the respondent doctor who was the only Urologist on the panel of Sadbhavna Hospital.
64. Moreover, appellant No.1 had filed an application in the Court of Chief Judicial Magistrate, Patiala (Ex.R13) in which he had specifically alleged in para 2 as under : -
"2. That said Jasvir Kaur remained admitted in the said Sadbhavna Hospital from 2.4.2004 to 5.4.2004 and on being serious, she was then referred to Daya Nand Medical College and Hospital, Ludhiana on 5.4.2004. Due to the negligence committed by Dr.B.P.Singh, while operating upon the wife of the applicant, the said Jasvir Kaur died in the said DMC & H, Ludhiana on 21.4.2004"
65. Although, appellant No.1 had prayed that the doctor/Incharge of the Sadbhavna Hospital, Patiala may be directed to supply the bed head treatment file with all other medical record of deceased Jasvir Kaur but in para 2 of this application, the medical negligence is specifically attributed to Dr.B.P.Singh. No such medical negligence was alleged either against Sadbhavna Hospital or against Dr.Sudhir Verma or against the doctors of the DMC.
66. In view of the discussions held above, respondents No.4, 5, 7, 8, and 9 are discharged from their liability as no medical negligence has been proved against them.
67. The medical negligence is proved against Dr.B.P.Singh respondent No.2 and the respondent hospital alone as the events specified by the respondent doctor in the discharge/transfer summary (Ex.C3) clearly reveal that the First Appeal No.1603 of 2005 25 respondent doctor had not only committed medical negligence while operating the patient on 31.3.2004 but he also failed to refer the patient to more specialised hospital on 2.4.2004 when he had found that the patient needed more specialised treatment. Instead of adopting that course, the respondent doctor transferred the patient to Sadbhavna Hospital in order to keep the patient under his control only where he was the visiting doctor as Urologist.
68. No amount of compensation can compensate appellant No.1 who has lost his wife or appellants No.2 and 3 who have lost their mother. Therefore, the compensation is only a small consolation.
69. So far as Jasbir Kaur patient is concerned, appellant No.1 had filed the affidavit of Raj Rani who was allegedly employed as a maid servant after the death of Jasbir Kaur patient. The appellant had pleaded that Jasbir Kaur was doing the work of knitting and embroidery and was earning Rs.10,000/- per month but this story of the appellants appears to be imaginary. Therefore, it is taken that the patient was only running her house and was not earning anything in terms of money.
70. So far as the amount of compensation is concerned, it was held by the Hon'ble National Commission in Ashok Kumar's case (supra) as under : -
"50. The problem acquires added dimensions in case of a child, as observed by Hon'ble Supreme Court of India in New India Assurance Company Ltd. v. Satender and others, VIII (2006) SLT 368 = III (2007) ACC 46 (SC) = (2006) 12 SCC 60. The problem has been clearly spelt out in the following observations : -
'The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person.
First Appeal No.1603 of 2005 26 The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated bases. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."
71. In the facts and circumstances of this case, this appeal is accepted with costs of Rs.20,000/- and the appellants are awarded a sum of Rs.5 lacs as compensation. The respondent hospital had taken the medical professional indemnity insurance policy from respondent No.3. Therefore, the amount shall be payable by the insurance company respondent No.3. However, the costs of Rs.20,000/- shall be payable by Dr.B.P.Singh respondent No.2. If the payment of the insurance claim is not made within a period of 2 months after the receipt of a First Appeal No.1603 of 2005 27 copy of this order, then respondents No.1 to 3 would be liable to pay interest @ 9% p.a. on the aforesaid amount with effect from today.
72. The arguments in this appeal were heard on 18.03.2011 and the order was reserved. Now the order be communicated to the parties.
73. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (AMARPREET SHARMA) MEMBER (BALDEV SINGH SEKHON) MEMBER March 31, 2011.
Paritosh