State Consumer Disputes Redressal Commission
Shaikh Hussain Hamza vs Vintage Hospital & Others on 31 July, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
PANAJI - GOA
C.C. No. 36/2014
Mr. Shaikh Hussain Hamza,
of major age, Indian National,
married, residing at House
No. 1510/1, 21 Saldanha Plot,
Opposite Vidhya Prabhodini
High School, Porvorim,
Bardez, Goa. ............ Complainant
v/s.
1. Vintage Hospital,
represented by its director
Dr. S.S. Dubhashi, FRCS
having its registered office at
Caculo Enclave, St. Inez,
Panaji, Goa.
2. Dr. S.S. Dubhashi, FRCS
Caculo Enclave,
Vintage Hospital,
St. Inez, Panaji, Goa.
3. Smt. Renuka Kankonkar alias Vaishnavi
Flat No. 10, Ayodhya Apartment
Maratha Mill Road,
Miraj
District, Sangli
Maharashtra.
4. Dr. Janet,
Medical Officer on duty
C/o Vintage Hospital,
St. Inez, Panaji, Goa. .....Deleted
5. Dr. Stecy,
Medical Officer on duty
C/o Vintage Hospital,
St. Inez, Panaji, Goa. .....Deleted
2
6. Medical Stores at
Vintage Hospital represented by
Dr. S.S. Dubhashi, FRCS
Caculo Enclave,
St. Inez, Panaji, Goa.
7. Dr. S.S. Dubhashi, FRCS,
Proprietor of Vintage Medical Stores,
St. Inez, Panaji.
8. Smt. Sushma Gad,
presently working as
Chemist, at
Healthway Hospital,
Fontainhas, Panaji
Goa.
9. National Insurance Co. Ltd.,
Panaji Divisional Office - II
Souza Towers, 2nd floor,
Dr. Roque D'Souza Towers,
Near Municipal Garden, Panaji. .......OPs
Complainant is represented by Adv. Shri. M.S. Joshi.
OP Nos. 1, 2 and 7 are represented by Adv. Shri. A.R. Kantak.
OP Nos. 3 & 8 exparte.
OP Nos. 4 & 5 deleted.
OP No. 9 is represented by Adv. Shri. K.L. Bhagat.
Coram: Shri. Justice N. A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated:- 31/07/2015
ORDER
[Per Shri. Justice N. A. Britto, President] The complainant seeks to recover from the OPs compensation of Rs. 30 lacs on account of the death of his wife Mrs. Zarina Hussain Shaikh, aged 64 years.
32. There is hardly any dispute as to facts.
3. The complainant's wife the said Mrs. Zarina Hussain Shaikh was admitted under the care of Dr. Oscar Rebello, M.D., Special Consultant, in OP No. 1, Vintage Hospital on 19/6/14 as an known case of cirrhosis of liver with hepatocellalular failure with hyponatremia, and as per history given, she was suffering from drowsiness with history of fever, slurred speech, swelling of left leg with pain, redness, decreased urinary output and left lower limb cellulitis. She had fever 100º F, BP 120/60 mm of hg and occasionally responded to oral command. The patient was also referred to other consultants namely Dr. Sheetal Lawande, M.D., Nephropologist and Dr. Nilesh Talwadkar, M.S., Surgeon.
4. The complainant continued to be in the hospital till 29/6/14, on which day, her condition continued to be afebrile with BP of 120/80, with severe pain. She was prescribed by Dr. Oscar Rebello, amongst other medicines, I.V. Benzyl Penicillin 20 lac x 6 hly. The said injection was meant to be given intravenously.
5. The complainant went to the hospital pharmacy, OP No. 6, and purchased the medicines which were prescribed and which the complainant in turn gave to the nurse on duty. The complainant was given not I.V. Benzyl penicillin, to be given intravenously, but was given benzathine penicillin which was to be administered intramuscularly, and, the explanation given by Dr. S.S. Dubhashi, FRCS, the owner of the hospital, as well as the hospital pharmacy is that the drug I.V. Benzyl penicillin was out of stock and was not available for the last many months and it is on that account that the drug benzathine penicillin which is an equivalent drug in terms of the composition was delivered to the complainant. As per him, the drug 4 benzathine penicillin is equivalent to I.V. Benzyl penicillin but is a little slow as far as giving relief to the patient.
6. At about 12.30 p.m. OP No. 3, nurse Ms. Vaishnavi who was a qualified nurse according to Dr. Dubhashi, gave a intra dermal test dose to the patient Mrs. Zarina Hussain Shaikh and as there was no reaction, at about 1.00 p.m. the said nurse gave a full dose of benzathine penicillin intravenously on the left hand, which was otherwise to be given intramuscularly, and immediately the patient Mrs. Zarina Shaikh developed one episode of tonic chronic convulsion. The patient was shifted to ICU but all possible measures of resuscitation failed and the patient was declared dead at 2.15 p.m. The complainant's son Hashim Raza Hussain declined to have a postmortem done by putting his signature on the order sheet of the hospital. Dr. Oscar Rebello, M.D. then issued a medical certificate (copy at page 40) stating that Mrs. Zarina Shaikh died due to a natural cause - due to anaphylactic shock (antecedent cause) due to septicemia, cirrhosis and cellulitis (immediate cause). Later, in the course of proceedings, Dr. Oscar Rebello, has filed an affidavit dated 9/4/15 stating that:
"13. I say that I had issued a Medical Report to Mr. Sheik Hussen at his request sometimes on 06/07/2014 as he wanted to know as to what was the cause of the death of his wife. I say that the Medical Report was issued after going through the history and the medicines prescribed and as per the documents maintained by the Vintage Hospital. Copy of the same is Annexed hereto and marked Exhibit "B".
14. I say that on 07/07/2014, Mr. Sheik Hussen brought to my notice that I had prescribed Injection Benzyle Penicillin whereas the medicine given to Sheikh Hussen by the Pharmacy i.e. Medical Stores 5 of the Vintage Hospital was PENCOM-12 Injection which was an Intramuscular Injection.
15. I say that after going through the documents maintained by the Hospital on 07/07/2014, I realized that the death of the patient Mrs. Zarina Sheik was on account of wrong injection supplied by the pharmacy and injected intravenously by the sister on duty.
16. I say that the PENCOM-12 Injection is necessarily to be given as an Intramuscular Injection and cannot be given Intravenously.
17. I say that after going through the records on 07/07/2014, I realized and came to the conclusion that the death of Mrs. Zarina Sheik was on account of wrong injection given intravenously. I say that PENCOM-12 Injection also known as Benzathine Penicillin - G injected in the veins results in serious side effects, including Death.
18. I say that as per Medical Instructions, injecting Penicillin (G) (Benzathine Penicillin) into the veins results in Cardio Respiratory arrest and Death."
7. The explanation given by Dr. S.S. Sanzgiri in his affidavit-in- evidence, is that it is possible that the patient died on account of the reaction of the drug penicillin, and it is also possible that the patient died on account of the intravenous administering of the drug but the correct cause of death could be determined with certainty only by a postmortem which was specifically declined by the family members of the deceased Zarina. Dr. Sanzgiri also explained that the condition of the patient was very bad and the same necessitated prescribing the last drug penicillin which is not done in normal course and that the said Zarina was a case of kidney failure and severe infection of leg thereby leading to septicemia. Dr. Sanzgiri has further explained that it is incorrect to say that there were any acts on the part of OP which 6 amounts to negligence or deficiency in service or breach of duty on the staff of the hospital. According to him, Dr. Oscar Rebello must have taken all steps in the best interest of patient with his knowledge and experience and that must have also been aware that the death of the patient on account of a very bad condition could have come at any time and it is on account of this facts that Dr. Oscar Rebello had certified the cause of death after going to the medical records of the hospital and it is on that account that Dr. Rebello also did not suggest postmortem examination to be done of the patient.
8. The first aspect to be looked into, is to find out whether there was any negligence or deficiency in service on the part of the OP hospital pharmacy. In one of the earliest cases, after coming into force of the C.P. Act, 1986, the Apex Court in Poonam Verma vs. Ashwin Patel and ors., AIR 1996 SC 2111, has held that:
"13. Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do..."
"14. The definition involves the following constituents:
1. A legal duty to exercise due care;
2. Breach of duty; and
3. Consequential damages"
"15. The breach of duty may be occasioned either by not doing something which a reasonable man, under given set of circumstances would do, or by doing some act which a reasonable prudent man would not do."
9. In the case of Jacob Mathew vs. State of Punjab, 2005 (6) SCC 1, a three Judge Bench of the Hon. Supreme Court has held that 7 negligence is the breach of duty caused 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. The essential components of negligence are three: "duty", "breach" and "resulting damage".
10. In Malay Kumar Ganguly, 2009 CTJ 1064, the Apex Court has held that:
"Negligence means "either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; is rather a comparative term. In determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstance have to be taken into account. "
"Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances because it is in violation of statue or ordinance or is contrary to the dictates of ordinary prudence."
11. Admittedly, the treating doctor, Dr. Oscar Rebello, had prescribed to the patient Mrs. Zarina I.V. benzyl penicillin, to be given intravenously but what was given to the complainant was Benzathine Penicillin, Pencom-12, to be given intramuscularly. On behalf of the complainant, it is submitted that one drug was prescribed but another was given and what was prescribed was not given, therefore there is negligence. On the other hand, on behalf of the OPs, it is contented that what was prescribed was out of stock, and therefore Benzathine penicillin was given, which in medical terms is an equivalent drug 8 but slow in giving relief to the patient. On behalf of the complainant, it is also submitted that the OPs have produced nothing to say that I.V. Benzyl Penicillin was out of stock. On behalf of the OPs it is submitted that the onus was on the complainant to prove the same.
12. Admittedly, the complaint has not been contested by the pharmacist, Ms. Sushma, OP No. 8, as well as by the nurse, Smt. Vaishnavi, OP No. 3. Both have left the pharmacy and the hospital respectively after the incident and they had to be served with notices, elsewhere. A party is always expected to give best evidence available and the best evidence could have come only from Ms. Sushma, the pharmacist. OP No. 2, Dr. Dubhashi is not expected to know what is or what is not available in the pharmacy. We, therefore, are unable to accept that Ms. Sushma, the pharmacist gave to the complainant Benzathine penicillin to be given intramuscularly, because Benzyl Penicillin 20 lac, to be given intravenously, was not available. It is by sheer neglect that Ms. Sushma, OP No. 8 gave a wrong drug to the complainant. Secondly, even assuming what was prescribed I.V. Benzyl Penicillin was not available, it was the duty of Ms. Sushma to have told the complainant about it; who in turn would have reported to Dr. Oscar about it, and Dr. Oscar would decide what would be the equivalent drug; Ms. Sushma, the pharmacist was not competent to decide what would be the equivalent drug. Moreover, Dr. Oscar with his knowledge and experience, as stated by Dr. Dubhashi, would not have prescribed a drug that is not available. It was the duty of Ms. Sushma as a pharmacist of ordinary prudence to have told the complainant that the drug prescribed was not available and there her duty would end. In not doing so she committed breach of duty. It is a case of negligence on her part, for which OP No. 2 Dr. Dubhashi, is vicariously liable.
913. The second aspect to be looked into is the cause of death of the complainant's wife Mrs. Zarina.
14. The nurse on duty Mrs. Vaishnavi, OP No. 3, gave a intradermal test dose to the patient Mrs. Zarina on the left hand at about 12.30 p.m. and at about 1.00 p.m. Mrs. Vaishnavi gave the full dose of Benzathine penicillin, PENCOM -12, intravenously which was otherwise to be given intramuscularly, and immediately the patient Mrs. Zarina developed one episode of tonic chronic convulsion. She suffered cardiac arrest; her pulse was not recordable, heart rate was not recordable, B.P. was not recordable. All possible measures at resuscitation were tried and failed. She was declared dead at 2.15 p.m.
15. At the time of admission of this complaint, Shri. Joshi had placed on record certain information taken from the net Drugs.com to the effect that penicillin G Benzathine is for deep intramuscular injection only and that inadvertent intravenous administration of penicillin benzathine has resulted in cardio respiratory arrest and fatalities and that injection of any penicillin into or near an artery or a nerve is contraindicated due to risk of severe neurovascular damage.
16. Dr. Oscar Rebello, in his affidavit has now stated that the death of patient Mrs. Zarina was on account of wrong injection supplied by the pharmacy and injected intravenously by the sister on duty. Dr. Dubhashi, OP No. 2, has also stated that it is possible that the patient Mrs. Zarina died on account of the intravenous administering of the drug but has added to say that the correct cause of death could be determined with certainty only by postmortem.
17. We must remind ourselves that we are dealing with civil proceedings and the standard of proof is by balance of probabilities.
10The sequence of events would show that the immediate cause of death of the patient Mrs. Zarina was due to giving the full dose of benzathine penicillin - PENCOM - 12 intravenously which was otherwise to be given intramuscularly. It is stated on behalf of the OPs that Mrs. Vaishnavi was a qualified nurse and if that be the case it was expected of her, atleast to read the label on the vial of benzathine penicillin injection PENCOM-12 which clearly showed that it is meant for intramuscular use. This is again a case of negligence or deficiency in service on the part of Mrs. Vaishnavi, the nurse on duty for whose action Dr. Dubhashi, OP No. 2, is vicariously liable. Shalan S, Jadhav vs. Prakash Choukwale, 2008(1) CPR 46, relied upon by Shri. Bhagat, has no application to the facts of this case.
18. Shri. Kantak, the lr. advocate of OP Nos. 1, 2 and 7 has submitted that the condition of the patient Mrs. Zarina was very bad and she could have died at any moment. Lr. advocate has submitted that she was suffering from advanced stages of cirrhosis of liver as well as cellulitis and was not in the position to do any work and she could have died of the said sicknesses she was suffering from at anytime. Lr. advocate has tried to compare the death of Mrs. Zarina like a fall of a dried branch of a tree which fell because it was bound the fall and not because a sparrow sat on it. Lr. advocate has also tried to throw some light on the illnesses of Mrs. Zarina was suffering, by referring to Wikipedia:
(a) Cirrhosis is a condition in which the liver does not function properly due to long term damage. Typically, the disease comes on slowly over years. Early on, there are often no symptoms. As the disease worsens, a person may become tired, weak, itchy, have swelling in the lower legs, develop yellow skin, bruise easily, have fluid build up in the abdomen, or develop spider-like blood vessels on the skin. The fluid build-up in the abdomen may become spontaneously infected.11
Other complications include hepatic encephalopathy, bleeding from dilated esophageal veins, and liver cancer. Hepatic encephalopathy results in confusion and possibly unconsciousness. Deaths from cirrhosis have increased from 0.8 million in 1990 to 1.2 million in 2013.
(b) Cellulitis is a bacterial infection involving the skin. It specifically affects the dermis and subcutaneous fat. Signs and symptoms include an area of redness which increases in size over a couple of days. The borders of the area of redness are generally not sharp and the skin may be swollen. While the redness often turns white when pressure is applied this is not always the case. The area of infection is usually painful. Lymphatic vessels may occasionally be involved and the person may have a fever and feel tired. The legs and face are the most common site involved, though cellulitis can occur on any part of the body. The leg is typically affected following a break in the skin. Other risk factors include obesity, leg swelling, and old age. For face infections a break in the skin beforehand is not usually the case... Potential complications include abscess formation. Around 95% of people are better after 7 to 10 days of treatment. Cellulitis in 2013 resulted in about 30,000 deaths worldwide.
19. The complainant was in Vintage Hospital from 19/6/14 to 29/6/14 for about 10 days and there is nothing on record to suggest that there was any improvement in her condition in which she was admitted and for that reason probably that Dr. Oscar Rebello initially gave her a natural death certificate of having died due to anaphylactic shock due to septicemia, cirrhosis and cellulitis which only would show that a condition was indeed bad. Dr. Dubhashi, OP No. 2, has also stated that her condition was pretty bad and as such the doctor had prescribed the last antibiotic drug being penicillin. From the facts on record, we are inclined to believe, that her health condition was 12 very bad, nay critical but her death was hastened by the nurse Vaishnavi by her negligent act of giving the said intramuscular injection intravenously. The immediate cause of her death was due to the negligent act of the nurse Smt. Vaishnavi for which Dr. S. S. Dubhashi, OP No. 2 is vicariously liable. This in a way put an end to her suffering and that of her family but we must remember that negligence is negligence and anybody could have become victim of it.
20. The third aspect is regarding compensation. The complainant has claimed a lump sum Rs. 30 lacs without any breakup under the different heads or details which might have assisted this Commission in assessing just and adequate compensation. The complainant has produced medical bills of Rs. 53,650/- and Rs. 764/-, and, Shri. M.S. Joshi, the lr. advocate of the complainant, has submitted that adequate compensation be awarded to the complainant by considering that the deceased was the wife of the complainant who retired as a Deputy Commissioner of Custom and Central Excise Department. Lr. advocate has placed reliance on Dr. Balram Prasad vs. Dr. Kunal Saha & ors., 2013 (4) CPR 284.
21. On the other hand, it has been submitted, on behalf of the OPs, by Lr. Adv. Shri. Kantak, that the complainant could have died of the very illnesses she was suffering from and as such the OPs are not liable to pay any compensation. Alternatively, Shri. Kantak has submitted that they have a professional indemnity policy with OP No. 9. Here, it may be stated that with the consent of the complainant and OP Nos. 1, 2 and 7, that OP No. 9 was added as a party to the complaint after it was disclosed that OP Nos. 1, 2 and 7 had a professional indemnity policy with OP No. 7 valid for period from 10/7/13 to 9/7/14. Shri. K.L. Bhagat, the lr. advocate of OP No. 9 has supported the submissions made by Shri. Kantak, the lr. advocate of OP Nos. 1, 2 and 7.
1322. As regards pecuniary loss, in our view, the complainant would not be entitled to the expenditure incurred by the complainant on the treatment of his wife prior to 1.30 p.m. of 29/6/14. The complainant has stated that his wife had to be shifted to the ICU at about 1.30 p.m. for which the complainant was charged Rs. 12,000/- extra for the period from 1.00 p.m. to 2.15 p.m. This statement of the complainant has gone unchallenged and, therefore, in our view, the complainant would be entitled to the said sum of Rs. 12,000/- as pecuniary loss suffered by the complainant.
23. The complainant's wife appears to have been only a house wife who did not have any income of her own. The multiplier method was considered to be ordinarily the best method in assessing compensation payable and this view was held by the Apex Court in Susamma Thomas, 1994 (2) SCC 176, Sarla Verma, 2009 (6) SCC 121 and reaffirmed in Reshma Kumari, 2009 (13) SCC 422. In Susamma Thomas (supra) the Apex Court held that the multiplier method is logically sound and legally well established. In Sarla Verma (supra) the Apex Court held that the multiplier method is the proper and best method for computation of compensation as there will be uniformity and consistency in the decisions which view was reaffirmed in Reshma Kumari (supra). However, if we are to go by the multiplier method, then the compensation payable would be required to be determined on the basis the notional income of the wife of the complainant and that would be Rs. 15,000/- per annum. 1/3rd thereof would be required to be taken as her personal expenses and with the use of the multiplier of 7, as per the formula adopted in Sarla Verma, the compensation payable would be minimal. For that reason presumably that the Apex Court in Dr. Balram Prasad (supra) relying on other decisions, held that the multiplier method did not inspire 14 confidence to determine the compensation under the head of loss of dependency (see para 97 of Dr. Balram Prasad (supra)). We must not forget that determination of compensation for the loss of the wife to a husband has always been baffling, and, courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by a clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of the husband and the children including cooking of food, washing of clothes, etc. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes, etc. but she can never be a substitute for a wife/mother who renders the services to her husband and children (see paras 84 and 139 of Dr. Balram Prasad (supra)). However, we must hasten to add that in this case the complainant's wife was admitted and continued to be in a very precarious state of health, and the wrong injection, only hastened her death.
24. In Dr. Balram Prasad, in para 149, the Apex Court has stated that doctors, hospitals and nursing homes and other connected establishments are to be dealt strictly, if they are found to be negligent with patients who come to them pawing all their money, with the hope to live a better life with dignity. The patients are entitled to be treated with dignity which not only forms their fundamental right but also their human right. Therefore, it is the duty of the tribunals and/or the Fora to consider all the relevant facts and evidence in 15 respect of facts and circumstances of each and every case and award just and reasonable compensation.
25. Considering the facts of this case, therefore, in our view, a sum of Rs. 5 lacs (non pecuniary loss) plus Rs. 12,000/- (pecuniary loss) would be just and reasonable compensation to be paid to the complainant, on account of the death of his wife, which we direct shall be paid to the complainant jointly and severally by OP Nos. 2, 3, 8 and 9 within a period of 30 days failing which interest at the rate of 9% shall be paid thereon until it is paid, plus costs of Rs. 5000/-.
26. Complaint disposed off on the above terms.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A.Britto ]
Member President
/sp