State Consumer Disputes Redressal Commission
Rita Virmani vs Woodstock Nursing Home Pvt. Ltd. on 17 November, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 17-11-2006 Complaint Case No. C-198/1995 Ms. Rita Virmani, Complainant. D/o Late Mr. J.R. Virmani, Through L-17, Lajpat Nagar-III, New Delhi. Versus 1. M/s Woodstock Nursing Home Pvt. Ltd. Opposite Party No.1 C/o Toshi Orthopaedic Centre, E-34, Greater Kailash-I, New Delhi. 2. Dr. S.G. Nijhara, Opposite Party No.2 C/o Toshi Orthopedic Centre, E-34, Greater Kailash-I, New Delhi. 3. Dr. Virender Mohan,, Opposite Party No.3 361, Nilgiris, Alaknanda, New Delhi. CORAM : Justice J.D. Kapoor- President Mr. 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, PRESIDENT (ORAL) Complainant has filed this complaint u/s 12 of the Consumer Protection Act, 1986 seeking compensation of Rs. 20.00 lacs on account of having suffered disability due to medical negligence of Opposite Parties (in short O.Ps.) in operating her at wrong location, and not at the place where the actual problem existed.
2. Allegations of the complainant lie in a moderate compass and are like this:-
3. That in or about the last week of February, 1994, complainant approached the Opposite Party No.2 (in short OP No.2) for treatment of presumed pain on her ankle of the right leg. OP No.2 without any proper diagnosis and relevant tests, immediately started the treatment and applied crape bandage on the said ankle. Instead of getting any relief the complainant started having severe pain and immediately pop slap was done by the OP No.2. The said OP No.2 introduced himself as one of the best of Orthopedic Surgeon in and around Delhi and convinced the complainant that she was at the right place and would get the best of treatment.
4. As directed by OP No.2, the complainant visited him and on reviewing the condition, linked the pain of the complainant with vertebrae L-4 and L-5 of the Lumber region of the Spinal Cord of the complainant. The OP No.2 with ulterior and malafide intentions, about which the complainant came to know at the later stage, advised her to get a C.T. Scan done from a particular clinic of his choice.
5. After going through the report of the scan, the OP NO.2 stated that the case of the complainant was very complicated and wanted to consult another Doctor for the same. The complainant was referred to OP NO.3.
During the treatment, the OP No.2 applied physiotherapy which was done at the clinic of the OP No.2. OP No.3 for his own vested interest asked the complainant to get another C.T. Scan done of L-4 and L-5, from another clinic of his choice.
6. All through the treatment the complainant suffered very severe pain and unbearable attacks, whereby she would have scratching and she would even not be in a condition to prevent herself from crying and screaming. The OP No.2 & 3 without any proper diagnosis only administered pain killing injections.
7. OP No.3 in May, 1994 came to the office of the complainant and categorically assured her, with malafide intentions and ulterior motives, that an operation of L-4 and L-5 of Lumber Region of the Spinal Cord was to be conducted. However, the OP No.3 in presence of two colleagues of the complainant frightened her, that in case the operation was not conducted immediately, she would suffer paralytic attack. OP No. 2 & 3 for their own vested interests wanted the operation to be done at the Nursing Home of OP No.1.
8. On 01-07-1994 the complainant on the advice of OP No.2 & 3 got herself admitted with OP No.1 hospital where she was immediately told to pay an advance of Rs. 5,000/-. A room of Rs. 800/- per day was allotted to the complainant.
9. Complainant was allegedly operated upon by OP No .2 & 3 with the help of other local doctors of OP No.1 for about four hours. Immediately after the operation the complainant started having most serious problems and could not urinate for about 10 days and had continuous fever for a month thereafter. The OPs No. 2 & 3 consoled the complainant by stating that these were minor post-operational problems and that she would be improving within a short time. OP No.2 forced a nurse on the complainant at the rate of Rs. 300/- per day and she was asked to leave the Nursing Home, even though she was in a precarious condition.
10. The OPs No.1 to 3 even did not handover/supply the details of the papers/documents regarding the treatment/operation and medication of the complainant. The complainant was aghast to learn from one Dr. Ashok Kumar of AIIMS, who happened to be a client of the complainant that no operation of L-4 and L-5 was at all required. On referring to another Doctor of AIIMS, the complainant was advised to stop taking all medicines advised by OP No.2. The complainant recovered to some extent after the guidance and advice of the Doctors of AIIMS.
11. That on 13-11-1994, the complainant suffered another attack in her office at Safdarjung Enclave, New Delhi. One Dr. G.C. Dass having a clinic nearby was called who advised the complainant to get another X-ray of Spinal Cord and an E.S.R. was also conducted. Dr. G.C. Dass informed her that no operation of L-4 and L-5 was ever conducted by the OPs No.2 and 3. She was informed that no operation was conducted 6 cm. above the spot stated by OPs No.2 & 3 and instead, L-2 and L-3 had been operated. The Spinal Cord had bulged out a bit because of operation carried out by the OPs.
12. That complainant had been forced to spend Rs. 2 lacs (Rs. Two Lacs) on the alleged treatment and operation, tests, X-rays, medicines, C.T. Scan etc. and running around when nothing as such was required. The operation of L-4 and L-5 as stated in the Discharge Slip of OP No.1 was never carried out by the OPs.
13. According to the complainant the above act of the OPs amounts to deficiency in service whereby they being experts in the field have with malafide and ulterior motives, betrayed the complainant and caused irreparable loss and injury which otherwise cannot be compensated in terms of money.
The complainant has suffered grave mental agony, harassment, torture by wrongful treatment she had to undergo as per the instructions of the OPs. Hence this complaint.
14. While denying the allegations of the complainant in toto OP No.2 and 3 have filed joint version which, in brief is as under:-
(i) That OP No.2 was not the main Doctor who conducted the surgery. There are no specific allegations against OP No.2 and all the allegations are against OP No.3.
(ii) OP No.2 referred the complainant to OP No.3 who was a Neuro Surgeon having 40 years experience in Neuro Surgery and it was OP No.3 who advised the surgery and conducted the surgery.
(iii) After surgery the problem of compression at L-4 & L-5 did not subsist and the problem of pain in the leg and back also did not subsist.
(iv) After the surgery the complainant was treated by AIIMS for TB and for that also it is recorded by the AIIMS that she did not take medicine regularly.
(v) No foreign particles were left in the body during surgery by OP No.3 as in the X-ray conducted after the surgery no foreign particle or instrument appeared. Only in the MRI report some red fats has shown which can be due to various reasons also like metal dust etc.
(vi) Surgery was conducted by OP No.3 at right place as according to OP No.3 on clinical examination he was of the opinion that the problem lies at L-2 and L-3 as he found a blood vessel at L-2 and L-3.
(vii) Complainant did not get the CT Scan done as advised by OP No.3 to clarify about the clinical examination therefore OP No.3 made a cut at L-2 and L-3 and removed the problem and he checked L-4 and L-5 by putting cathetral.
(viii) The complainant is only trying to cash upon the wrong mention on the discharge slip that the surgery is conducted in L-4 & L-5. The discharge slip is not filled by OP No.2 but the same is filled by some junior doctor employed by OP No.1 and on the instructions of OP No.3.
(ix) The complainant has no problem after the surgery and she was treated for different problems after the surgery.
(x) Complainant even took a trip to Colombo soon after the surgery.
15. While refuting the stand taken by the OPs on factual matrix as well as medical aspect of the operation and treatment given and operation conducted by the OP No.2 & 3 respectively, the counsel for the complainant has contended that it was false claim of OP No.2 that he was not main doctor who had operated upon the complainant.
He was only instrumental in getting the operation of the complainant done by OP No.3 and further that the operation was carried out jointly by OP No.2 and
3. OP No.2 was Orthopaedic Surgeon and OP No.3 was Neuro Surgeon and since surgery was to be conducted upon the spine and therefore presence of Orthopaedic as well as Neuro Surgeon was necessary. In the discharge summary (page 36) the OP No.1 Institute clearly mentioned that the Consulting Surgeon was OP No.2 Dr. Nijhara and there is no mention of OP No.3 in the discharge summary either as operating Surgeon or as Consultant.
16. The version of OP No.2 & 3 that the complainant was operated upon L-4 & L-5 whereas X-ray report and CT Scan shows that problem was in L-2 and L-3 and as per discharge slip complainant was operated for L-4 and L-5 whereas according to them the real problem existed at L-2 and L-3 but it was after six months after the operation that certificate dated 28-03-1995 was issued that complainant was operated at L-2 & L-3. According to the counsel for the complainant the documents show that the complainant was having problem of L-4 & L-5 and there was no occasion for operating the complainant upon L-2 & L-3.
17. In nut shell the complainants allegation is that on the recommendation of OP NO.2, she approached OP No.3 who operated the complainant at wrong place that is instead of operating at L-2, L-3 he operated upon L-4, L-5 and subsequent version is a cover up story and this is borne out from the record of AIIMS where the complainant had gone on being dissatisfied with the treatment of the OP No.3. Prior to that OP No.2 is alleged to have given the medicine for curing the TB and since there was no co-relation between surgery of L-2 & L-3 for that purpose L-4 & L-5 with T.B. It was doctors of AIIMS who made observations that the complainant was operated upon on wrong place i.e. instead of being operated for L-4 and L-5 she was operated upon L-2 & L-3. The above observation was made orally and it was visible apparently from the X-ray that she was operated upon L-2 and L-3. It is further the case of the complainant that due to this wrong operation the complainant being hardly of 30 years of age at the relevant time, has suffered so much that she cannot stand for long, cannot walk and for 20 days she remained on bed. Because of these problems she could not marry and had to leave her lucrative job.
18. There is hardly 2 or 3 distance between L-2 & L-3 and L-4 & L-5 and as per OP No. 2 , OP No.2 conducted the operation at L-2 & L-3 which was not at all a wrong place. Since the blood vessels do not appear in X-ray and CT scan it was done on clinical examination as ordinarily on the basis of clinical examination operating Doctor opens a place where the main problem lies so that it can manipulate the cathedral check up.
19. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill.
It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
20. 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.
21. 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.
22. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
23. 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)).
24. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment?
If so what was the level of error?
Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death.
Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
25. In the instant case the main operating Doctor was OP No.3 who was well qualified and experienced doctor. OP No.2 was only instrumental in referring the complainant for operation by OP No.3, who being a Neuro Surgeon was alone competent to perform the surgery. Mere presence of OP No.2 at the time of surgery was of no consequence so far allegation of medical negligence is concerned.
26. There are two circumstances that have emerged for showing the negligence on the part of OP No. 1 & 3 and they are therefore held liable jointly and severally. First the presence of red fats as shown in MRI report which raises inference of some foreign substance; even if it is a sort of metal dust. Second, OP No.3 should not have made a cut at L-2 and L-3 without clarifying through C.T. Scan as to the exact location of the problem as at L-4 and L-5. As a consequence complainant suffered immensely both mentally and physically besides incurring extra expenses of Rs. 2 lacs or so.
27. In our view lumpsum compensation of Rs. 2.50 lacs (Rupees Two Lacs and Fifty thousand only) shall meet the ends of justice. OP No. 1 and 3 having been held jointly and severally shall pay this amount within one month.
28. Complaint is disposed of in aforesaid terms.
29. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
30. Announced on 17th November, 2006.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member jj