State Consumer Disputes Redressal Commission
Smt. Savita Sharma vs Shri Narayana Hospital & Ors. on 30 March, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2015/06
Instituted on : 03.02.2015
Smt. Savita Sharma, aged about 62 years,
W/o Shri Ramprakash Sharma,
R/o : 'Preetiksha', Opp. Agricultural Colony,
Behind Sai Mandir, Near Railway Line,
P.O. Krishak Nagar, Village - Jora - Labhandi,
Thana - Telibandha,
Raipur (C.G.)
By & Through - Her Husband & next friend
Shri Ramprakash Sharma, aged about 63 years,
S/o Late Madan Lal Sharma,
R/o : 'Preetiksha', Opp. Agricultural Colony,
Behind Sai Mandir, Near Railway Line,
P.O. Krishak Nagar, Village - Jora - Labhandi,
Thana - Telibandha, Raipur (C.G.) 492012 ... Complainant.
Vs.
1. Shree Narayana Hospital,
(A unit of Healtech Chhattisgarh Pvt. Ltd.)
Through - Chairman, Dr. Sunil Khemka,
Near Ganj Mandi, Behind Sector -5, Devendra Nagar, Pandri,
Raipur (C.G.) - 492012
2. Shree Narayana Hospital,
(A unit of Healtech Chhattisgarh Pvt. Ltd.)
Through - Managing Director, Dr. Megha Khemka,
Near Ganj Mandi, Behind Sector -5, Devendra Nagar, Pandri,
Raipur (C.G.) - 492001
3. Shree Narayana Hospital,
(A unit of Healtech Chhattisgarh Pvt. Ltd.)
Through - Director, Dr. Sanjana Khemka,
Near Ganj Mandi, Behind Sector -5, Devendra Nagar, Pandri,
Raipur (C.G.) - 492001
4. Dr. Shree Prakash Singh MD (Medicine),
House No.101, Avanti Vihar Road,
Near HDFC ATM, Kavita Nagar,
Raipur (C.G.) and also at
Dr. Shree Prakash Singh MD (Medicine)
Shree Narayana Hospital,
// 2 //
(A unit of Healtech Chhattisgarh Pvt. Ltd.)
Near Ganj Mandi, Behind Sector -5, Devendra Nagar, Pandri,
Raipur (C.G.) - 492001
5. Dr. Varsha Jhawar (ICU Intesivest),
Flat No.204, Rishabh Residency,
Near Medishine Hospital, New Rajendra Nagar,
Raipur (C.G.) and also at
Dr. Varsha Jhawar (ICU Intensivest),
Shree Narayana Hospital,
(A unit of Healtech Chhattisgarh Pvt. Ltd.)
Near Ganj Mandi, Behind Sector -5, Devendra Nagar, Pandri,
Raipur (C.G.) - 492001
6. United India Insurance Company Limited,
Through : Branch Manager/Competent Authority,
Office No.7, GF, 150 BBC Complex,
Kilokri Ring Road, Opp. Maharani Bagh,
New Delhi - 110 014 ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Ganesh Ahuja & Shri Harshad Vyas, Advocates for the
complainant.
Shri R.K. Bhawnani, Advocate for O.P. No.1 to O.P. No.5.
Shri P.K. Paul, Advocate for the O.P. No.6.
ORDER
Dated : 30/03/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
// 3 //
(a) To pass an award for Rs.93,96,800/- (Rs. Ninety Three Lacks Ninety Six Thousand & Eight Hundred only) (as prayed in Para 1.34) in favour of the complainant and against the opposite parties jointly & severally in the interest of justice.
(b) To award Rs.20,000/- (Rs. Twenty Thousand only) towards cost of litigation.
(c) To award Rs.50,000/- (Rs. Fifty Thousand only) towards counsel's fee.
(d) To grant any other relief as deem fit and just proper to this Hon'ble C.G. State Consumer Commission in the facts and circumstances of the case.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is presently unable to walk, move, write or put her thumb impression due to her sickness, therefore, this complaint is filed through her husband and next friend Shri Ramprakash Sharma. The. O.P. No.1 is a company duly incorporated under the provisions of Indian Companies Act, 1956 having its registered office as shown in the cause title of the compliant. Dr. Sunil Khemka is the Chairman of the O.P. No.1, O.P. No.2 Dr. Megha Khemka is the Managing Director and O.P. No.3 Dr. Sanjana Khemka is the Director of O.P. No.1. All these parties are responsible for day-to-day affairs of O.P. No.1 and all activities of O.P. No.1 such as treatment of outdoor and indoor patients // 4 // apart from all day-to-day activities of O.P. No.1 are done in personal supervision of these three persons. O.P. No.4 Dr. Shree Prakash Singh is attached to O.P. No.1 as consultant / physician / doctor. He prescribed the medicines for the indoor patient and medicines are administered under the inspection and guidance of O.P. No.4. O.P. No.5 is qualified intensivist ICU and she was looking after complainant during the period she was indoor patient in the hospital and medicines were administered to complainant under her supervision. The complainant was admitted in the hospital on 10/01/2013 (Tenth day of January Two Thousand Thirteen) for treatment. The O.P. No.4 & 5 prescribed various tests for determining the nature of disease from which the complainant suffered. After various test she was informed that her present condition was due to deficiency of Sodium in her body. Complainant and her relatives were informed that normal range of sodium in the human body shall be 136-155 mmol/L but complainant has only 97 mmol / L sodium in the body as such O.P. No.4 prescribed NS 3% to be given to the complainant. This saline was administered to her under the supervision of O.P. No.5, who was over all incharge of ICU where complainant was admitted. Various medicines were prescribed for administration to complainant including 1100ml NS 3% (Sodium) within 36 hours in order to increase sodium level in the body of the complainant. The medicines purchased from the medical store were // 5 // prescribed by O.P. No.4 & 5. Dr. Sunil Khemka, Dr. Megha Khemka and Dr. Sanjana Khemka had visited the ICU unit twice in a day and inspected bed tickets and the treatment given to the complainant. Though in the notice to the OPs, it is stated that she was administered NS 3% 800 ml but on scrutiny of the medical bills it transpired that complainant / patient was administered 1100ml NS 3% within said period. There was no improvement in the health of complainant on the contrary her health condition deteriorated day to day. According to the detail chart given in para 1.7 sodium level increased after administration of NS 3% which is on higher side. After administration of excess NS 3% the complainant lost her balance and often fell down and became unconscious. The medical prescriptions and medicines administered by the OPs clearly show that on realizing their negligence in administration of NS 3% on their part. The OPs tried to reduce the side effects but failed. The complainant lost her speech and was unable to move her hands and feet like normal persons. Since there was no improvement in the health of the complainant and her position deteriorated day by day. Therefore, the complainant was got discharged and was taken to Medanta Hospital, Gurgaon, Haryana on 21/01/2013. At the stage of admission at the Medanta Hospital, considered the case for management of "CENTRAL PONINE MYELINOLYSIS WITH EXTRAPONTINE MYELINOLYSIS UTI" . At the time of admission at Medanta Hosptial, Gurgaon, Haryana error // 6 // has been crept in noting the sodium contents 92 & 132 in the place of 97 & 132 in the place of 97 & 132.5. Inspite of best treatment at Medanta Hospital, Gurgaon, Haryana the condition of the complainant could not improve and remain same as existed at the time of admission except she came out from the stage of coma after the treatment at Medanta Hospital, Gurgaon, Haryana. The complainant caused a legal notice to the O.P. No.1, 2 & 3 on 26.11.2014 which was received by O.P. No.1, 2 & 3 prior to 02.12.2014. The complainant caused on more legal notice on 22.12.2014 to O.P. No.4 & 5. The O.P. No.4 & 5 received the notice but did not care to reply to the said notice. However, O.P. No.5 refused to take notice which is sent at her residential address, but notices sent at the address of hospital of O.P. No.1, 2 & 3 are delivered. The O.P. No.4 & 5 did not care to reply to the said notice however notice No.1 & 2 replied through their advocate and denied any negligence in treatment at the hospital. At the time of discharge the O.P. No.1 on 20.01.2013 the complainant was not provided with her daily reports / bed tickets and inflow chart by the OPs. At the time of discharge she was provided only with MRI & CT scan films and all reports of the test carried out by the OPs at hospital with discharge summary. The reports from Radiologist relating to MRI & CT scan were not provided to the complainant through she was charged for the same. After return from the 3rd time treatment to Raipur the complainant's son Mr. Kapil Sharma contacted the O.P. No.1 for bed // 7 // tickets, nurses chart, daily reports and IP follow-up sheets. The O.P. No.1 did not provide the aforesaid reports as such the complainant had caused a notice through their counsel for to O.P. No.1. After receipt of the said notice the OPs provided nurses charge, test reports, IP follow-up sheets and ICU sheets. The bare look on the documents provided by the OPs will show that they are not original but forged, fabricated and prepared after thought in order to show that there was no medical on the part of the OPs. The O.P. No.1 provided forged and interpolated documents to the complainant. This act of OPs clearly reflects their negligence in treatment of complainant. The O.P. No.1 has not provided the following documents to the complainant :-
(i) The medicine prescriptions are not provided by the OPs.
(ii) The nurses chart shows that all medicines given as per doctor's advice but the details like quantity, doses, timings, prescriptions etc. are not disclosed by the OPs.
(iii) There are number of cancellation and ok signs in the ICU sheets and the other papers.
(iv) The NS 3% purchased from the pharmacy run and owned by the hospital of O.P. No.1, 2 & 3 shows purchase of 1100ml (11 bottles) but doctor's prescriptions as given by the OPs does not reflects the doses of quantity and duration.
In reply to notice of complainant the O.P. No.1 & 2 have admitted that they have administered 280 ml of sodium in 36 hours // 8 // even this dose is also fatal. The administration of 280ml of NS 3% would result in increase of approx 11% sodium in the body. This is reflected by the laboratory report which shows at the time of admission sodium was 97 mmol/L and it raised 108 mmol/L within span of 7 hours & 23 minutes. The administration of total sodium in the body within 36 hours rose from 97 to 132 mmol/L within 36 hours and even there after such medicine and salty diet was administered to the complainant whereby sodium level increased from 132.6 mmol/L on 11.01.2013 at 7.26 PM to 144.8 mmol/L on 18.1.2013 at 8.49 AM. Ultimately at the time of discharge the sodium level of the complainant was 138.5 mmol/L. The OPs did nothing to control clinically increase of sodium level in the body of the complainant. From mid-night of 12/1/2013 her health was deteriorated and ultimately the complainant became unconscious and in the stage of locked in the syndrome i.e. in the stage of coma. The complainant's health had deteriorated and crams & stiffness in the body increased day-by-day due to sheer negligence in administration of sodium in body of the complainant by OPs as per prescribed medical norms. 2-3 specialists were called by the OPs but there was no improvement in her condition. O.P. No.4 & 5 falsely assured that the condition of complainant is improving. Though in fact it was deteriorated. On complaint being made to the Chairman, i.e. O.P. No.1 he opined that "Dr. S.P. Singh and Dr. Varsha Jhawar are experts in their field and // 9 // they should have brief in hospital and doctors". The complainant's relatives decided to shift her to another hospital for better treatment and she was taken from hospital of OPs to Medanta Hospital, Gurgaon, Haryana. The complainant has remained as indoor patient in 3 hospitals after Shree Narayana Hospital. The details whereof are as under :-
S.No. Name of the hospital Period
1. Medanta Hospital, 21.01.2013 to 04.03.2013
Haryana, Gudgaon
2. Aditya Birla Hospital, 05.03.2013 to 07.03.2013 Pune 10.03.2013 to 23.03.2013 25.04.2013 to 22.05.2013
3. MMI Hospital, Raipur 01.11.2013 to 06.11.2013 After discharge from MMI, Raipur on 06.11.2013 the complainant is leading immobilized like a dead body. The complainant cannot do any jobs without assistance even she is required assistance for urination or to say that for brushing, changing clothes, drinking water, daily bread (eating) assistance is required for her. In substance the complainant is like a child of 6 to 8 months who required assistance over every time and for said purpose 24 hrs nurses are employed for the complainant. For present condition of health of complainant all the OPs are jointly and severally liable since they administered excess sodium then prescribed limits. The OPs have been totally negligent in treating the complainant as per medical norms. The complainant's whole family suffer apart from complainant herself who suffer from various type of // 10 // illness and irreparable loss to her life and further had to remain in or out of hospital due to sheer negligence in treating the complainant by the OPs. The pain and agony suffered cannot be measured in terms of money, amount claimed is just a token amount whereas infact pain, agony and harassment cannot be measured in terms of money the kind of complainant and her relatives have been suffered. The O.P. No.4 administered NS 3% on higher side and due to over dose of NS 3% to the complainant, she suffered from illness and is completely bedridden and unable to walk, move, write or put her thumb impression. From the treatment given by doctors of Medanta Hospital, Gudgaon, she has been saved from the stage of comma. The O.P. No.4 & O.P. No.5 committed medical negligence. The O.P. No.1 is Chairman , O.P. No.2 is Managing Director and O.P. No.3 is Director of Shree Narayana Hospital, therefore, they are also responsible for the act committed by the O.P. No.4 & O.P. No.5. The complainant is entitled to get compensation from the OPs. Hence the complainant filed the instant complain and prayed for granting reliefs as mentioned in prayer clause of the complaint.
3. The O.P.No.1 to 5 have filed their joint written statement and averred that the complaint filed by the complainant is not maintainable as per the allegation of the complainant the matter will require detail evidence which is not possible in summary procedure. Therefore, the complaint of the complainant is not maintainable and it is liable to be // 11 // dismissed. The complaint filed by the complainant is liable to be dismissed as the complainant has not made the party to Medanta Hospital, Gudgaon, Aditya Birla Hospital, Pune and MMI Hospital, Raipur where she taken treatment for long time. On the basis of treatment given in the said hospitals, they are necessary partis. The complaint of the complainant is liable to be dismissed for the non- joinder of the parties. The complainant in her complainant has stated that the documents provided by the OPs are forged and fabricated, therefore, this Commission has no jurisdiction to entertain the complaint as it will require detail investigation and evidence. Therefore, the complaint of the complainant is liable to be dismissed on this ground alone. Dr. Sunil Khemka, Dr. Sanjana Khemka and Dr. Megha Khemka have not treated the patient and they are unnecessarily made party by name. Therefore, the complaint of the complainant is liable to be dismissed on the point of mis-joinder of the parties. The complainant has filed time barred complaint and the complaint of the complainant is not maintainable on this ground also. The OPs have not given reckless treatment to the complainant due to which she is unable to walk, move, write or put her thumb impression due to her sickness. The disability certified filed by the complainant has to be proved by cogent evidence. Dr. Sunil Khemka is an orthopaedic surgeon and DR. Megha Khemka is an Gynaecologist and Dr. Sanjana Khemka is also Gynaecologist. The O.P. No.1 to 3 are the // 12 // directors of the hospital. In the hospitals of the OPs, there are many departments in which the treatment is being given and for various departments, the separate units are made and separate specialist doctors are there for the treatment. Dr. Sunil Khemka, Dr. Megha Khemka and Dr. Sanjana Khemka have not treated the patient and they have been unnecessarily made party by name. The complainant was admitted as Indoor patient in serious condition. The complainant was admitted in the hospital on 10.01.2013 at 3.17 P.M. with complaint of Dullness and Drowsiness since morning and difficulty in passing urine and burning Micturition for two days. The patient was the known case of Hypothyroidism and systemic hypertension with Psychiatric illness on treatment. She was not able to talk and walk hence she was investigated and her investigation showed Serum Sodium NA of 97.9 (very low) and which is life threatening with past history Hypothyroidism and systemic hypertension with Psychiatric illness. The relatives of the complainant were explained about the condition of the patient and it was informed that it is life threatening and the need of correction of sodium according to guidelines with 3% NS. Since there was high risk therefore high risk consent was taken from the relative of the complainant. The treatment was started according to the guidelines with 3% normal saline and with standard guidelines was started. 1100 ml. NS (Normal Saline) 3% was not given 36 hours. Only 280 ml of 3% saline was given in 36 hours. It is clearly // 13 // mentioned in the bed head ticket and in ICU chart of hospital papers. Regarding the visit of Dr. Sunil Khemka , Dr. Megha Khema and Dr. Sanjana Khemka, it is stated that Dr. Megha Khemka and Dr. Sanjana Khemka, are the Gynaecologist and they have not given any treatment to the patient. Dr. Sunil Khemka is visiting the patients of Orthopedic's and in routine he also meets the patient who are admitted in the hospital. But Dr. Sunil Khemka has not treated the patient. The treatment given to the patient are mentioned in the bed head ticket of the patient. 3% saline 280 ml. was given to the patient over 36 hours. The patient was not administered 1100 ml. 3% Normal Saline within said period. The allegation of complainant regarding 1100 ml. 3% Normal Saline within said period is not correct. On scrutiny of medical bills, it was found that 1100 ml. of 3% normal saline as mentioned by the complainant was not purchased and is again stated the patient was given only 280 ml. of 3% normal saline as mentioned in bed head tickets and ICU Charts. The condition of the patient was improving and she was obeying verbal commands on 13.01.2013 which has been clearly mentioned in the bed head ticket and was explained to relatives about the condition of the patient. The patient came to the hospital on 10.01.2013 at about 3:17 PM with said complaints and her serum sodium was 97.9 and it was confirmed by the investigation and then the doctors started 3% NS (Normal Saline) at 6:00 PM. According to guidelines. Sodium correction required for // 14 // as per guidelines are and which are mentioned by the complainant also are :-
Total body sodium deficient was :
[Body weight ] x 0.5 x [130 - current sodium] 70 x 0.5 x 130 - 97.9 = 1123.5 Meq./lit.
[Ref. - Paul marino pg. No.608) So guidelines say to start correction as - 0.5 Meq./Hr./lit. so requirement of our patient is as follows :-
(1) Body wt. x 0.5 x [0.5 meq.hr/lit.] (2) 70 x 0.5 x 12 = 420 Meq. This requirement is for 24 hours.
1000 ml (1.0lit) of 3% normal saline = 513 Meq. Of sodium. Requirement of 3% sodium in liter or ml. = 420/513 x 1000 = 818.7 ml. of 3% normal saline - for 24 hours. Requirement [rate of infusion of 3% normal saline] For 24 hours = 818.7 / 24 = 34.11 ml. / Hour.
For correction of sodium we started @ 20 ml. / House because of her other co-morbid conditions, we also added oral salt supplementation and 0.9% normal saline.
According to guideline and recommendations her sodium level were monitored every 6 hourly. Her lab report for 12.30 A.M. hours [midnight] was sent. Report confirmation of 108.3 level received at 1.30 AM on 11.01.2013 and hence her dose reduced to half dose i.e. [10 ml. hr]. According to change of treatment all hospital records are provided including bed head ticket, nursing charts and doctors notes. Excess 3% Normal Saline was not given to the complainant. The complainant has not lost her balance and often fell down and become unconscious. There was no history of fall or loss of balance. Patient was brought bed bound and was bed bound till discharge. The prescription and medicines administered by the OPs did not clearly // 15 // shows that on realizing their negligence administration of Normal Saline 3% on their part. The complainant has not lost her speech and was not unable to move her hands and feet like normal person. The allegations of the complainant are not correct and are after thought. G Her medical report of 124.1 Meq. / lit was received on 11.01.2015 and her 3% normal saline was stopped and hence we thought in view of rapid correction we started her on half normal saline (0.45%), plain water and her oral sale supplementation was stopped. This step was taken to prevent rapid correction of sodium. The position of the complainant was not deteriorated day by day. The patient was never unconscious she was though drowsy but arousable on call. No verbal commands (not taking) and was responding to painful stiumuli. Her grading of central nerves system was done according to GCS and according to that her GCS-E3 V1 M-4. GCS charge has been provided to the complainant. Regarding the consideration of Medanta Hospital at the time of admission is not known to the OPs. The history is being given by the relatives of the complainant and on that basis the history has been written by the Hospital. Regarding the noting in Medanta Hospital, it is not known to the OPs. The OPs have given treatment as per norms. The case summary has been issued by department of Medanta Institute who has not been made party in this case, therefore, no observation can be given by the OPs regarding the document. The OPs were not aware regarding the treatment given at Medanta // 16 // Hospital. The O.P. No.5 has not refused to take notice. O.P. No.5 has never received the notice and there was no question of refusal any notice. So far as notice given to O.P. No.4 is concerned, the reply was already given on behalf of O.P. No.1, 2 & 3,. The complainant has tried to fill up her lacuna. The complainant has made the false version. The entire documents which were demanded by the complainant were given and even after the notice of the advocate all the documents were provided which were demanded by the complainant. All the documents were provided to the complainant's relatives and again it were provided to the complainant and her counsel. The allegation of forged document is not correct. The intention of the complainant seems to blaming the OPs unnecessarily. The complainant is confused regarding the purchase of 1100 ml (11 bottles). It is clearly mentioned in the prescription and bed head tickets regarding the dose given by the OPs. The complainant is trying to confuse by making false statement. The dost given to the complainant was as per the norms and no excess dose was given. 280 ml . of 3% sodium in 36 hours is also not fatal as books does not mention any dose as fatal. The OPs did their best to control clinically increase the sodium level in the body of the complainant. From the perusal of the bed head ticket, it is clear that full treatment was given to the complainant and her condition was satisfactory. Her medical report of 124.1 was received on 10.01.2013 and her normal saline was // 17 // stopped and hence we thought in view of rapid correction we started her on half normal saline, plain water and her oral sale supplementation was topped. This step was taken to prevent rapid correction of sodium. Her health had not deteriorated and cramps and stiffness in the body have not increased day by day due to sheet negligence in administration of sodium in body of complainant by OPs as per prescribed medical norms. The entire allegation of the complainant is frivolous. The O.P. No.4 & 5 have informed the correct position of the complainant. It was the decision of the relatives of the complainant to shift to other hospital against the medical advise. The OPs have full cooperated and have provided all the documents and discharge tickets and discharge summary to the relative of the complainant. The OPs are not aware about the treatment taken by the complainant in various hospitals. At the time of discharge from the hospital of the OPs, the condition of the complainant was not worse. The present position of the complainant is not known to the OPs. After discharges from the hospital of the OPs, the complainant has taken treatment in various hospital, which she has mentioned in the complaint, therefore, the allegation on the OPs, is not correct. The OPs have not been totally negligent in administering excess sodium than prescribed limit. The OPs have not given negligent treatment. The allegations of the complainant are baseless and are against the documents. The complainant's family is // 18 // not suffering due to the negligence of the OPs. The OPs have given the treatment as per medical norms and no negligence was done by the OPs and no excess sodium was given to the complainant. The complaint filed by the complainant is time barred and is not maintainable before this Commission and is liable to be dismissed. The complainant is not entitled for the amount of Rs.93,96,800/- and Rs.20,000/- as cost of litigation and Rs.50,000/- as counsel's fees. The OPs have taken the Doctors Indemnity Policy from United India Insurance Company Limited. The said Insurance Company is necessary party and therefore without impleading the insurance company as a party the complaint of the complainant is not maintainable and it is liable to be dismissed.
4. The O.P. No.6 has filed its written statement and averred that the complainant has filed the instant complaint against Shri Narayana Hospital by impleading O.P. No.1, 2, 3 & 4 as party and later on added the O.P. No.6 in the complaint, but it has not been proved that the O.P. No.1, 2, 3 & 4 have obtained insurance policy from the O.P. No.6. If any allegation is proved against the O.P. No.1, 2, 3 & 5, then the O.P. No.6 is not liable to pay the compensation. As per provisions of Professional Indemnity Dr. (Other) Policy, if negligence is proved by any Court and Shree Narayana Hospital is ordered to pay the compensation, then Shree Narayana Hospital, is only liable to pay compensation. In the instant case the complaint has been filed saying // 19 // that entire treatment has been done in Shree Narayana Hospital, therefore, Shree Narayana Hospital is jointly and severally liable to pay compensation. The complaint is pre-mature against the O.P. No.6, therefore, the complaint is not maintainable against the O.P. No.6 and is liable to be dismissed. Smt. Savita Sharma, complainant has not paid any premium to the O.P. No.6, therefore, she is not covered under the insurance policy. It means there is no privity of contract between the complainant and O.P. No.6. Therefore, the complainant is not consumer of the O.P. No.6, hence, the complaint filed by the complainant under Section 2(1)(d) of the Consumer Protection Act, 1986 against the O.P. No.6, is not maintainable and is liable to be dismissed. In the instant case the complainant has not mentioned in the complaint and has not proved that the O.P. No.6 has committed any deficiency in service, therefore, on this ground, the complaint is not maintainable against the O.P. No.6 and is liable to be dismissed against the O.P. No.6. The complainant has not submitted any claim against the O.P. No.6 and no dispute has arisen between the complainant and O.P. No.1 from which complaint receives base. In the complaint it is averred by the complainant that during her treatment in the hospital her condition was deteriorated, therefore, the burden to pay compensation is on the owner / Managing Director of Shree Narayana Hospital and not on any other doctor because he has // 20 // not treated the patient in his personal capacity. The complaint is liable to be dismissed against the O.P. No.6.
5. The complainant has filed documents. Annexure C-1 is Disability Certificate of the complainant, Annexure C-2 are copies of the bills of medicines, Annexure C-3 is summary of the complainant given by Medanta Hospital, Annexure C-4 is copy of legal notice sent to OPs along with postal receipts and proof of delivery, Annexure C-5 is copy of legal notice sent to O.P. No.4 & 5, Annexure C-6 are proofs of delivery of legal notice sent to O.P.No.4 & 5 and envelope bearing refusal mark by O.P. No.5, Annexure C-7 is copy of reply sent by the O.P. No.1,2 & 3, Annexure C-8 is copy of the rejoinder to reply sent by the OPs, Annexure C-9 is copies of the documents given at the time of discharge by OPs, Annexure C-10 is copy of the notice dated 08.10.2014, Annexure C-11 is copies of all the papers like IP following sheets, ICU sheets and Nurses chart provided by the OPs in consequence of notice dated 08.10.2014, Annexure C-12 are copies of all bills for expenses in hospitals, Annexure C-13 are copies of all bills and other expenses, Annexure C-14 are proof of expenses / receipt for nursing staff, Annexure C-15 are copy of the letter sent by the counsel of the OPs along with flow chart of the complainant / patient.
6. The O.P.No.1 to 5 have also filed documents. Document D-1 is Critically Ill Information, Document D-2 is Medical Literature, Document D-3 is Copy of Insurance Policy of Dr. Shriprakash Singh.
// 21 //
7. On the basis of averments of both the parties, the points for determination are :-
1. Whether Dr. Sunil Khemka (O.P.No.1), Dr. Megha Khemka (O.P.No.2) and Dr. Sanjana Khemkat(O.P.No.3) are necessary party in the complaint ?
2. Whether Medanta Hospital, Gudgaon, Aditya Birla Hospital, Pune and MMI Hospital, Raipur are necessary party, if yes, then its effect ?
3. Whether the instant complaint is barred by time ?
4. Whether the O.P. No.1 to 5 have committed medical negligence ?
5. Whether the complainant is entitled to get compensation from the OPs, if yes, then to what extent ?
Discussions and its conclusion:
8. Question No.1 & 2 are related to each other, therefore, they are being decided together.
9. Shri R.K. Bhawnani, learned counsel appearing for the O.P. Nos.1 to 5 has argued that Dr. Sunil Khemka (O.P. No.1), Dr. Megha Khemka and Dr. Sanjana Khemka are merely Chairman, Managing Director and Director of Shree Narayan Hospital and they have not treated the complainant, therefore, they are not necessary party and they have been wrongly arrayed as O.P. No.1, O.P. No.2 and O.P. No.3 in the instant complaint, whereas the complainant has taken // 22 // treatment from Medanta Hospital, Gudgaon, Aditya Birla Hospital, Pune and MMI Hospital, Raipur, therefore, these hospitals are necessary party and for want of the necessary party and mis-joinder of party, the complaint is liable to be dismissed.
10. On the contrary Shri Ganesh Ahuja, learned counsel appearing for the complainant has argued that Dr. Sunil Khemka (O.P. No.1), Dr. Megha Khemka (O.P. No.2) and Dr. Sanjana Khemka (O.P. No.3) are Chairman, Managing Director and Director of Shree Narayana Hospital and the complainant was admitted in the Hospital, where the O.P. No.4 and O.P. No.5 are working as Consultant Doctor, therefore, if any act has been committed by the above doctors, then the hospital is responsible for that and being the Chairman, Managing Director and Director of the Hospital, the O.P. No.1 to O.P. No.3 are responsible for the act of the O.P.No.4 & 5. So far as question of impleading Medanta Hospital, Gudgaon, Aditya Birla Hospital, Pune and MMI Hospital, Raipur (C.G.) as party is concerned, the complainant took treatment from these hospitals and health of the complainant was improved after taking treatment in the above hospitals, there they are not necessary party.
11. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to // 23 // completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. "
12. In the instant case, the complainant has specifically pleaded that Dr. Sunil Khemka (O.P. No.1) is Chairman, O.P. No.2 Dr. Megha Khema is Managing Director and Dr. Sanjana Khemka (O.P. No.3) is Director of Shree Narayana Hospital.
13. In Smt. Savita Garg Vs. The Director, National Heart Institute, IV (2004) CPJ 40 (SC), Hon'ble Supreme Court has observed that "hospital is responsible for acts of their permanent staff as well as staff whose services temporarily requisitioned for treatment of patient."
14. It is settled law that hospital is vicariously liable for the acts of its doctors, therefore, the directors and chairman of the hospital are liable for the acts of the doctors, who committed medical negligence. The complainant pleaded that the O.P. No.1 is a Company duly incorporated under the provisions of Indian Companies Act, 1956 having its registered office as shown in the cause title of the complaint. Dr. Sunil Khemka is the Chairman, O.P. No.2 Dr. Megha Khemka is Managing Director and O.P. No.3 Dr. Sanjana Khemka is Director of // 24 // Shree Narayana Hospital. So far as filing complaint against firm or company is concerned, it may be sued in the name of firm or company through its partner or director. The O.P. No.1 to O.P. No.3 are respectively Chairman, Managing Director and Director of Shree Narayana Hospital and O.P. No.4 Dr. Shree Prakash Singh and O.P. No.5 Dr. Varsha Jhawar are working in Shree Narayana Hospital, and the treatment has been given by the O.P. No.4 & O.P. No.5 to the complainant, therefore, if any mistake or negligence was committed by O.P. No.4 & 5 while treating the complainant, then the O.P. Nos.1 to 3 are also liable for the acts of the O.P. No.4 & O.P. No.5. Hence, the O.P. No.1 to O.P. No.3 are necessary party in the instance case.
15. So far as question of impleading Medanta Hospital, Gudgaon, Aditya Birla Hospital, Pune and MMI Hospital, Raipur as party is concerned, merely because the doctors of these doctors have treated the complainant, these hospitals are not necessary party and for in absence of these parties, effective order can be passed against O.P. Nos.1 to 5.
16. Question No.3.
16.1 Shri R.K. Bhawnani, learned counsel for the O.P. No.1 to O.P. No.5 have argued that the complaint is time barred, therefore, the same is liable to be dismissed. The above contention of learned counsel for the O.P. No.1 to O.P. No.5 is not acceptable. In the // 25 // complaint, the complainant pleaded that Smt. Savita Sharma was admitted in the O.P. No.1 Hospital on 10.01.2013 and she was discharged from the hospital on 20.01.2013. It appears that the complainant had taken treatment in the O.P. No.1 hospital till 20.01.2013. The instant complaint has been filed on 19.01.2015, Thus, the complaint has been filed within two years from the accrual of cause of action, therefore, the complaint is not barred by time.
17. Question No.4 & 5 :
Question No.4 & 5 are related to each other, therefore, they are being decided together.
18. Shri Ganesh Ahuja & Shri Harshad Vyas, learned counsels appearing for the complainant have argued that the complainant went to O.P. No.1 Hospital for treatment on 10.01.2013 and she was admitted in the O.P. No.1 Hospital. The O.P. No.4 started treatment of the complainant and medicines were administered to the complainant under supervision of O.P. No.5 and various tests of the complainant were conducted. After conducting various tests of the complainant, it was informed that present condition of the complainant is critical due to deficiency of Sodium in her body. The complainant and her relatives were informed that normal range of sodium in the human body shall be 136-155 mmol/L but complainant has only 97 mmol / L sodium in the body as such O.P. No.4 prescribed NS 3% to be given to the complainant. This saline was administered to her under the supervision of O.P. No.5, who was over all incharge of ICU where // 26 // complainant was admitted. Various medicines were prescribed for administration to complainant including 1100 ml NS 3% (Sodium) within 36 hours in order to increase sodium level in the body of the complainant. The complainant was administered 1100 ml NS 3% with said period and there was no improvement in her health, on the contrary her health was deteriorated day to day. The detailed chart of sodium level increased after administration of NS 3% is given in para 1.7 of the complaint. Looking to the above chart, it appears that overdose of NS 3% was given by the O.P. No.4 to the complainant . The acts of the O.P. No.4 & O.P. No.5 are duly proved by medicines bills and nurses chart. There are various manipulations in nurses chart. At the time of admission of the complainant on 10.01.2013 her sodium level was found 97.9 mmol/L against normal range of 136-155. After administration of excess NS 3% the complainant lost her balance and often fell down and became unconscious. The medicines administered by the O.P. No.4 & 5 to the complainant clearly show that they committed negligence in administering excess NS 3%. Since there was no improvement in the health of the complainant and her condition deteriorated day by day, therefore, the complainant was got discharge and was taken to Medanta Hospital, Gudgaon, Haryana on 21.01.2013. In Medanta Hospital, Gudgaon, Haryana it is found that the complainant is case of "Central Pontine Myelinolysis with Extrapontine Myelinolysis UTI" In Discharge Summary of Medanta // 27 // Hospital, it is mentioned that "Given the history of hyponatremia with rapid sodium correction and with these typical imaging findings, findings are most consistent with osmotic demyelination syndrome (central pontine and extrapontine myelinolysis). At the time of discharge of the complainant from O.P. No.1 to O.P. No.5, on 20.01.2013, her daily reports / bed tickets and inflow charge were not provided to her. The complainant filed an application for providing those documents, then those documents were provided by the O.P. No.1 to 5 to the complainant. There were many manipulations in the documents. It shows that the documents were fabricated. It also shows that O.P. No.1 to 5 have committed negligence. The complainant has no Psychiatric illness before the admission in the hospital of O.P. No.1 to O.P. No.5 nor the admission stage details disclosed that the complainant has suffered any Psychiatric problem. The O.P. No.1 to 5 have wrongly mentioned in the discharge summary of the complainant and false ground has been taken by the O.P. No.1 to O.P. No.5 in their defence. The O.P. No.1 to 5 have wrongly mentioned that the patient (complainant) was known case of Hypothyroidism and systematic Hypertension with Psychiatric illness. The patient Smt. Savita Sharma has never suffered from any Psychiatric disease nor was taking any treatment for the same.
19. Shri Ganesh Ahuja, has further argued that no valid consent has been obtained by the treating doctors from the complainant or her // 28 // relatives. If the condition of the complainant was critical, then it was essential for the O.P. No.1 to 5 to obtain consent of the complainant or her relatives before administering drug 3% saline to her, but no such type of consent was obtained by the O.P. Nos.1 to 5. Even condition of the patient was not informed to the complainant or her relatives. The consent is necessary, but the consent has not been obtained by the O.P. No.1 to O.P. No.5 from the complainant or her relatives and without obtaining consent treatment, was started, which comes in the category of medical negligence. He placed reliance on Samira Kohli Vs.Prabha Manchanda & Anr. 2008 AIR SCW 855 & BSR Cancer Hospital Pvt. Ltd. Vs. P. Raju Iyer, IV (2015) CPJ 691 (NC).
20. Shri Ganjesh Ahuja & Shri Harshad Vyas, have further argued that in the instant case according to the O.P. No.1 to O.P. No.5, the sodium level of complainant was low and 3% saline is a high risk factor but they had not taken any consent with regard to administration of such a risky drug which shows the deficiency on the part of the O.P. No.1 to O.P. No.5. According to the medical book and literature regarding NS 3%, bed head ticket and nurses chart shows against the prescribed dose. The O.P. No.1 to O.P. No.5 admitted that 280 ml. of 3% saline was administered to the complainant in 36 hours. If compared to Doctor's notes and ICU charts of 10.01.2013 and 11.01.2013, (Annexure C-11), it // 29 // shows that NS 3% was continue to be administered till 11.01.2013 i.e. 24 hours. According to the doctors note within 24 hours NS 3% were stopped whereas in the reply filed by the O.P. No.1 to O.P. No.5 they said that NS 3% was continued for 36 hours. It shows that the overdose of NS 3% was given by the O.P. No.4 & 5 to the complainant. In the discharge summary provided by the O.P. No.1 to O.P. No.5 it has been shown that Dr. C.M. Singh (DM, Neurology) has seen the complainant, but the records filed and provided to the complainant by the O.P. No.1 to O.P. No.5 have not mentioned or reflects any notes or advice or even the name of Dr. C.M. Singh. It shows that the O.P. No.1 to 5 have tried to fill up the lacunas of their wrong treatment and save their act of negligence by interpolations in the treatment records of the complainant. The O.P. No.4 & O.P. No.5 have administered excess fluid to the complainant, which comes in the category of medical negligence. The O.P. No.4 & O.P. No.5 have not consulted to Endocrinologist inspite of recorded fact that they complainant is patient of Hypothyroidism since last four years, which comes within category of deficiency in service and medical negligence. The complainant suffered loss as mentioned in the prayer clause of the complainant, therefore, the complainant is entitled to et compensation from the OPs, as mentioned in the prayer clause of the complaint. He placed reliance on Venkati Vs. Dr. Prakash M. Bhandari 2015 (4) CPR 671 (NC), Shakuntala Balane (Dr.) Vs. Anita, IV (2015) CPJ 112 (NC), // 30 // Indu Sharma (Dr.) Vs. Indraprastha Apollo Hospital & Ors. III (2015) CPJ 248 (NC); Ravnit Kaur Bal (Dr.) & Anr. Vs. Varinderjeet Kaur & Anr. IV (2015) CPJ 383 (NC); Vimhan's Hospital & Another Vs. Anand Kumar Jha, III (2015) CPJ 316 (NC); Lal Memorial Hospital & Ors. Vs. T. Sivaraman & Another, IV (2015) CPJ 334 (NC); Dr. Krishna Kumar Vs. State of Tamil Nadu & Ors. III (2015) CPJ 15 (SC); Dr. J.J. Merchant and Another Vs. Shrinath Chaturvedi, (2002) 6 SCC 635; Dr. Dashavatar Gopalkrishna Bade Vs. State of Maharashtra 2010 CRI. L.J. 4056 (Bombay High Court); Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Other, (2009) 6 SCC 1; Arun Kumar Agrawal and Another Vs. National Insurance Company Limited and Others, (2010) 9 SCC 218.
21. Shri R.K. Bhawnani, learned counsel appearing for the O.P. Nos.1 to 5 has argued that Dr. Sunil Khemka (O.P. No.1) is an orthopaedic surgeon, Dr. Megha Khemka (O.P. No.2) and Dr. Sanjana Khemka (O.P. No.3) are gynaecologist. In the hospital of the OPs there are many departments in which treatment is being given and for various departments the separate units are made and separate specialist doctors are there for treatment. Dr. Sunil Khemka Dr. Megha Khemka and Dr. Sanjana Khemka have not treated the patient, therefore, they are not responsible for any act of other doctors. The complainant was admitted in the hospital on 10.01.2013 at 3.17 PM with complaint of dullness and drowsiness since morning and // 31 // difficulty in passing urine and burning Micturition for two days. The patient was the know case of Hypothyroidism and systemic hypertension with Psychiatric illness on treatment. In investigation it was found that Serum Sodium NA of 97.9% (very low) and which is life threatening with past history of Hypothyroidism and systemic hypertension with Psychiatric illness. The condition of the complainant was explained to the relatives of the complainant and thereafter treatment was started according to the guidelines and 3% normal saline was given to the complainant and treatment was done according to the guidelines. Only 280 ml. of 3% saline was given in 36 hours. It is clearly mentioned in the bed head ticket and in the ICU chart of hospital papers. 1100 ml. 3% Normal Saline was never given to the complainant. 1100 ml. of 3% normal saline was not purchased by the complainant. Even if 1100 ml. of 3% normal saline was purchased by the complainant, the patient was given only 280 ml. of 3% normal. The patient was never unconscious she was though drowsy but she was owing verbal commands and her condition was improving. Her grading of central nerves system was done according to GCS and according to that her GCS-E-3 V1 M4. GCS chart has been provided to the complainant. The OPs did not commit any medical negligence while treating the patient. Excess 3% Normal Saline was not given to the complainant. The complainant herself sought expert opinion from the Medical Board and the Medical Board sent their // 32 // report in which it is mentioned that diagnosis recorded by the O.P. No.4 is correct and no adverse comments has been made in the expert report against the O.P. No.4 & O.P. No.5. The complainant has not filed any affidavits of doctors of Medanta Hospital, Gudgaon, Aditya Birla Hospital, Pune and MMI Hospital, Raipur. From bare perusal of the case/discharge summary of Medanta Hospital and the report of Expert Committee, in which it is mentioned that diagnosis done by the O.P. No.4 & O.P. No.5 is correct, it is not established that the O.P. No.4 & O.P. No.5 have committed any negligence or that they administered excess quantity of 3% normal saline to the complainant. Even Expert Committee has given their report in which it is mentioned that, therefore, the complaint is liable to be dismissed. He placed reliance on K.K. Sharma (Dr.) Vs. Fortis Hospital & Ors. III (2016) CPJ 527 (NC), O.P. Shukla Vs. Dr. Kusum Dubey & Ors. III (2016) CPJ 295 (NC), Tushar Maternity and Surgical Nursing Home Vs. Dhanashri Savardekar & Anr. III (2016) CPJ 446 (NC); Arun Kumar Manglik Vs. Chirayu Health and Medicare Pvt. Ltd. & Anr. III (2016) CPJ 463 (NC); Dr. Shrikant V. MekewarVs. Vimal & Ors. 2016 (4) CPR 190 (NC).
22. Shri P.K. Paul, learned counsel appearing for the O.P. No.6 (Insurance Company) has supported the arguments advanced by learned counsel for the O.P. Nos.1 to 5.
// 33 //
23. We have heard learned counsels appearing for the parties and have also perused the documents filed by them in the complaint case.
24. The O.P. No.1 to O.P. No.5 have filed copy of Critically Ill Information which is marked as Annexure D-1 in which it is mentioned thus :-
"CRITIICLLY ILL INFORMATION Patient Name - Savita Sharma.
Age 59 y. Sex F I.P. No.121 Date of admission - 10/1/13 Consultant : Dr. S.P. Singh.
-------------------------------------------------------------------------------------
I hereby agree that I have been informed
- That my patient Savita Sharma is serious & critically ill.
- That there is a risk of life involved.
- That all efforts are being made of treat my patient.
Relation with patient. Signature of Relative."
25. Annexure C-9 is Discharge Summary Card issued by Shree Narayana Hospital, Raipur, in which is it mentioned thus :-
"Discharge Summary Card"
Please bring this card on your next visit Date 21-Jan-2013 Patient Name : Mrs. Savit Sharma M.R. No. : SNH-0000384 Admission No. I-000121 // 34 // Date of Admission : 10--Jan-2013 Time 3:17 pm Age / Sex. : 59/Female Date of Discharge : 20-Jan-2013 Time 10.50 pm Under care of : Dr. Shriprakash Singh (MD) Department :Medicine History :
Dull with drowsiness and difficulty in passing urine, burning micturation two days.
Past history -
HTN - 4 years.
Hypothyrobism Psychiatric Illness on anti psychotic drugs.
Diagnosis :
Hyponatremia with sepsis in A K/C/O Htn with Hypothyrodism with Psychiatric illness with suspected CPM/Extra Pontine Myelenosis.
Treatment during hospitalisation :
Conservatively treatment Dr. Shri Prakash Singh (MD, Medicine), Dr. C.M. Singh (DM, Neurology)"
26. Annexure C-3 is Case Summary issued by Medanta Institute of Neuro Sciences, in which it is mentioned thus :-
Case Summary Patient Mrs. Savita Sharma Age / Sex 58 yrs. /Female name UHID MM00329945 DOA 21.01.2013 Encounter 11045396 DO Case ID Summary 02/03/13 Primary Dr. Sumit Singh Associate Dr. Dilip Singh Physician Consultant Reason for admission : For management :
Primary Diagnosis :
// 35 // Central Pontine myelinolysis with Extrapontine Myelinolysis UTI History :
Presenting complaints & history of present illness : Mrs. Savita Sharma, 58 years old lady brought from Shree Narayana Hospital, Raipur with diagnosis of sepsis, hypotremia, suspected EPM. had history of decreased oral intake for last 20-25 days associated with difficulty in waling for last 15 days. She was admitted in Hospital and found to be hypontremic (92), rapid Na correction in 3 days (132).
MRI Brain done on 18.01.2013 - Suggestive of EPM Pt. remains in drowsy and quadriparetic state since the-transferred to Medanta for further care.
Course in hospital "
.......
Gastro consultation was advised for PEG tube insertion. Tracheostomy tube was planned.
Urine culture showed candida species. Endocrinology team was consulted and managed accordingly. She developed low grade fever for which managed accordingly.
Under fluoroscopic guidance gastrostomy was done on 06.02.2013.
Physician reference was done in view of low grade fever and advice followed accordingly.
USG abdomen was suggestive of fatty infiltration of liver. In view of fever urine culture was sent which showed klebsiella for which appropriate antibiotics were started from 22.02.2013.
Condition at present : Conscious, Obeying, afebrile, Vitals stable On going medications Econorm sachet, Tab Syndopa plus, Tab Amlodpine, inj. Clexane, Tab Pramirol SR, Inj. Magnex forte, Tab Thyroxine, Inj Pan, Inj Colistin."
27. The Discharge Summary issued by Aditya Brila Memorial Hospital, is annexed at the record at Page No.229 in which it is mentioned thus :-
// 36 // "FINAL DIAGNOSIS :
1. CENTRAL PONTINE + EXTRAPONTINE MYELINOLYSIS WITH SPASTIC QUADRIPARESIS.
2. PSEUDO BULBAR PALSY.
3. HYPERTENSION.
CLINICAL HISTORY : A 58 year - old female patient brought by relatives from Medanta Hospital, Delhi, as a case of central pontine + extrapontine myelinolysis with sequalie... 2013 for assessment.
History of fever on & off."
28. In The ICU Book, at page no. 608 it is mentioned thus :-
"Sodium Replacement When corrective therapy requires the infusion of isotonic saline or hypertonic saline, the replacement therapy can be guided by the calculated sodium deficit. This is determined as follows (using a plasma sodium of 130 mEq/L as the desired end-point of replacement therapy).
Sodium deficit (mEq) = Normal TBW x (130 - Current PNa)(32.8) The normal TBW (in litres) is 60% of the lean body weight (in kg) in men, and 50% of the lean body weight in women. Thus, for a 60 kg woman with a plasma sodium of 120 mEq/L, the sodium deficit will be 0.5 x 60 (130-120) = 300 mEq.
Because 3% sodium chloride contains 513 mEq of sodium per liter, the volume of hypertonic saline needed to correct a sodium deficit of 300/513 = 585 mL. Using a maxium rate of rise of 0.5 mEq/L per hour for the plasma sodium (to limit the // 37 // risk of a demyelinating encephalopathy), the sodium concentration deficit of 10 mEq/L in the previous example should be corrected over at least 30 hours. Thus the maxium rate of hypertonic fluid administration will be 585 / 20 = 29 mL/hour. If isotonic saline is used for sodium replacement, the replacement volume will be 3.3 times the replacement volume of the hypertonic 3% saline solution."
In Harrison's Principles of Internal Medicines 16th Edition, at page No.254 to 259, procedure for treatment and cause of Hyponatremia, are given.
29. Looking to the document Annexure D-1, which is Critically Ill Information, it is apparent that the relatives of the complainant have been explained regarding the health condition of the complainant and signature of the relatives of the complainant were affixed in document Annexure D-1, therefore, document Annexure D-1 comes within purview of consent.
30. In document Annexure C-9 which is Discharge Summary Card of Shree Narayana Hospital, it has been specifically mentioned in the column of History " the condition of the complainant was dull with drowsiness and difficulty in passing urnine, burning micturation two days. In the Discharge Summary, the history was written by the doctors at the time of admission and the history was given by the patient or her relatives. On the basis of information given by the relatives of the complainant, the same was mentioned in the Discharge // 38 // Summary. It appears that the complainant and her relatives themselves have stated the doctors regarding condition of the complainant at the time of admission, therefore, in the discharge summary, the disease of the complainant is mentioned by the doctors.
31. In Case Summary of Medanta Institute of Neuro Sciences (Annexure C-3), it is mentioned that "Mrs. Savita Sharma, 5 years old lady brought from Shree Narayana Hospital, Raipur with diagnosis of sepsis, hypotremia, suspected EPM had history of decreased oral intake for last 20-25 days associated with difficulty in walking for last 15 days. She was admitted in Hospital and found to be hypontremic (92), rapid Na correction in 3 days (132).
32. In Discharge Summary of Aditya Birla Memorial Hospital, Pune placed at record at page 229, under the head Final Diagnosis & Clinical History, it is mentioned thus :-
Final Diagnosis :
1. Central Pontine + Extrapontine Myelinolysis with Spastic Quadriparesis.
2. Pseudo Bulbar Palsy.
3. Hypertension.
Clinical History : A 58 years old female patient brought by relatives from Medanta Hospital, Delhi as a case of central pontine + extrapontine myelinolysis with sequalie .... 2013 for assessment.
// 39 //
33. The O.P. No.1 to O.P. No.5 in para 37 of their written statement have specifically pleaded that for the correction of sodium started @ 20 ml / Hour because of the complainant's other co-morbid conditions and also added oral salt supplementation and 0.9% normal saline was given. According to guideline and recommendations the complainant's sodium level were monitored every 6 hourly. Her lab report for 12.30 A.M., hours [midnight] was sent. Report confirmation of 108.3 level received at 1.30 AM on 11-01-2013 and hence her dose reduce to half dose i.e. [10 ml/hr]. According to change of treatment all hospital records are provided included bed head ticket, nursing charts and doctors notes.
34. Expert opinion from Dr. Bhimrao Ambedkar Memorial Hospital, Raipur was obtained. The Committee sent its report. The Committee has been constituted by HOD, Dept. of Medicine, Pt. J.N.M. Medical College, Raipur (C.G.). Dr. D.P. Lakra, MD, is Chairperson, Dr. Smit Shrivastava, M.D., DM, Dr. Yogendra Malhotra, M.D. and Dr. S. Gupta, Director, Prof. & Head are members of the Committee. In the expert report it is mentioned thus :-
"The Committee is giving its observations on Consumer Complaint No.06 of 2015, after going through details of provided clinical medical documents / notes / medical reports only.
1. The Statement does not required medical expert opinion.
2. The night duty nurse notes dated 10/01/2013 and 11/01/2013 shows total 1800 ml normal saline (0.9%) and total 360 ml of 3% saline was infused in first 24 hour of admission of patient.
// 40 //
3. Rate of correction of sodium cannot be determined in this statement.
4. As per the reference mentioned the rate of serum sodium correction exceeds the recommended rate of serum sodium correction in patient of Hyponatremia.
5. The Statement does not required medical expert opinion.
6. The Statement does not required medical expert opinion.
7. Tablet Resodium (Tolvaptan) can use for correction of serum sodium once the patient is stable and able to take oral medication. In emergency situation saline (3% or 0.9%) can be given withy monitoring the rate of correction of serum sodium.
8. Laboratory test sent on 10/01/2013 & 11/01/2013 as per duty nurse notes is serum electrolytes, Thyroid profile, Random blood sugar, Urine, Details of ABG not provided in available documents.
9. The Statement does not required medical expert opinion.
10. As per guidelines (mentioned is references) do not lay any restriction on volume of saline infused, the restriction is only at the rate of serum sodium correction.
11& 12. The diagnosis mentioned "Hyponatremia with sepsis in a k/c/o HTN with hypothyroidism with psychiatric illness with suspected CPM / Extra pontine myelenosis is appears to be correct as per provided document.
13to 16 The Statement does not required medical expert opinion."
35. In Expert Report, in para 2, it is specifically mentioned that "the night duty nurse notes dated 10/01/2013 and 11/01/2013 shows total 1800 ml normal saline (0.9%) and total 360 ml of 3% saline was infused in first 24 hour of admission of patient., but in para 11 & 12 it is // 41 // mentioned that "the diagnosis mentioned "Hyponatremia with sepsis in a k/c/o HTN with hypothyroidism with psychiatric illness with suspected CPM/Extra pontine myelenosis is appears to be correct as per provided document.
36. Looking to the Expert Report, it appears that the O.P. No.4 & O.P. No.5 have rightly diagnosed and proper treatment was given by them to the complainant. So far as corrections in Nurses Chart is concerned, the nurses chart was prepared by the duty nurses and not by the treating doctors. On the instructions of the doctors, the correction was made and mere corrections made in the nurses chart, it cannot be held that the O.P. No.4 & O.P. No.5 have committed any medical negligence.
37. In Dr. J.J. Merchant and Another Vs. Shrinath Chaturvedi (Supra), Hon'ble Supreme Court has observed thus :-
"7. ....... the main objects of the Act is to provide speedy and simple redressal to consumer disputes and for that a quasi - judicial machinery is sought to be set up at the district, State and Central level. These quasi bodies are required to observe the principle of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance with the orders given by the quasi-judicial bodies have also been provided. The object and purpose of enacting the Act is to render simple, inexpensive and speedy remedy to the consumers with complaint against defective goods and deficient services and the benevolent piece of legislation // 42 // intended to protect a large body of consumers from exploitation would be defeated. Prior to the Act, consumers were required to approach the civil court for securing justice for the wrong done to them and it is a known fact that decision in a suit takes years. Under the Act, consumers are provided with an alternative, efficacious and speedy remedy. As such, the Consumer Forum is an alternative forum established under the Act to discharge the functions of a civil court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach civil court."
38 In P.B. Desai (Dr.) vs. State of Maharashtra & Anr. IV (2013) CPJ 63 (SC), Hon'ble Supreme Court has held that:
"39. It is not necessary for us to divulge this theoretical approach to the doctor-patient relationship, as that may be based on model foundation. Fact remains that when a physician agrees to attend a patient, there is an unwritten contract between the two. The patient entrusts himself to the doctor and that doctor agrees to do his best, at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to teat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief :
(a) to continue to treat, except under certain circumstances when doctor can abandon his patient;
(b) to take reasonable care of his patient;
(c) to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, "Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing."
(d) Not to undertake any procedure beyond his control:
This depends on his qualifications, special training // 43 // and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating complicated case.
(e) Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/ knowledge which he comes to learn in confidence from his patient and such a communication is privileged communication.
Conclusion: The formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent right and duties, forming the basis of liability of a medical practitioner, due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of any other service provider. The concept of a doctor- patient relationship from the foundation of legal obligations between the doctor and the patient. In the present case, as already held above, doctor-patient relationship stood established, contractually, between the patient and the appellant.
(2) Duty of Care which a doctor owes towards his patient.
40. Once, it is found that there is 'duty to treat' there would be a corresponding 'duty to take care' upon the doctor qua/his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the principle of 'duty to take care' is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal 'duty to treat' may arise in a contractual relationship or Governmental hospital or hospital located in a public sector undertaking. Ethical 'duty to treat' on the part of doctors is clearly covered by Code of Medical Ethics, 1972. Clause 10 of his Code deals with 'Obligation to the Sick' and Clause 13 cast obligation on the part of the doctors with the captioned "Patient must not be neglected". Whenever there is a breach of the aforesaid Code, the aggrieved patient or the party can file a petition before relevant Disciplinary Committee constituted by the concerned Stated Medical Council."
// 44 //
39. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
40. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs // 45 // would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) 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.
// 46 // Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
// 47 // VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation.
Such malicious proceedings deserve to be discarded against the medical practitioners.
// 48 // XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
41. In Jacob Mathew (Dr.) Vs. State of Punjab & Anr. III (2005) CPJ 9 (SC), Hon'ble Supreme Court has observed thus :-
"26. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent now-a-days is to obtain the consent of the patient or of the person incharge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
49. We sum up our conclusions as under :-
// 49 // (1) Negligence is the breach of a 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 definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three : 'duty', 'breach'' and 'resulting damage''.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of // 50 // knowledge available at the time of the incident and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(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, with 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 practises. 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."
42. In the instant case, the complainant vehemently argued that the Experts have opined against the O.P. No.1 to O.P. No.5 and nurses charts were manipulated, which comes within category of medical negligence.
43. We have perused the expert report. The Expert Committee have specifically mentioned in their report that the night duty nurse notes dated 10.01.2013 and 11.01.2013 shows total 1800 ml normal saline (0.9%) and total 360 ml of saline was infused in first 24 hour of // 51 // admission of patient, but the Committee has not mentioned that over dose of sodium saline was given to the complainant. In para 11 of the Experts gave final opinion that diagnosis mentioned "Hyponatremia with sepsis in a k/c/o HTN with hypothyroidism with psychiatric illness with suspected CPM / Extra pontine myelenosis" is appears to be correct as per provided document.
44. The complainant has not filed any affidavits of treating doctors of Medanta Hospital and Aditya Birla Memorial Hospital. According to the reports of Medanta Hospital and Aditya Birla Memorial Hospital, it is not established that the condition of Smt. Sarita Sharma, complainant was deteriorated due to overdose of sodium saline given by the O.P. No.4 & O.P. No.5. The above hospitals have not mentioned in their reports that Narayana Hospital, has wrongly diagnosed the disease of the complainant and had given wrong treatment and the condition of the complainant was deteriorated due to overdose of sodium saline given.
45 Medanta Institute of Neuro Sciences has diagnosed that Mrs. Savita Sharma, 58 years old lady brought from Shree Narayana Hospital, Raipur with diagnosis of sepsis, hypotremia, suspected EPM. had history of decreased oral intake for last 20-25 days associated with difficulty in waling for last 15 days. She was // 52 // admitted in Hospital and found to be hypontremic (92), rapid Na correction in 3 days (132).
MRI Brain done on 18.01.2013 - Suggestive of EPM Pt. remains in drowsy and quadriparetic state since the-transferred to Medanta for further care.
46. Aditya Birla Memorial Hospital also diagnosed that:-
Final Diagnosis :
1. Central Pontine + Extrapontine Myelinolysis with Spastic Quadriparesis.
2. Pseudo Bulbar Palsy.
3. Hypertension.
47. In Jacob Mathew Vs. State of Punjab (Supra), there are three essential components of negligence, namely, 'duty'', breach of that duty and the resulting damage. It has also been stated in the said judgment that as per the definition given in the "Law of Torts", Ratanlal & Dhirajlal (24th Eidtiion 2002, edited by Justice G.P. Singh), it has been elaborated that "duty" means a legal duty to exercise due care on the part of the party complained of, towards the party complaining about the former's conduct, within the scope of duty. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
// 53 //
48. According to the complainant, nurses charts are manipulated and various corrections were made therein which show that overdose of sodium saline was given to the complainant. The O.P. No.1 to 5 have given details regarding the Sodium Saline given to the complainant in para 7 of their written statement and also in affidavit of Dr. Sunil Khemka and Dr. Prakash Singh, therefore, merely, corrections were made in the nurses chart, it cannot be held that treading doctor committed any medical negligence. In the instant case, the overall facts and circumstances of the case indicate that the complainant was admitted in the O.P. No.1 with the complaint of "dull with drowsiness and difficulty in passing urine, burning micturation two days".
49. The history was given by the complainant and her relatives to the doctors . The expert committee also opined that the diagnosis done by the doctors are correct. The diagnostic tests were done and treatment was given to the complainant from time to time. There is no evidence on record to prove or indicate that there was any negligent act in the performance of their duty by the O.P. No.1 to O.P. No.5, or there was any element of duty in the chain of events that was neglected in the course of the treatment of the complainant. The element of medical negligence against the O.P. No.1 to O.P. No.5 is not established.
// 54 //
50. The facts of the judgements cited by the complainant are distinguishable from the facts of the instant case, therefore, the above judgement are not helpful to the complainant.
51. The complainant has not been able to prove that the O.P. No.4 & O.P. No.5 have committed medical negligence, therefore, the complainant is not entitled to get any compensation from the OPs.
52. Therefore, the complaint filed by the complainant against OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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