State Consumer Disputes Redressal Commission
Amitabh Rishi vs Escorts Heart Insitute And Research ... on 13 January, 2017
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision:13.01.2017 Complaint Case No. 377/1997 In the matter of: Amitabh Rishi S/o Sh. T.R.Rishi R/o G-4/46, Double Storey Lajpat Nagar New Delhi Master Nishant Rishi Through father, legal and Natural guardian Sh. Amitabh Rishi R/o G-4/46, Double Storey Lajpat Nagar New Delhi .........Complainants Versus Escorts Heart Institute and Research Centre Okhla Road New Delhi Dr. NareshTrehan Dr. (Mrs.) SavitriShrivastava Medical Superintendent Escorts Heart Institute and Research Centre Okhla Road New Delhi ..........Opposite Parties CORAM N P KAUSHIK - Member (Judicial) 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes N P KAUSHIK - MEMBER (JUDICIAL) JUDGEMENT
Complainant no. 1 Sh. Amitabh Rishi is the father of the complainant no. 2 Master Nishant Rishi. Master Nishant Rishi was brought to the Escorts Heart Institute & Research Centre (OP-1) on 12.08.1996 when he was about two years old. Complainants disclosed in the complaint that Master Nishant Rishi was heaving a hole in his heart since birth. OP-1 hospital advised haematology test which was carried out on 12.08.1996. Second haematology test was conducted on 09.09.1996. Surgery was advised. Investigations revealed that Master Nishant Rishi (hereinafter referred to as the'child') was not suffering from 'a simple hole in the heart' but he had a heart disorder known as 'Tetralogy of Fallot'. Father of the child (complainant no.1) contacted the OP hospital after a month i.e. on 09.09.1996. Child was examined by one Dr. ParvathiIyer who found the child having chest infection. Complainant no. 1 was asked to bring the child on the next day i.e. on 10.09.1996. Child washowever brought to the hospital on 13.09.1996 in the emergency with the following history:
Cyanotic spell since 1.1/2 years Excessive crying for one day Turns blue on crying X 1 day Altered sensorium since morning Child was admitted at about 11:30 am. An amount of Rs. 10,000/- was deposited. At about 13:30 hrs child was taken for CT Scan. Dr. SavitriSrivastava (OP-3), a Senior Consultant Cardiologist and other doctors in the emergency examined the child. Oxygen and intravenous fluids were started immediately on admission to stabilize the condition. It was noticed that the child was moving the right half of the body less than the left half. Clinical suspicion of paralysis due to severe cyanotic spell was aroused at about 4:00 pm. Child was taken for CT scan at 04:30 pm. Report of the CT scan aroused the suspicion of raised intra cranial tension.
Child was put on oxygen cylinder as a result of which he started fainting. Doctor on duty directed the nurse to take the child to emergency. Complainant no. 1 further alleged that the nursing staff pushed the trolley in a reckless and negligent manner which resulted into breaking of i vfluid bottles, one being given to the child and the other lying spare on the trolley. This happened while taking turn in the corridor. Complainant no. 1 further alleged that due to severe attack on the brain, right side of the child got completely paralyzed. His face, mouth and eyes turned towards right. Child became unconscious. Complainant no. 1 alleged that he requested Dr. SavitriSrivastava to summon a brain specialist. Only after his repeated requests, Dr. RakeshAggarwal a brain specialist was called from Apollo Hospital. Dr. RakeshAggarwal advised Dr. SavitriSrivastava to shift the child to Apollo Hospital immediately. Complainant no. 1 alleged that Dr. SavitriSrivastava (OP-3) wasted two hours consulting other doctors and OP-1 hospital authorities. On reaching Apollo Hospital, Dr. RakeshAggarwal allegedly told the attendants that a considerable damage had been caused to the brain because of delay in treatment. Child was sent to ICCU where he remained unconsciousness for 16 days. Only on 16th day he regained consciousness. Allegation of the complainants is that due to the negligence of Dr. SavitriSrivastava and the staff of the OP hospital, the right side of the child got paralyzed. Child became handicapped for the rest of his life. Complainants also disclosed that the hospital authorities apologized to the complainants for their negligence and as a cover up paid Rs. 10,000/- as damages. Child lost future prospects of job, marriage etc. He was forced to lead the life of a dependent.
On the basis of the aforesaid spectrum of facts complainants alleged that the doctors and the staff of the OP hospital were negligentfor the aforesaid reasons:
Child was put on empty oxygen cylinder Even after coming to know the factum of the oxygen cylinder being empty, the mask on the face of the child was not removed to enable him to breathe normally.
The trolley on which the child was being taken by the staff after CT Scan was pushed rashly and negligently resulting into the breaking of IV Fluid bottles.
Dr. SavitriSrivastava was negligent in not calling the brain specialist promptly. She wasted four precious hours resulting into further deterioration of condition.
During the period from 14:00 hours to 20:00 hours, no treatment was given to the child.
Medical Superintendent (OP-4) of OP hospital did not take immediate steps for transferring the child to Apollo Hospital.
On the basis of the aforesaid allegations complainants sought compensation to the tune of Rs. 15,00,000/- (Rs. Fifteen Lakhs Only) alongwith interest @ 18% p.a. from the date of filing of the complaint till the date of its realization.
Defence raised by the OP hospital is that the oxygen and intravenous fluids were started immediately after admission, to stabilize the condition. After seeing CT Scan report which raised suspicion of raised cranial tension, Dr. RakeshAggarwal, a Neurologist on the panel of the OP hospital was asked to visit. Dr. RakeshAggarwal examined the child and after perusing the CT Scan report concurred with the treatment being given to the child. OPs submitted that the case sheet notes showed a prompt and proper treatment given to the child. They further submitted that the condition of the child deteriorated not because of the negligence on the part of the doctors or the staff but because of the cyanotic spells and supply of unoxygenatedblood to the brain. Child was brought to the hospital when he had already suffered cyanotic spells. Deterioration in the condition of the child had taken place in the morning of 13.09.1196. Child was brought to the OP hospital with 'altered sensorium and recurrent spells'. OP hospital denied if Dr. RakeshAggarwal, a Neurologist was called only on the request of the attendants. Dr. SavitriSrivastavahad suspected some abnormality in the CT Scan and thereafter she contacted Dr. RakeshAggarwal. In relation to the treatment, OP hospital denied if no treatment was given prior to the visit of the Neurologist. OPs further submitted that the 'Dexamethasone' and 'Mannitol' had already been started after viewing the CT Scan. After examination Dr. RakeshAggarwal agreed with the treatment that had already been started.
Contention of the OPs is that the children with complex congenital heart defects do have multifarious problems in the absence of early surgery. Child was brought to OP hospital for the first time when he was 2½ years old. There was no negligence whatsoever in the treatment given to the child. Complications arose due to the serious condition of the child. OPs denied if the oxygen cylinder was empty or the i vfluid bottles got broken.
Before proceedings further, it may be mentioned here that this Commission vide orders dated 23.05.2005 awarded a compensation of Rs. 2.5 lacs in favour of the complainants. The Hon'ble National Commission vide orders dated 22.11.2012 remanded the case back to this Commission to decide the same afresh. It was observed that the State Commission had decided the case proceeding on a wrong premise that the patient suffered from 'brain hemorrhage' which was not the case of the parties.
I have heard at length the arguments addressed by the counsel for the complainant Sh. Sh. S C Chawla Advocate and counsel for the OPs Sh. Rajiv Sharma Advocate, at length.
Main controversy before this Commission is whether the condition of the child at the time of his transfer to Apollo Hospital at 07:00 pm on 13.09.1996 was the result of the negligence on the part of the OPs or had occurred as a natural consequence of non-treatment of the disorder of Tetralogy of Fallot. There is no dispute with the proposition that the disorder of Tetralogy of Fallot is a serious disorder characterized by: (i) a large hole in the ventricular septum; (ii) obstruction in the flow of blood from right side of heart to lungs (pulmonary stenosis); (iii) leading to thickening of right ventricular wall (right ventricular hypertrophy); and (iv) aorta being more to the right. Unoxygenated blood going to the whole body resulting in cyanosis. Patients are prone to cyanotic spells i.e. excessive crying, increasing blueness, fast breathing, loss of consciousness and convulsion.ChildNishant was admitted to the OP hospital at about 11:30 am on 13.09.1996. As per case sheet content of oxygen in his blood was found to be at 85% at 12:00 noon. He was given oxygen by mask.Saturation improved to 100% which was recorded at 02:00 pm. Plea of the complainant that the oxygen cylinder used by the OP hospital was empty, is thus devoid of merits. It is not the case of the complainant that more than one oxygen cylinder were used. Improvement in the oxygen level shows that the cylinder did contain oxygen. At 04:00 pm the following signs were seen:
Sensorium altered Neck rigidity VII nervepalsy Conjugate deviation of eyes towards right rt. Hemiparesis grade III powerbilateral papilloedema After the appearance of these symptoms, patient was sent for CT scan of the head. CT scan showed midnight shift and signs of rays CT scan. It was noticed at 05:30 pm. The drugs of mennitol and dexamethane were started. On discussion with Dr. RakeshAggarwal, same treatment was continued. Dr. RakeshAggarwal a Neurologist examined the child at 06:00 pm. He agreed with the treatment being given. He however advised the transfer of the patient to Apollo Hospital. Clearly at 05:30 pm administration of drugs through i v fluid had started at 05:30 pm. Complainant's contention that four precious hours were wasted, does not hold water. Similarly the plea that from 14:00 hrs to 20:00 hrs no treatment was given, is again devoid of merits. Nothing has come on record to show that there was some unreasonable gap between the advice of the neurologist and the shifting of the child to Apollo hospital. Submission of the complainant that the trolley carrying the child was pushed rashly supports the case of the OPs that the hospital staff was acting promptly for taking the child for a CT scan.
Medical literature produced by the OP shows that in case of Tetralogy of Fallot a definitive repair should be done as a primary procedure. Primary repair is advised in earlier infancy between 4 and 6 months of age. Surgical repairs have to be carried out at presentation, in case of symptomatic infants. Elective repair is carried out by the first birthday. This helps in averting cerebral complications for which there is no cure. In case surgical repair is delayed children get severe cyanotic spells which are potentially fatal and can lead the brain damage. The incidence of this cyanotic spell could be as high as 20% to 70%. Child Nishant was admittedly about 2½ years old at the relevant time. He was brought to the emergency with symptoms of cyanotic spell since 1½ years and excessive cries for one day. He was turning blue on crying. On the day he was brought to the hospital there was altered sensorium as well. It goes to show that the symptom of altered sensorium had alreadystartedwhen the child came to the hospital. Cyanotic spell clearly had led to brain damage. Signs of rigidity of neck, VII N Palsy and conjugate deviation of eyes towards right,hemiparesis grade III power with bilateral papilloedemawere observed by the doctors.In other words at 04:00 pm, the damage to the brain had already started showing further signs of deterioration of condition.
It is not the case of the complainant that the drugs of mannitol and dexamethane given to the child were not the standard medicines as per medical protocol.
Boot is rather on the other leg. Parents of the child Nishant failed to get the child treated well in time. Why did they wait for treatment when they reported at the emergency when child had cyanotic spells since 1½ years of age. There was no magic to cure the child when he had already suffered irreversible brain damage. Parents of the child had come to the OP hospital first on 12.08.1996. They waited for a complete one month when they reported again only on 09.09.1996. They were asked to bring the child on the very next day i.e. 10.09.1996. They however brought the child only on 13.09.1996.
Ld. Counsel for the Complainant has produced an article:What arethe Effect of Lack of Oxygen to the Brain written by Blake Biddulph. It reads that in case of severely limited or lacking of supply of oxygen to the brain for the long periods of time,the patient becomes comatose. Cerebral hypoxia is the condition in which the brain experiences a lack of oxygen. Non-supply of oxygen to the brain in the present case did not occur on 13.09.1996 alone. Deoxygenated blood had been circulatingin the body including the brainuptil the age of 2½ years. It had resulted into brain damage when the child came to the hospital. The medical literature thus produced by the complainants does not help them.
In case of Kusum Sharma and Ors. v. Batra Hospital and Medical Research Centre and Ors.,2010 (1) CPJ 29 SC, the Hon'ble Supreme Court culled out the following principles:
"(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 is 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 medial practitioner would be liable only where his conductfell 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.
(vi) 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 highest 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 unnecessarily 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, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against medical practitioners.
(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."
Applying of the said standard, we find it difficult to agree with the complainants that the OPs were negligent in treating the child Nishant from 11:30 am to 07:00 am on 13.09.1996. I am, therefore, of the considered opinion that the complaint is devoid of merits. The same is hence dismissed.
Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
(N P KAUSHIK) MEMBER (JUDICIAL)