National Consumer Disputes Redressal
Prashant Tamhane vs P.D. Hinduja Hospital & Anr. on 30 July, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1000 OF 2017 (Against the Order dated 31/03/2017 in Complaint No. 221/2003 of the State Commission Maharashtra) 1. PRASHANT TAMHANE 17, KALANAGAR, BANDRA EAST, MUMBAI-400051 MAHARASHTRA ...........Appellant(s) Versus 1. P.D. HINDUJA HOSPITAL & ANR. VEER SAWARKAR MARG, MAHIM, MUMBAI-400016 MAHARASHTRA 2. DR. ASHIT HEDGE, INTENSIVIST P.D. HINDUJA HOSPITAL, VEER SAWARKAR MARG, MAHIM, MUMBAI-400016 ...........Respondent(s) FIRST APPEAL NO. 1099 OF 2017 (Against the Order dated 31/03/2017 in Complaint No. 221/2003 of the State Commission Maharashtra) 1. DR. AKSHIT V. HEGDE A/3 RATAN CHS 186 VIR SAVARKAR MARG MAHIM MUMBAI 400016 MAHARASHTRA ...........Appellant(s) Versus 1. PRASHANT TAMHANE & ANR. 17, KALA NAGAR BANDRA EAST MUMBAI 400 016 MAHARASHTRA 2. P.D HINDUJA HOSPITAL THROUGH ITS CHIEF EXECUTIVE OFFICER VEER SAVAKAR MARG MAHIM MUMBAI 400 016 ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER HON'BLE DR. SADHNA SHANKER,MEMBER
FOR THE APPELLANT :
Dated : 30 July 2024 ORDER
For the Complainant Dr M S Kamath, AR (Through VC)
For the Hospital Mr S B Prabhavalkar, Advocate (Physical)
For Dr Akshit V Hegde Mr Saurav Agarwal, Mr Ishan Gaur, Mr J
Hora and Ms Saloni Paliwal, Advocates
(Physical)
ORDER
PER SUBHASH CHANDRA
1. The present appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (in short, 'the Act') against the order dated 31.03.2017 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, 'the State Commission') in Complaint no. 221 of 2003, whereby the complaint of the appellant was allowed.
2. In view of the fact that both the appeals emanate from the same order, they are proposed to be disposed of by way of a common order. For the sake of convenience, FA no.1000 of 2017 is taken as the lead case.
3. The brief facts of the case are that Mrs Swapna Tamhane wife of the appellant was under the treatment of respondent no.1 (Hospital) under the respondent no.2 (Doctor). On 21.07.2002, the wife of the appellant (the patient) developed severe pain in the left side of the chest for which the patient approached the respondents and was informed that the patient was suffering from pleural effusion or collection of fluid around the lungs and was advised removal of fluid ('pleural tapping'). On 22.07.2022 the patient was subjected to the procedure of pleural tapping at 05.30 pm in the casualty department of respondent no.1, where the patient collapsed. The patient was admitted to the hospital for a tear in the spleen and was subjected to spleen removal on an emergency basis. The patient did not recover after the surgery and expired on 23.07.2002 at about 07.30 am. Post mortem was conducted and the cause of death was stated to be 'unnatural' due to trauma to the spleen. According to the appellant the patient died due to bleeding and septicaemia although she was fit to undergo the minor procedure of pleural tapping and that the tear in the spleen was the precipitating cause of the bleeding disorder. It was contended by the appellant that the patient was a known case of Hepatitis and the standard of care at the relevant time demanded that the procedure should have been done under sonographic assistance to prevent complication. The patient's husband filed a complaint (no.221 of 2003) before the State Commission which held as under:
14. In the facts and circumstances of the case Opponent No.1 Hinduja Hospital have no role as such in respect of deficiencies in service rendered to the Patient in particular. The liability for deficiency in service was exclusively that of Dr.Hegde. Rulings cited on his behalf, in the facts and circumstances of the case, cannot come to his rescue to escape liability for medical negligence, lack of care, and deficiency in service.
15. Now as regards compensation payable, Claim aggregating to the sum of Rs.87,50,000/- appears exaggerated and demand made is exorbitant. Compensation cannot be a lottery or jackpot for a Patient who was suffering from ailments like jaundice, hepatitis for which she was under medical treatment of Dr.Hegde. At the same time, we cannot ignore imponderables such as Patient may have died in due course in near future with serious ailments she suffered prior to her death. As stated Swapna was aged about 35 years. Her annual income is stated as Rs.4.25 Lakhs. The claim however is not supported by any adequate and satisfactory material except a copy of isolated IT return form showing aggregate income of Rs.4.25 Lakhs per year. Loss to the family can be computed with annual net income of Rs.4 Lakhs using multiplier 10 as appropriate in the facts and circumstances. Considering the just and CC/03/221 Page 14 of 14 reasonable sum as compensation, we feel ends of justice would be met if we award compensation in the sum of Rs.40 Lakhs (Four Lakhs x 10), towards Hospital expenses, we award sum of Rs.One Lakh and for the litigation costs Rs.25,000/-. Thus, we award total sum of Rs.41,25,000/- (Rupees Forty One Lakhs Twenty Five Thousand only) [all inclusive] as just and reasonable compensation payable by Opponent No.2-Dr.Hegde to the Complainant in the peculiar facts and circumstances of the case. The amount shall be paid within ninety days from the date of this order failing which the amount due as stated shall carry interest at the rate of Rs.9% per annum till realization. Complaint is partly allowed and disposed of accordingly.
4. The appellant has impugned this order before us with the following prayer:
The appellant prays that the order of the State Commission be amended/ modified and both the respondents be held liable to compensate the appellants in the facts and circumstances of the case as mentioned in the appeal memo;
The compensation as decreed by the State Commission be enhanced to Rs.87,00,000/- plus interest @ 10% per annum from 2003 thereon in view of the prolonged litigation and time lost by the appellant in the case;
Hon'ble National Commission pass orders for costs of this appeal which is quantified at Rs.2,50,000/-; and For any other order/ costs as this Hon'ble Commission deems fit.
5. A cross appeal (FA no.1099 of 2017) has been filed by the Doctor Dr Ashit V Hegde, a consultant Physician at respondent no.2 hospital (P D Hinduja Hospital) contending that he examined the wife of the respondent "(patient)" for the first time on 20.06.2002 as an out patient when the patient complained of fever and jaundice. He detected icterus or jaundice and abdominal distension. As per provisional diagnosis, the patient was found to be suffering from enteric fever or malaria or leptospirosis. He advised the patient to get a Liver Function Test (LFT) test and ultrasound done. On 27.06.2002, based on the test report of the patient which showed the LFT to be quite deranged, the patient was diagnosed to be suffering from jaundice. On enquiry, the patient confessed that she used to consume alcohol in excess. The doctor's clinical diagnosis was of acute alcoholic hepatitis based on a background of chronic alcoholic liver disease. As per the standard practice, the doctor prescribed steroids to the patient as she was not keen to get admitted to the hospital.
6. According to the doctor on 05.07.2002, the patient visited the hospital for follow up and showed signs of recovery as she felt better though jaundice persisted. The doctor advised the patient to continue with the steroids and 'admission SOS' in case of requirement. During follow-up visit to the Hospital on 12.07.2002 the patient was found to be recovering from jaundice as she had no fresh spider nevi, no flaps, no edema feet and her ascites (collection of fluid in abdomen) had decreased. However, the patient had developed swelling due to steroids. Therefore, the dose of steroids was decreased. On 14.07.2002 evening, the patient visited the doctor due to chest pain. Chest x ray was undertaken and found to be normal. The doctor reviewed the patient on 20.07.2002 for chest pain and found no other symptom except mild dyspepsia (heart burn). On 22.07.2002, the doctor received a call from the patient complaining of severe chest pain. She was therefore asked to come to the respondent no.2 hospital. A fresh x ray revealed that there was pleural effusion in the chest for which pleural tapping was decided upon. The doctor stated that a pleural tap is an OPD procedure without requiring the admission of the patient. While some blood was drawn on the first attempt which was not uncommon, serosanguineous fluid was drawn on the next attempt and was sent for examination. As the patient complained of dizziness, the doctor advised her to lie down until she felt better. However, the doctor was informed by the Chief Medical Officer (CMO) of the emergency and that the BP of the patient had dropped and she was still feeling dizzy. At around 07.20 pm the doctor was informed over phone that the patient had become breathless (dyspnoeic). Therefore, Cardio Pulmonary Resuscitation team (CPR) was called and the patient was shifted to Intensive Care Unit (ICU). The patient was stablized and a CT Scan of her chest and abdomen was done by Dr Vipil Parikh, MD (Radiologist). It was seen that the left lung had collapsed due to large pleural effusion and there was chronic pancreatitis, including fluid in and around the spleen and the spleen, though not enlarged, had a bizarre appearance which the radiologist could not explain. The doctor, based on the CT scan report, contacted Dr Sudeep Shah, a General Surgeon who conducted splenectomy after consulting respondent no.1. The patient succumbed after few hours of the surgery. Post mortem was conducted by the Civil Surgeon on 26.07.2017 as per which the cause of death was "Haemorhagic Shock Following Disseminated Intravascular Coagulation as a complication of septicaemia complicated by iatrogenic rupture of spleen during pleural tapping with splenectomy in a known case of Chronic Hepatocellular failure".
The doctor in his cross appeal has prayed to:
Set aside order dated 17.04.2017 passed by the State Commission, Mumbai in Consumer Complaint no. CC/03/221 and allow the First Appeal filed by the appellant against order dated 17.04.2017 passed by the State Commission, Mumbai in Cc no. Cc/03/221; and Pass any appropriate order as may be deemed just and necessary in the facts and circumstances of the case.
7. We have heard the complainant who was represented by an authorised representative through VC, the learned counsel for the hospital as well as the doctor and considered the material on record carefully.
8. On behalf of the appellant it was stated that the wife of the complainant was under treatment of respondent no.1 hospital under respondent no.2 doctor. As the patient developed severe pain in the left side of the chest on 21.07.2002, the respondents informed her that she was suffering from pleural effusion and advised removal of the fluid through pleural tapping. The patient was subjected to procedure of pleural tapping at 05.30 pm on 22.07.2002; however, she collapsed shortly thereafter whereupon she was admitted to the hospital for a tear in the spleen and was subjected to removal of spleen on an emergency basis. The patient did not recover from the surgery and was declared dead at 07.30 am the next day, i.e., on 23.07.2002. In the post mortem report, the cause of death was held to be "unnatural and due to trauma to the spleen". The appellant prayed that the said negligence and deficiency of service in rendering care to the patient as held by the State Commission be confirmed.
9. On behalf of the respondents, the learned counsel for respondent no.1 (hospital) have stated that the complainant while relying upon the post mortem report, had not filed the affidavit of Dr Prasahant N Samberkar, the inquest surgeon and had also not examined Dr Samberkar. Respondent no.1 also pointed out that in the entire complaint, there were no allegations of medical negligence on the part of respondent no.1 (hospital) and its para medical staff. It was contended that the appellant had not put forth any specific instances of medical negligence by respondent no.1, or alleged respondent no.1 to be vicariously liable for the alleged act on the part of respondent no.2, Dr Ashit Hegde. According to respondent no.1, for the first time while filing its rejoinder, appellant (patient's husband) had alleged that respondent no.1 hospital was vicariously liable for the acts of the consultant/ surgeon attached to the hospital. According to respondent no.1 the appellant had not amended the complaint to include the charge of vicarious liability which was a mixed question of facts and law. Hence, it was prayed that the original complaint be dismissed with compensatory costs. It was contended that the impugned order (paragraph 14) had exonerated the hospital wherein the State Commission had observed that Hinduja Hospital had no role in respect of deficiency in service rendered to the patient and the same had also not been challenged.
10. Learned counsel for respondent no.2 (doctor) submitted that he had proved that he treated the patient to the best of his abilities and as per the standard of medical care and there was no negligence on his part qua the deceased. He further submitted that the State Commission had not considered the entire material put forth while passing the impugned order dated 31.03.2017 and therefore, the observations of negligence and award of compensation passed against him deserves to be set aside. The hospital also contended that the doctor was not negligent and there was no question of liability on him and therefore, any vicarious liability on the part of respondent hospital.
11. The submissions of all the parties have been carefully considered. The law relating to what constitutes medical negligence has been laid down in the Hon'ble Supreme Court's judgment in Jacob Mathew Vs. State of Punjab & Anr., in Criminal Appeal Nos. 144-45 of 2004 decided on 05.08.2005, (2005) 6 SCC 1. It is based on the Bolam Test (1957) 2 A11 ER 118. The test for medical negligence is based on the deviation from normal medical practice and it has been held that establishment of negligence would involve consideration of issues regarding (1) state of knowledge by which standard of care is to be determined, (2) standard of care in case of a charge of failure to (a) use some particular equipment, or (b) to take some precaution, (3) enquiry to be made when alleged negligence is (a) due to an accident, or (b) due to an error of judgment in choice of a procedure or its execution. For negligence to be actionable it has been held that the professional either (1) professed to have the requisite skill which he did not possess, or (2) did not exercise, with reasonable competence, the skill which he did possess, the standard for this being the skill of an ordinary competent person exercising ordinary skill in the profession.
[ emphasis added ] It was further held that simply because a patient did not respond favourably to a treatment or a surgery failed, the doctor cannot be held liable per se under the principle of res ipsa loquitur. In a claim of medical negligence, it was laid down that it was essential to establish that the standard of care and skill was not that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. For negligence to be actionable to be attributable, three essential components of "duty", "breach" and "resulting damage" need to be met, i.e.: (i) the existence of a duty to take care, which is owed by the defendant to the complainant; (ii) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (iii) damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant.
12. In this connection, it is apposite to consider that the Hon'ble Supreme Court in Jacob Matthew (supra) laid down as under:
Paras 12,13, 38 and 48(5). The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law, i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
Paras 16, 14, 17. While negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen. It was the imperative duty of the accused person to have adopted. A clear distinction exists between 'simple lack of care' incurring civil liability and 'very high degree of negligence' which is required in criminal cases.
Paras 31, 30. The subject of negligence in the context of the medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. ..... To hold in favour of existence of negligence, associated with the action or inaction of a medical profession, requires an in-depth understanding of the working a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.
Paras 48(2), 48(4), 19 and 24. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of 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 professional 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. The classical statement of law in Bolam case, (1957) 2 AII ER 118, at p.121.D F) [set out in para 19 herein], has been widely accepted as decisive, of the standard of care required both of professional men generally and medical practitioners in particular, and holds good in its applicability in India. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioners exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. It is not necessary for every professional to possess the highest level of expertise in that branch which he practises. Three things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, 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 point of time (that is, the time of incident) on which it is suggested as should have been used. Thirdly, 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.
Para 26. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipse loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive.
Paras 10, 11, 48(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. 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, as recognised, are three: "duty", "breach" and "resulting damage", that is to say:
(i) The existence of a duty to take care, which is owed by the defendant to the complainant;
(ii) The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
(iii) Damage, which is both casually connected with such breach and recognised by the law, has been suffered by the complainant.
If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.
The Hon'ble Supreme Court has thus clearly laid down the criteria of a failure to provide the standard of care expected of a prudent doctor of reasonable skill resulting in damage and held that the adherence to established medical protocols and practice would define standard of care.
13. The State Commission has held the doctor Dr Ashit Hegde was liable for deficiency and proceeded to award relief to the appellant. As held in Jacob Mathew (supra) in order to establish the deficiency on the part of the doctor or medical negligence there is a requirement of three ingredients:
(i) The existence of a duty to take care, which is owed by the defendant to the complainant;
(ii) The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
(iii) Damage, which is both casually connected with such breach and recognised by the law, has been suffered by the complainant.
The claimant is required to satisfy the court based on evidence that these three ingredients are made out for the defendant to be held liable for medical negligence.
14. The State Commission's findings do not bring out the reasons for the same as per the law laid down by the Hon'ble Supreme Court in Jacob Mathew (supra). It is essential that medical negligence be established on the basis of cogent findings that specifically bring out the three essential components of 'duty', 'breach' and 'resulting damage' that needs to be met, i.e., (i) the existence of a duty to take care, which is owed by the defendant to the complainant; (ii) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (iii) damage, which is both casually connected with such breach and recognised by the law, has been suffered by the complainant. It is also important that criminal negligence has to be established on the basis of a rash and negligent act which is defined by mens rea.
15. As per the record, it is apparent that the patient had visited the respondent hospital on several occasions to consult with the respondent doctor and various tests, including x-ray and Liver Function Test was conducted on her. It is also evident from the submissions of the Doctor that the patient was suffering from various ailments apart from being a chronic alcoholic. This has not been challenged by the patient. The fact that the deceased patient was suffering from pleural effusion is not denied. The appellant's case is that the standard of care for the procedure for pleural effusion on the day it was done required hospitalisation and that it was done in the OPD/ Casualty ward. The standard of care for such a procedure, however, did not require hospitalisation according to the hospital and doctor. The same has not been countered with any expert opinion. As per the Bolam Test and as laid down in Jacob Mathew (supra), medical negligence on part of the doctor and the hospital is therefore, not established conclusively. On the other hand, it is evident that the patient was provided various medical support in the hospital although she could not survive. The appellant did not initially make allegations against the hospital. It is only during final arguments that such allegation have been made. However, these have not been established with evidence being led. Evidence of the surgeon who conducted the post mortem has not been led and no expert opinion brought on record.
16. Further, the quantification of compensation to be awarded in the case of medical negligence has to be considered in terms of the law laid down in Malay Kumar Ganguly vs Dr Sukumar Mukherjee and Ors. (2009) 9 SCC 221 decided 07.08.2009 it has been held that:
"Grant of compensation involving an accident is within the realm of law of torts. It is based on principle of restitutio in integrum. This principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. When death occurs, the loss occurring to dependent must be taken into account; the balance of loss and gain to him must be ascertained; the position of each dependent in each case may have to be considered separately".
17. In Nizam's Institute of Medical Sciences vs Prasantha S Dhananka and Ors. (2009) 6 SCC 1 decided 14.05.2009 entitlement of loss has been held that:
"The court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation".
In the instant case, the State Commission has calculated compensation only on the basis of one income tax return without considering the above aspect in order to arrive at a reasonable compensation. The quantification therefore, cannot be sustained.
18. It has not been established through any expert opinion that the surgical process of pleural tapping was not a procedure to be undertaken in an OPD as was done. No expert opinion has been brought on record by the appellant to establish that the standard of care and treatment by the respondent doctor amounted to negligence in the treatment or carrying out the procedure. According to the post mortem report, the cause death was "Haemorhagic Shock Following Disseminated Intravascular Coagulation as a complication of septicaemia complicated by iatrogenic rupture of spleen during pleural tapping with splenectomy in a known case of Chronic Hepatocellular failure". The cause of death of rupture of spleen during pleural tapping and subsequent splenectomy cannot be attributed entirely to the doctor as neither the doctor who performed splenectomy is arrayed as a party nor has it been established how septicaemia is a known case of chronic hepatocellular failure was not the cause through an expert's opinion. The finding of the post mortem report does not bring out any action attributable to the doctor or the hospital, which, in any case has been exonerated of any liability. The prayer for vicarious liability does not sustain as there is no liability that can be fastened on the doctor.
19. In the instant case, the basis of compensation is a random Income Tax return without there being anything on the record to establish earning capacity of the deceased on the basis of which such a quantification has been accepted. For these reasons the findings on this aspect by the State Commission is also not sustainable.
20. In view of the foregoing, we do not find any reason to uphold the order of the State Commission. The same is set aside. FA no.1000 of 2017 is disallowed. Accordingly, FA no. 1099 of 2017 is allowed. Parties shall bear their own costs.
21. Pending IAs, if any, are also disposed of with this order.
...................................... SUBHASH CHANDRA PRESIDING MEMBER ............................................. DR. SADHNA SHANKER MEMBER