National Consumer Disputes Redressal
Smt. Rashmi Taryon vs Noida Medicare Centre Ltd., on 5 October, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 235 OF 2002 1. SMT. RASHMI TARYON W/O LATE SH.RAJESH TARYON 1760, GOVERNMENT QUARTERS, LAXMIBAI NAGAR DELHI 2. MS. STAKSHI TARYON D/O LATE SH. RAJESH TARYON, MINOR, SMT. RASHMI TARYON 1760, GOVERNMENT QUARTERS, LAXMIBAI NAGAR, DELHI 3. SMT. RASHMI TARYON & ANR. WD/O. LATE SH. RAJESH TARYON R/O. 1760 GOVT. QUARTERS LAXMI BAI NATAR DELHI ...........Complainant(s) Versus 1. NOIDA MEDICARE CENTRE LTD., Through Its Managing Director Dr. Naveen Chaudhary.,
Vidya Sagar Institute of Mental Health & Neurosciences, Nehru Nagar, New Delhi -110 065. 2. DR. NAVEEN CHAUDHARY, MANAGING DIRECTOR, NOIDA MEDICARE CENTRE LTD. , 16-C, BLOCK E, SECTOR 30, NOIDA -201 301, DISTRICT -GHAZ UTTAR PRADESH 3. Dr. Sanjay Wadhawan, Head Of Department Of Renal Unit, Noida Medicare Centre Ltd., 16-C, Block E, Sector 30, Noida - 201 301 (District Ghaziabad), U.P 4. Dr. FHarsh Jauhri, Doctor Incharge & Transplant Surgeon, Through Noida Medicare Centre Ltd., 16-C, Block E, Sector 30, Noida-201 301 (District Ghaziabad), U.P. 5. DR. AJAY BHALLA, GASTROENTOLOGIST(LIVER SPECIALIST) NOIDA MEDICARE CENTRE LTD., 16-C, BLOCK - E, SECTOR 30 , NOIDA 201301, DISTT. GHAZIABAD UTTAR PRADESH 6. DR. MANOJ JOHAR, PLASTIC SURGEON, REG.NO.EP-23205, NOIDA MEDICARE CENTRE LTD., 16-C, BLOCK - E SECTOR - 30, NOIDA 201301 DISTRICT GHAZIABAD, UTTAR PRADESH 7. DR. SANDEEP MEHTA, PLASTIC SURGEON THROUGH NOIDA MEDICARE CENTRE LTD., 16-C, BLOCK - E, SECTOR - 30, NOIDA 201301 DISTRICT GHAZIABAD, UTTAR PRADESH 8. DR. SATISH CHHABRA, NEPHROLOGIST(TRANSPLANT PHYSICIAN) THROUGH NOIDA MEDICARE CENTRE LTD. , 16-C, BLOCK - E, SECTOR - 30, NOIDA- 201301 DISTRICT- GHAZIABAD, UTTAR PRADESH 9. NOIDA MEDICARE CENTRE LTD. & ANR. 16 - C BLOCK - E SECTOR - 30 NOIDA - 201 301 DIST. GHAZIABAD U.P. 10. DR. SATISH CHHABRA (Nephrology) Max Balaji Hospital, 188 A, Indraprastha Extension, Patparganj, Delhi - 110 092. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. Vineet Bhagat, Advocate with
Mr. Satya Priya, Advocate
Ms. Radhika Gupta, Advocate For the Opp.Party : For the Opp. Parties 1,3&4 : Ms. Rachna Gupta, Advocate
For the Opp. Party 2 & 7 : Already deleted
For the Opp. Party 5 & 8 : NEMO
For the Opp. Party No. 9 : Mr. Pradeep Kumar, Advocate
Dated : 05 Oct 2015 ORDER
DR. S. M. KANTIKAR, MEMBER
Hepatitis C is one of the commonest chronic viral infections world-wide and has major healthcare and health economic implications.
Hepatitis C virus (HCV) infection is relatively common among patients with end-stage renal (kidney) disease (ESRD) on dialysis and kidney transplant recipients. HCV infection in hemodialysis patients is associated with an increased mortality due to liver cirrhosis and hepatocellular carcinoma. The severity of hepatitis C-related liver disease in kidney transplant candidates may predict patient and graft survival after transplant. Liver biopsy remains the gold standard in the assessment of liver fibrosis in this setting. Kidney transplantation, not haemodialysis, seems to be the best treatment for HCV+ve patients with ESRD.
1.The complainant, Smt. Rashmi Taryon, filed this complaint in 2002 against OPs alleging medical negligence, which caused death of her husband, Mr. Rajesh.
2. The brief facts of the complaint are that Mr. Rajesh Taryon, since deceased, (hereinafter referred to as 'the patient') was suffering from chronic renal failure (CRF). He was on regular dialysis on OPD basis since 3.10.1999. The patient approached OP 1/Noida Medicare Centre, NOIDA, U.P, consulted the OP 3/Dr. Sanjay Wadhwa, Head of Department of Renal Transplant unit and OP 4/Dr. Harsh Jauhri, a transplantation surgeon. Both doctors convinced the patient and complainant that, the Renal Transplantation (hereinafter referred as 'RT') is the only cure for such condition. Prior to RT, several medical check-ups revealed that the patient was suffering from hypothyroidism or adrenal insufficiency. The OP totally ignored those conditions. During mid-December, 1999, the OP 3 informed the complainant that, the patient was HCV negative, accordingly, the patient was admitted in OP 1 hospital, on 6.1.2000 and the RT was scheduled for 11.1.2000. Then, again OP 3 informed the complainant that, the pathologist Dr. Nalini K. Singh had wrongly informed him on telephone that deceased was HCV negative, but the patient was HCV positive.
3. Despite knowing the HCV positive status, OP 3 persuaded the patient and complainant for the need of RT, otherwise, treatment for HCV will consume at least 6 months by injections Interferon. The success rate of cure from HCV is only 20%. If at all any problem persists, it can be treated after the RT. Hence, believing the words of OP 3 and other OPs, the complainants agreed for the RT. Therefore, patient's wife the complainant No. 1, Smt. Rashmi Taryon, donated her kidney and the RT was performed on 11.01.2000.
4. The complainant's 1st allegation was that there was no immediate need for RT in case of HCV positive patient. The patient could have safely survived on dialysis, for a long time. Patient was discharged on17.1.2000, but the patient remained admitted in OP-1 NMC, till 3.2.2000. The 2nd allegation was that, prior to RT, the OP should have properly investigated and followed the condition of patient's liver by proper instigations, like liver biopsy or viral load test. The RT was performed without informed consent; the doctors took patients signatures on blank pages. After RT, the patient was put on strict regime of immunosuppressive drugs. The 3rd allegation was a gross negligence on the part of hospital. The patient's 4 fingers of left hand got severely burnt (thermal injury) during the operation, but the family members were informed that patient had sustained minor burns and wound will heal shortly. OP put heavy bandage on the burnt fingers. The patient was known to be highly diabetic; even then, OP gave high doses of insulin and other medicines, which further increased the risk. Subsequently, patient developed dry gangrene; hence his fingers were amputated on 30.6.2000. Subsequent to amputation, the Bilirubin and TLC (total leukocyte count) levels started rising continuously. The liver enzymes SGOT & SGPT were also on higher side.
5. The patient was admitted in OP-1/Hospital from 19.12.2000 to 28.12.2000. The patient's tests revealed that he was suffering from Tuberculosis (TB). Dr. A. K. Raina, Chest Specialist, OP 9, was consulted. He started Tab INH-300,injection Streptomycin and Tab Mycombutol-1000. It was started in consultation with OP 3, 4 and 5. These drugs affected the liver adversely, which further worsened the condition of the patient, and he never recovered. The complainant submitted a medical journal extract i.e. Ex. CW-1/6 (collectively). In order to control Bilirubin, the OP administered SNMG injections, with numerous antibiotics and immune suppressive drugs, but there was no improvement in the patient's condition. The TLC never came within normal limits. His blood sugar was never under control during his stay in the hospital. Blood sugar was 420.6,
6. He was again admitted on 25.11.2001, for control of blood sugar. His blood sugar was 420.6 mg, Urea 71.8 mg and S. Creatinine 1.8mg. SNMC injections were stopped. He was discharged on 30.11.2000. Again, he was admitted on 7.12.2001 to 15.12.2001, and 18.12.2000 to 25.11.2001. The OP failed to diagnose, therefore, the condition of the patient deteriorated. He was again admitted on 27.12.2001 for Hyponatremia (sodium deficiency), patient further deteriorated. The level of blood urea and creatinine was abnormally high. The OP did not take any steps to cure it by dialysis. Due to Neprofeed, the patient's sugar went up to 420 mg. The patient developed fever. Thereafter, on 15.1.2002, the patient was shifted to ICCU. He was given about 24 units of plasma/blood platelets from December, 2001 to January, 2002. Ultimately, the patient expired on 27.1.2002.
7. That complainants submit that, the negligence of the OPs had resulted the death of the patient, loss of kidney of patient's wife(C-1), loss of left hand of the patient which, further jeopardized the treatment, leading to untimely death. It caused mental agony, depression, loss of income to the family of the patient, suffered huge expenses for medical treatment.
8. Therefore, the complainant filed a complaint before this Commission claimin g compensation to the tune of Rs. 42, 52,000/- along with costs. The cause of action arose on 11.1.2000 and it was continuous cause, till the date of death.
DEFENSE:
9. The OPs filed written versions and respective affidavits. OP 4, Dr. Harsh Johari filed common affidavit on behalf of OPs 1, 3 and 8. It is submitted that OP 1, Noida Medicare Centre Ltd. is established since 1992, a specialty medical centre recognized by UP Govt for Kidney Transplant . There is a team of well qualified and reputed doctors for treatment of kidney problems, hemodialysis and renal transplant (RT). The patient had willfully suppressed the medical history of past 10 years', including treatment for End Stage Renal Disease (ESRD) prior to visiting OP 1. The patient was suffering from diabetes, hypertension, hypothyroidism. He stopped taking insulin, since one year back. He was hypertensive for past 8 years and he suffered CRF for about 1 ½ year and dependent on hemodialysis in some other hospital since February, 1998. He had stopped dialysis for approximately eight months, before admission in the OP hospital. The patient initially came to OP 1, as OPD patient from 3.10.1999. Hemodialysis was performed on 4.10.1999 and 10.10.1999. Dr. Ashok Kumar, Dr. Dileep Bhalla and Dr. Sanjay Wadhwan (OP3) saw the patient on 5.10.1999 and 7.10.1999. At the time of discharge, the patient was advised for regular hemodialysis and need for RT.
10. The renal transplant was decided after detailed discussion with the patient and his attendants, including his wife. The kidney transplant was performed in January, 2000 and patient survived for two years. The cause of kidney rejection was not HCV. The patient suffered septicemia and multi-organ failure. The HCV-RNA of the patient was done on 17.12.1999, which was shown to the then treating Nephrologist Dr. Ashok Kumar Gupta, and Dr. Dilip Bhalla, a Transplant Physician, Dr. Sanjay Wadhawan and OP 4 himself. Thereafter, both the options were discussed about immediate RT or in alternative, at least 6 months Interferon treatment followed by renal transplant. Thus, OPs clearly explained the patient about HCV status and the latest recommendation. The OPs gave sufficient time of about two weeks to the patient, to decide whether, to undergo RT or not. There was sufficient time to decide or to take a second opinion, from other doctors. It was also explained about the need of additional expenses of about Rs.2.5 to 3 lakhs for HCV treatment. The patient came to OP 1 hospital with complaints of severe breathlessness and weaknesses. He was transfused two units of blood and hemodialysis was performed. Dr. Ajay Bhalla did endoscopy on 20.10.1999 as part of the testing process. The patient was suffering from Chronic Renal Failure for about two years; the decision of RT was taken after considering the various aspects, tests in consultation with specialist doctors in their respective fields. RT was done, almost, after three months. The OP 4 submitted that he has performed the renal transplant. The OPs 3, 5, 8 and 9 had no role in the operation theatre; they were not present at the time of operation.
11. The OPs admitted about the thermal injury to the patients fingers. It was treated properly, the patient was not charged for the expenses. Due to dry gangrene, the fingers were amputated. The patient was given artificial limb prosthesis at the costs of OPs. Thus the OPs took entire care to save the fingers. The OPs denied any negligence in the renal transplant surgery. The patient was treated properly before and after renal transplant. There were several causes of deterioration of patient due to drugs of TB, immunosuppressive therapy, and uncontrolled diabetes etc. Arguments:
12. We have heard the learned counsel for both the parties. The counsel for complainant, Shri Vineet Bhagat argued the matter, produced relevant medical literature to support his case. The counsel reiterated the facts narrated in the complaint and affidavit. The argument was mainly focused on act of omission by OPs. The OPs failed to perform proper investigations, before RT. Despite knowing the HCV positive status the OPs failed to perform liver biopsy to know the condition of liver. There was total lack of duty of care from OPs-1 to 4, even though, knowing about HCV Positive status, which is a contraindication for RT. The OP misguided and persuaded the patient for RT.
13. Secondly, during RT patient suffered thermal injuries to four fingers of left hand which subsequently were amputated. The OP concealed the thermal injury, as a minor one. Thirdly, the informed consent was not obtained as the doctors failed to warn the inherent risk of proposed RT, despite HCV Positive status, the survival rate if he continues to be on hemodialysis and get treatment for HCV as well. It resulted in sacrifice of kidney of patient's wife, who donated it. Due to incomplete and inaccurate information given by the OP, the patient gave the consent. Thus, the patient was unable to exercise his right to determine with free will and choice. Lastly, the breach of duty caused the death of patient. Counsel further submitted that, the OPs did not provide entire medical document to the complainant's requests made on 16.2.2002 and 19.3.2002.There was apprehension that OP might have tampered with the document
14. The learned counsel for OPs, Ms. Rachna Gupta, vehemently argued that the patient was suffering from CRF, who needs dialysis, for a long time, hence, RT will be more effective. The patient and his relatives were informed about HCV positive status, informed consent was taken prior to RT. Therefore, RT was performed after proper counseling; it was done in the interest of patient's health. Therefore, there was no negligence on the part of OPs. The second limb of argument was about the thermal burns to the patient's fingers of left hand. Counsel submitted that the burns to the fingers in the operation theatre (OT ), was accidental. The surgery was carried in winters, extreme cold, the surgery lasted for more than six hours. The electric blowers were kept at least 5 to 6 ft. away from the operating table and might be due to malfunctioning of the heaters, it was not automatically switched of and since the patient was under anaesthesia, he could not feel the heat and removed his hand. As the anaesthetist and surgeon were concentrating on the patient, the fact was unrecognised. The counsel further submitted that, the best available artificial prosthesis was provided by OP-1 to the patient's fingers. The transplanted kidney functioned perfectly, for two years. The fingers developed dry gangrene, partial amputation was performed; OPs took all necessary precautions for about 1 ½ years. Therefore, the rising level of Billirubin (Total) and TLC is in no manner connected to the amputation. On 7.7.2000, the patient was diagnosed to be having pulmonary CMV, TB and HCV Hepatitis. The patient's condition improved by anti-tubercular treatment (ATT) and his liver function tests remained stable.
15. The OP relied upon following judgments of Hon'ble Supreme Court in Martin F. D'Souza Vs. Mohd. Ishfaq, AIR 2009 SC 2049" wherein the Hon'ble Apex court, observed that:
"Simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse".
Further, it was also observed that, When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.
Counsel for OP further cited other authorities namely;
C.P. Sreekumar (Dr.) MS (Ortho) vs. S. Ramanujam (2009) 7SCC 130 Malay Kumar Ganguly vs. Dr. Sukumar Mukhereej and Ors. (2009) 9 SCC 221 FINDINGS :
16. On perusal of medical record, we have noted that the patient was a known diabetic, for more than a decade and was under treatment. He was suffering from CRF, which led to ESRD. He was on regular haemodialysis, hence the OPs advised the patient for RT. The HCV positive status was made known to the patient. The RT took place almost, after 3 months of counselling. In our opinion, there was sufficient time for the patient and his relatives to arrive at a decision, for RT. In this regard, the patient neither took second opinion from other doctors nor shown any willingness to take treatment for HCV for 6 months and thereafter RT. In this context, it will be relevant to peruse the consent given by the patient. It is reproduced as under:
"It has been brought to my notice by my doctor that I am HCV positive which may result in some complications after renal transplant. The remedy for this before renal transplant is to give Interferon injections for at least 6 months and the success rate is only 20%. There is no surety that I will be completely cured after this treatment. There may also arise some more complications after giving Interferon. It has also been brought to my notice that many HCV positive patients have been successfully operated upon and are doing well. After knowing all this I have taken the decision that I shall go for renal transplant immediately."
17. It is an admitted fact that the patient was HCV Positive and the renal transplant was performed by the OPs. The donor was the patient's wife. The sequence of events clearly go to show that the patient underwent RT on 11-01-2000 and got discharged on 03-02-2000. The amputation of four fingers of left hand was done on 09-06-2000. Thereafter, the patient was admitted in OP-1/Hospital on 26-11-2001 and 30-11-2001 for high blood sugar which was controlled. Thereafter, on 09-12-2001 the patient was admitted for vomiting, nausea and fever. Then on 02-01-2002 the patient was treated for various complications. He was admitted in ICU, kept on ventilator, but unfortunately passed away on 27-01-2002, due to septicaemia and multi organ failure.
18. Therefore, on a bare reading of the above paragraphs, it was an informed consent. We do not think that the OP have performed RT in a great hurry. The patient was comfortable after operation, remained well for six months. Thereafter, gradually became deteriorated from December 2000. His Bilirubin increased to 17.1 mg, he developed CMV infection as well as pulmonary tuberculosis. Therefore, the patient was treated by OP-9 with proper ATT regime. The Bilirubin level was improved after injection SNMC 60 ml given on alternative days. At the point of time patient developed hyponatremia (sodium depletion), it was also treated properly.
19. Life Expectancy: The medical literature on "the life expectancy of diabetic patients on dialysis" revealed that a person on dialysis would have better quality of life by RT. The treatment for ESRD is either dialysis or renal transplant. The average life of a patient on haemodialysis is much lesser than RT, especially in diabetics.
20. As per the Textbook of Diabetes (4th edition 2010 page 602) the survival with ESRD is very limited, 20-25% of individuals, with T2DM die in the 1st year of dialysis, and almost all are dead, within 4-5 years. Handbook of Dialysis therapy (4th edition 2008 page 1062), revealed that patients with ESRD and T2 DM annual mortality rate greater than 25%. The textbook of Kidney Transplantation, Principles and Practice states about survival is better after transplantation.
21. HCV and RT: Regarding HCV positive patients, according to the literature, it is said that HCV Positive patients can undergo successful RT. However, long term follow up is required. The international literature also revealed the HCV Positive status is not a contraindication for RT. It is recommended that HCV Positive patient with ESRD be allowed to make an informed choice between dialysis and transplant. The outcome to the recipient/patient is the same as to the uninfected patient.
CONCLUSION:
22. Therefore, considering the entirety, we are of the considered view that the OP performed renal transplant after informed consent. The transplanted kidney functioned properly, for two years after, RT and patient's left hand was also functioning properly, for more than 1½ years, after amputation. The other complications were treated properly by the specialist in the OP hospital. Regarding TB, OP 9 had diagnosed it properly. OP analyzed about, the risk/benefits that the patient's risk of dying of tuberculosis was probably very high, without full ATT, accordingly, advised ATT. The jaundice was probably due to disseminated TB and also there were chances of drugs induced hepatitis in addition to HCV hepatitis. Even several medical literatures clarified the pathophysiology (disease process ) of HCV- RT and the person on dialysis would have better quality of life and chances of longer survival after renal transplant.
23. The team of doctors at NMC, are qualified specialists in the field of Nephrology and Renal Transplant Surgery. They took the proper decision for RT, assessing the liver function tests. Patient with HCV can undergo renal transplant. Thus, on account of renal transplant we do not find any deficiency on the part of OPs, the treatment was, as per standard of practice, it was not a deviation from standard of practice. Our this view dovetails with the case Dr. LaxmanBalkrishna Joshi VS. Dr.Trimbak Bapu Godbole and Anr AIR 1969 SC 128. Hon'ble Supreme Court held that:
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 require: (cf. Halsbury's Laws of England 3rd ed. vol. 26 p. 17).
24. In the instant case, it is an admitted fact that the patient suffered thermal burns, which were treated properly by the doctors at NMC(OP-1). As per OP's contention, the patient was completely satisfied because the patient's left hand was functioning properly, by the use of prosthesis, after amputation. It should be borne in mind that, the patient was suffering from various health ailments; his condition went on deteriorating because of infection, septicaemia and multi-organ failure. In addition, he was on of multiple drugs therapy like immunosuppressant, ATT, anti-diabetic etc.
25. At any instance, we cannot ignore that, the patient lost his four fingers due to negligence of hospital staff i.e. OT staff. It was a gross negligence and dereliction in the duty of care. Hence, the doctrine of res ipsa loquitur is applicable. Hence, we hold the hospital liable for negligence to that extent. It was an additional trauma which patient suffered after renal transplant till his survival. Therefore, lump sum compensation of Rs.10,00,000/- will be just and proper in this case.
26. On the basis of entire discussion, we partly allow this complaint and direct the OP/hospital to pay lump sum compensation of Rs.10,00,000/- (Ten lacs) to the complainant within 2 months from the receipt of this order, otherwise it will carry interest @ 9% till its realization.
List for compliance on 10th December 2015.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER