State Consumer Disputes Redressal Commission
Master Akash vs Ministry Of Health & Family Welfare on 11 September, 2012
IN THE STATE COMMISSION:DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 11.09.2012 Complaint Case No. 7/25 Master Akash Complainant Through his mother Natural Guardian, Smt. Kavita Devi w/o Shri Virender Kumar, Qr. NO.714, Block-Q, Sewa Nagar, New Delhi-110003. Versus 1.Government of India Opposite Parties Ministry of Health & Family Welfare, Nirman Bhavan, New Delhi-110011. Through its Secretary 2. Kalawati Saran Childrens Hospital Panchkuian Road, New Delhi-110001. Through its Medical Superintendent 3. Dr. Ajay Kumar HOD Pediatric Surgery, LHMC & KSCH, Kalawati Saran Childrens Hospital, Panchkuin Road, New Delhi-110001. 4. TheBlood Bank Officer Smt. Sucheta Kripalani Hospital, New Delhi-110001. CORAM Ms. Salma Noor Member
Shri V.K. Gupta Member(Judicial)
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
V.K. Gupta (Oral)
1. This is a complaint under section 17 of the Consumer Protection Act, 1986.
2. In nutshell, the facts are that Master Akash s/o Shri Virender Kumar was admitted in the hospital at Kalawati Saran Childrens Hospital, the OP NO.2 on 12.6.98 for the operation of FUC-Diaphragmaic Hernia and at that time he was only three days old.
Prior to this appointment in the hospital of the OP No.2 for operation, the complainant was diagnosed by Dr. Ajay Kumar, the OP NO.3 in the Children Surgical OPD and thereafter all the necessary medical tests, as advised by him, were carried out in that hospital. On 13.6.98, the day of the operation, the parents of the complainant were told by Dr. Ajay Kumar, the OP No.3 to get released 50 ml. of blood for transfusion to the patient i.e. Master Akash of the Blood Group B-Positive from Blood Bank, Smt. Sucheta Kripalani Hospital, the OP No.4 vide D. No.3439 and BB No. 5023. Again 100 ml. of blood was got released from the OP No.4 for transfusion to the patient i.e. Master Akash vide D. No. 3481. In this way, a total of 1.5 unit of blood(150 ml.) was transfused to the patient Master Akash by Dr. Ajay Kumar, the OP No.3 during the said operation of the complainant neither OP No.4 nor OP No.3 did exhibit their due diligence and medical care as to ensure that the blood which was transfused, was non-reactive and non-HIV Positive while undergoing the operation of the Master Akash. Further, the OP No. 2 & 3 did not conduct any test in this regard prior to transfusion of the blood in the vein of the complainant which resulted into contamination of the blood of Master Akash. After the said operation of Master Akash, he was discharged from the hospital on 23.6.98. After the said operation, Master Akash again developed a problem of FUC-Diaphragmaic Hernia with Mal rotation Adhesive Intestinal Obstruction in which he was not accepting feeds etc. for which he was again admitted in the Pediatric Surgical Ward of the hospital on 6.8.98 in which Laprotomy was done on him by Dr. Ajay Kumar, the OP No.3 and he was discharged after one week on 14.8.98 with post-operative follow up advice to continue. Even after the said operation for his ailment continued to be remain sick and unhealthy and off and on suffered from various kind of diseases. The patient Master Akash was admitted for cough, fever, pneumonia, fast breathing etc. on 17.12.98 and was discharged from the hospital on 22.12.98. Further the complainant developed problem of fever, cough, fast breathing, pneumonia, segmental collapse with hyper inflammation etc. till February, 99 for which he was again admitted in the hospital on 27.12.98 and was discharged on 1.1.2000. Again in 2003, he developed a disease of episcleritis (a disease of eye) for which he again consulted the eye specialist of the eye OPD of the hospital on 5.4.03. X-rays of the chest, blood test etc. of the patient were taken.
However, OP No. 2 & 3 never advised the complainant to undergo for HIG positive testing either due to ignorance or due to the threat of being exposed. The ailment persisted and again in the year 2005, Master Akash complained of pain in the abdomen diffuse for which he again consulted in the OPD of the hospital on 14.09.05. Since his birth in 1998, he never remained healthy after his operation of FUC-Diaphragmaic Hernia at the hospital by the OP No.3, however, he was under regular treatment of the OP NO.2. Considering the deteriorating health of the patient, some well wisher of the complainant suggested his parents to undergo HIV positive testing of the child/complainant. The parents of the complainant decided to go for HIV testing of Master Akash at VMMC Safdarjung Hospital, New Delhi and accordingly HIV Antibody Testing was carried out of the complainant on 03.01.06, after his registration in OPD on 2.01.06. The report of the HIV testing of the complainant has confirmed AIDS vide 3.01.06 and 9.01.06 alongwith the pathological report. After the positive report of the HIV positive of the patient Master Akash, he was admitted to Ward 21 Unit I of the VMMC & Safdarjung Hospital, New Delhi on 9.01.06 for the treatment of AIDS. Master Akash after his operation on 13.6.98, never recuperated and remained unhealthy. However, some of the well wisher of the family of the complainant advised the parents to undergo for HIV positive test, in order to confirm their chances of being HIV positive. Acting on the advice of the well wisher of the family, the parents of the complainant also underwent for HIV testing at VMMC and Safdarjung Hospital, New Delhi.
The result of the patients i.e. the mother and the father of the Master Akash as to the HIV positive testing were negative. After the positive report of the HIV positive of Master Akash, he was admitted to Ward 21 Unit I of VMMC & Safdarjung Hospital on 9.01.06 for the treatment of AIDS alongwith pneumonia, oral ulceration high grade fever, cough etc. After the detailed investigation treatment for AIDS were given and after the satisfactory improvement, he was discharged from Safdarjung Hospital on 18.01.06. After confirmation of HIV positive, Master Akash is still under observation of the AIIMS Hospital. Master Akash has developed symptoms of the HIV positive only after the above said operation for his ailment conducted by Dr. Ajay Kumar, the OP NO.3 at Kalawati Saran Childrens Hospital, the OP NO.2. It is because of the transfusion of 1.5 units of the blood given by OP NO.3 and which was released by the OP NO.4. Master Akash till the operation of his ailment was not having any symptoms of the HIV positive but after the transfusion of blood during the operation of his above ailment, he developed the symptoms of the HIV positive and he is losing his weight. The chances of complete recovery of Master Akash from the AIDS HIV positive are very remote and there is every likelihood that Master Akash may not live his full life.
There is a sheer deficiency and medical negligence on the part of the OP and therefore the complainant claims Rs. 22 lakhs as compensation for mental agony, harassment and sheer suffering together with interest @ 18% p.a. and also Rs. 30,000/- as litigation cost.
3. The OP NO. 1 to 4 have filed the joint written statement and denied all the allegations.
According to them, the blood was given from the Blood Bank of the Lady Harding Medical College and outside Kalawati Saran Childrens Hospital blood transfusion was required for saving the life of infant. The Blood Bank of the Lady Harding Medical College does all necessary test for HIV and Hbs Ag and only serologically negative blood for HIV was issued to patient.
There is no negligence in transfusion of the blood inasmuch as the Blood Bank of the Lady Harding Medical College tests all blood serologically for HIV infection and only HIV negative blood is transfused so there is no question of negligence and carelessness on the part of the OP. It is further contended that the complainant deserves no relief of whatsoever nature.
4. The complainant has filed the rejoinder and further denied the averment made by the OP in their written statement and reiterated the same version as mentioned in the complaint.
5. Both the parties have filed the evidence by way of the affidavits and the documents in their support.
6. We have heard the Ld. Counsels for both parties and perused the material on record.
7. At the outset, it is very relevant to point out that the written statement has been filed by OP No. 1 to 4 but it is not signed by any one of them, however, it is signed by Addl. Standing Counsel. Even after the verification, it is signed by Kalawati Saran Childrens Hospital, the OP NO.2.
8. The Ld. Counsel for the OP very vehemently contended that there is no ,medical negligence or deficiency in service in the case in hands on the part of any OPs. On the other hand, it is very strenuously submitted by the Ld. Counsel for the complainant that admittedly 1.5 ml. blood was transfused to Master Akash without any examination and without ensuring whether such blood is contaminated or not or whether it has any positive contents.
Therefore there is sheer medical negligence on the part of the OPs.
9. 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
10. Negligence in the context of the medical profession necessarily calls for a treatment with 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 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.
11. A professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did not possess.
The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices.
A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
12. The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.
13. The Honble Supreme Court in Jacob Mathew vs. State of Punjab (2005) 6 SCC 1 has observed that The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence differs in civil and criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher 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.
14. The word gross has not been used in Section 304-A, IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be gross. The expression rash or negligent act as occurring in Section 304-A, IPC has to be read as qualified by the word `grossly.
15. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
16. Res ispa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ispa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
17. The Honble Supreme Court in V. Krishan Rao vs. Nikhil Super Speciality Hospital civil appeal No.2641 of 2010 has considered very exhaustively the case of Jacob Methew (Supra) and Indian Medical Association vs. V.P. Shantha & Others-(1995) 6 SCC 651 has held in para-47,48,49 and 50, which is reproduced below:-
In a case where negligence is evidence, the principle of res ispa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
18. On the joint prayer of both the parties counsels vide order dated 9.4.10, a reference was made for expert opinion. The following points were referred for the expert opinion.
(i) Whether the transfusion of blood to the child Master Akash was not the root cause for his post operative sufferings for various ailments specially when he was under
the regular treatment of the hospital/OP since 12.06.98?
(ii) Whether the child Master Akash contracted HIV tve/AIDS while being operated upon at the OP-Hospital Kalawati Saran Childrens Hospital, New Delhi for FUC DIAPHRAGMATIC HERNIA ON 13.06.98 during which the child was transfused 150 m.l. of blood from the Blood Bank of Lady Hardinge.
(iii) Whether the case of Master Akash is not a case of medical negligence of the OP Hospital specially when his parents(mother and father) have been confirmed HIV+Ve in the report of HIV Antibody Testing dated 06.01.2006 of VMMC & Safdarjang Hospital, New Delhi whereas the child Master Akash has been confirmed HIV + Ve in the Report of HIV Antibody Testing dated 03.01.2006 at VMMC & Safdarjang Hospital, New Delhi.
(iv) Whether the summary reports and documents concerning treatment of Master Akash in his post operative treatment at AIIMS, New Delhi and VMMC & Safdarjang Hospital is not an indicative of confirmed HIV + Ve/AIDS?
(v) Whether the certificate of issue by CGHS dated 19.12.2006 is not an indicative of the child being an HIV + Ve?
19. The case was referred to Maulana Azad Medical College for expert opinion which vide dated 25.5.10 has submitted the report by observing as under;
Observations:
At first instance, the ailments and sufferings of Master Akash during the years 1998-99 do not appear unusual inasmuch as the reparatory tract infections in very small children are well known to occur with this frequency. The ailments and sufferings, if any, over the ensuing 3 years are not known. Then in year 2005, he has clinical features to suspect and diagnose HIV infection.
Under the circumstances provided, it is not possible to exclude the possibility of attributing some of the later ailments on follow-up to the transfusion of blood to the child Master Akash.
2. Contaminated blood is a potential source for transmission of HIV. In the scenario provided, the possibility of contracting HIV from blood or other blood-contaminated appliances cannot be excluded in the case of Master Akash.
The discharge summary(on page 33) also refers to a second blood transfusion at age of 2 months? the details of this or any other potential source may also be looked into. Often, there is a lag between contracting HIV infection and its clinical diagnosis.
The question has been raised as to whether the case of Master Akash is not a case of medical negligence. Blood transfusion is a well documented source for transmission of HIV infection since 1985, the risk paralleling the prevalence of HIV amongst the donors in a given society. The screening of blood has drastically reduced this risk. The risk of transmission of HIV from blood has been coming down with time since the discovery of HIV and may also differ from place to place. The estimates of risk vary from 2% in Kenya to as low as 1 in 2,135,000 in USA with an overall accepted figure of 1 in 200,000. Further, even with the best of screening, it is not possible to exclude the small risk for transmission of known or unknown infections including HIV through the transfused blood.
The screening for HIV infection was made mandatory for every unit of blood collected for transfusion in Delhi, India since 1989(Indian Journal of Pathol Microbiol. 39(2):139-142-copy enclosed).
Thus there was adequate time unto 1996 for the HIV screening, inter alia, of blood to be a part and parcel of blood banking practice and to adhere to the then prevailing policy for the testing and disposal of blood.
So long as the stated and prevailing policy on the mandatory screening for HIV was adhered to, it cannot be deemed that there is any medical negligence. Not adhering to it will tantamount to medical negligence.
20. The expert opinion of the Medical Board of the MAMC goes to show that it was incumbent on the part of the doctor who transfused the blood to a patient, screening for HIV should be made, and if it is done, there is no medical negligence. However, not adhering to it, will tantamount to medical negligence. In the case in hand 1.5 ml. blood was transfused by Dr. Ajay Kumar, the OP NO.3. The defence of the OP is that the blood was brought from the Blood Bank Smt. Sucheta Kripalani Hospital, the OP NO.4 and it was tested that there was no HIV infection in the said blood. The OP has not filed any document to show that such a test was even conducted by Smt. Sucheta Kripalani Hospital and whether such hospital has submitted a report or the service that the said blood which is being transfused to Master Akash does not contain any HIV infection. It is very strange that Dr. Ajay Kumar, the OP No.3 has not filed any affidavit to show that such a certificate or the test has been made by Smt. Sucheta Kripalani Hospital. Further there is nothing on material record to show that Dr. Ajay Kumar, OP NO.3 came to the conclusion that the blood does not have any infection or contaminated part.
It was the bound down duty of Dr. Ajay Kumar, the OP NO.3 and OP No.2 to examine the blood in order to come to the certaintity that it does not contain any HIV infection contents. The transfusion of the blood to the patient Master Akash is not in dispute. Obviously, there is a sheer medical negligence on the part of the OP NO.2 & 3 in not examining and ensuring that the blood i.e. 1.5 ml. does not contain any HIV infection. The complainant has filed the ample evidence that on account of contaminated blood, contains the HIV infection, Master Akashs ailment had occurred and thus he became a patient of HIV positive. This ailment cannot be inherited from the patients inasmuch as there are ample document to show that the mother and the father of Master Akash were also medically examined for HIV positive test. The reports submitted by the complainant in this respect shows that there is no HIV infection in the blood of the patients. It has been very clearly established by the complainant on the basis of the documentary evidence that there is sheer medical negligence on the part of the OP NO. 2 & 3.
21. The complainant has claimed a compensation of Rs. 22 lakh and also Rs. 30,000/- as the litigation expenses. The material on record goes to show that initially the patient had ailment called FUC-of Diaphragmatic Hernia and his operation was conducted on 12.6.98 when he was 3 days old and on account of the medical negligence, Master Akash who is now 8 years old has the ailment of the HIV. It is a matter of common observation that it is a very serious disease and a person who is having this ailment cannot survive long. Taking into consideration the entire facts and circumstances of the case, we quantify the amount of compensation as 10 lakhs inclusive the medical expenses incurred by the complainant in the ailment of Master Akash and also the litigation cost.
22. We hereby direct that OP No. 2 & 3 shall pay Rs. 10,00,000/-(Ten Lakhs) as a compensation for mental agony, harassment to the complainant inclusive of litigation charges and it shall be their joint and several liability.
(Salma Noor) Member (V.K. Gupta) Member(Judicial) ysc