State Consumer Disputes Redressal Commission
Kamla Devi @ Kamla Rani vs The Medical Superintendent, on 19 December, 2006
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision : 19-12-2006 Complaint No. C-266/97 Smt. Kamla Devi @ Kamla Rani - Complainant W/o Shri Ranjeet Singh, R/o E-4, Satyawati Nagar, Delhi-110052. Verses 1. The Medical Superintendent, - Opposite Party No.1 Sunder Lal Jain Hospital,, Through Ashok Vihar, Mr. Ankur Mittal, Phase-III, Delhi-110052. Advocate. 2. Dr. R.K. Jain Opposite Party No.2 3. Dr. S. Mehta Opposite Party No.3 Both Doctors in Sunder Lal Jain Hospital, Ashok Vihar, Delhi-52. 4. New India Assurance Co. Ltd. Opposite Party No.4 HQ Gulab Bhawan, Through 6-B.S. Zafar Marg, Mr. Bijender Tanwar & New Delhi. Salil Paul, Advocates. CORAM: Justice J.D. Kapoor, . President Mr Mahesh Chandra . Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. to be referred to the Reporter of not ?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) On account of medical negligence of the OPs in leaving gauze/F.B.(MOP) in the operative wound of the complainant, a compensation of Rs. 17 lacs with 18% interest p.a. has been sought through this complaint.
2. Succinctly put, the allegations are that the complainant who was an old lady of 69 years was suffering from severe pain in abdomen and vomiting. She was under the treatment of Dr. S. Mehta and Dr. R.K. Jain of Sunder Lal Jain Hospital, Ashok Vihar, Phase-III, Delhi. She was diagnosed to be suffering from burst abdomen and was advised surgery by the above named doctors. She was admitted in the said hospital on 13.11.95 and was operated upon on 15.11.95 by Dr. S. Mehta and Dr. R.K. Jain and was thereafter discharged on 20.11.95.
After the said operation complainant showed no sign of improvement and was in severe pain. On the advice of Dr. Dr. S. Mehta and Dr. R.K. Jain she was readmitted on 23.11.95 in the said hospital and was re-operated for burst abdomen on 24.11.95 and was discharged on 4.12.95. However, after re-operation the condition of the complainant deteriorated. She continued suffering from severe pain in abdomen and became weak and lost consciousness. On 15.1.96, she was advised another operation by Dr. R.K. Jain.
He, however, did not disclose the reason for continuation of pain despite repeated queries by her and her family members.
3. Since she no longer had faith in the said hospital, she on the advice of her family, went to Bombay on 18.1.96 and was admitted in Ashish Maternity and Nursing Home on the same day. She was diagnosed to be having Gauze/F.B.(MOP) in her operative wound.
The complainant was operated upon for the removal of the said Gauze/F.B.(MOP) and was thereafter discharged on 25.1.96 from the said hospital. The complainant was informed by Dr. Bhansali Hemant of Ashish Maternity and Nursing Home that the said MOP had caused infection in the body of the complainant which was dangerous to the life and could have proved fatal.
4. That it was apparent that Dr. S. Mehta and Dr. R.K. Jain conducted the operation rashly and negligently and had without due care and precaution left a Gauze/F.B.(MOP) in the abdomen of the complainant. She had to suffer lot of pain and agony due to the said rash, negligent act of Dr. S. Mehta and Dr. R.K. Jain and had to undergo the trauma of being operated again and again. In fact, the operations have even effected the vision of the complainant.
5. While controverting the allegations, OPs averred that the OP hospital(Sunder Lal Jain Hospital) is a well equipped establishment providing treatment to patients seeking admission and those visiting the hospital in OPD and for treatment. Complainant visited the hospital for treatment in emergency on 13.11.95, complaining non-passage of flatus and for the last 3 days, distention of abdomen and vomiting for the same period. After securing clinical examination results, X-ray and the condition of the patient not improving with conservative treatment, was advised surgery on 15.11.95, after obtaining due consent of relations visiting and attending to the patient. In the operation, abdomen was opened by paramedian incision. The stricture in the proxymul ileum was found which was made good by performing the stricturoplasty. The patient was discharged from the hospital on 20.11.95.
6. That the allegation of presence of foreign body (gauze towel) in the stomach(abdomen) is false. The abdomen of the patient was opened at the first surgery performed on 15.11.95. X-ray report after the operation(original) did not suggest presence of any foreign body or other abnormality. In the second surgery performed on 23.11.95 the abdomen was not opened and only wound was resutured. This aspect is well demonstrated by the photographs filed by complainant when read with the statement given by Dr. S. Bhansali thereon. The doctor noticed strands and fibres of gauze in bare screening/examination of the wound. He found gauze piece/mop in the wound again in his visual examination. If that be so, the claim of the doctor making investigation by using X-ray and haematological tests besides adopting diagnostic method by using Video Laproscope for identifying/locating the presence of foreign body/gauze piece in the wound is self-contradictory. The whole claim of the doctor is demonstrable as false, fabrication and a pure concoction. The doctor has claimed taking out gauze piece from the abdomen as demonstrated by the photographs relied by the complainant without the patient undergoing anaesthesia and with doctor not using gloves, the basic mandatory requirements for performing the nature of operation claimed by the said doctor.
7. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner.
In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para
8.02)
8. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
9. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess.
The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he 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.(4)
The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
10. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done 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.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
11. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
12. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
13. As is apparent, the deficiency in service by service provider like hospital is of varied kinds. In common parlance, medical negligence is understood as negligence of the treating doctor as to the line of his treatment being not as per medical procedure, or deficiency or negligence in operating the patient causing complications of various kinds. Similarly, there is medical negligence on the part of the doctor who undertakes the treatment of a patient for a disease which he is not competent to deal with or does a thing which he is not required to do and does not do a thing which he is required to do. However, the definition of deficiency provided by Sec. 2(1)(g) of the Consumer Protection Act, 1986 is so wide that it also takes in its fold the administrative deficiencies of the hospital. For instance, not providing blood to a patient who could die if blood transfusion is delayed for some time or not providing oxygen cylinder for want of which the patient is likely to suffer, some time fatal, or admitting the patient in the Nursing Home or hospital knowing it well that the doctors who are specialized and skilled for treating the patient are not available for some reason or the other. Sometimes, sanitary conditions of the hospital are so bad that it contributes to the worsening condition of the patient. Sometimes, the wherewithal and paraphernalia of the hospital who have very high reputation and claims themselves to be a five star or seven star hospital are not adequate.
14. Even if we accept the version of the OP that the X-ray report after the first operation did not show any presence of foreign body or any other abnormality and in the second surgery abdomen was not opened and wound was restitched still the report of Dr. Bansali of Bombay and the photographs filed by the complainant leave no manner of doubt if at all there was no gauze towel but there were gauze piece/mop left in the abdomen during the first operation as some strands and fibres of gauze were visible on bare screening/examination of the wound.
15. The contention of the counsel for OP that the doctor removed the gauze without administering the general anesthesia and without using gloves which is apparent from the photograph, which was basic mandatory requirement for performing the nature of operation claimed by the said doctor holds no water as it was after the operation conducted by the said doctor, Dr. Bhansali that the complainant became all right and till then she was suffering severe pain time and again and when she again approached the OP-Doctor he asked for third operation and since she had lost faith in the OP-Doctor she had to rush to Bombay.
16. There is no doubt that the doctors who operated upon the complainant were well qualified and had the skill to operate the complainant for the disease she was suffering from. But in this case the negligence is apparent because during the operation may be that the operating doctors might have left the case to junior doctors for stitching the wound the strands and fibres of gauze might have been left in the abdomen of the complainant. Had it not been so the complainant would not have suffered such a pain after the successful first operation and even after the second operation. It was only on third operation done by the Bombay Hospital who removed these strands and fibres of gauze/mop that the complainant became alright.
17. However, in the given facts and circumstances of the case as well as the strands and fibres of gauze having been found in the abdomen of the complainant by an independent doctor who had neither professional rivalry nor enmity with the OPs, we deem that lumpsum compensation of Rs. 50,000/- would meet the ends of justice.
18. OPs shall make the payment within one month of receipt of this order to the complainant.
19. Complaint is disposed of in aforesaid terms.
20. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to record room.
21. Announced on 19-12-2006.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member jj