National Consumer Disputes Redressal
Rajmal Singh & Ors. vs Dr. Madhu Gupta & Ors. on 8 May, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION No. 207 OF 2000 1. Rajmal Singh (LR) 2. Varun Singh, Minor Through Father Mr. Rajmal Singh 3. Deepak Singh, Minor Through Father Mr. Rajmal Singh 4. Amit Singh Through Father Mr. Rajmal Singh 5. Ankur Singh Through Father Mr. Rajmal Singh 6. Gaurav Singh, Minor Through Father Mr. Rajmal Singh All Reside at: SC-158, Shastri Nagar Ghaziabad, U. P. .. Complainants Versus 1. Dr. Madhu Gupta R/o SE-12, Shastri Nagar Ghaziabad 2. Navjeevan Nursing Home R/o SE-12, Shastri Nagar Ghaziabad 3. Dr. Atul Aggarwal R/o R-3/4, Raj Nagar, Ghaziabad 201 002 4. Shivam Hospital & Heart Centre, R/o R-3/4, Raj Nagar, Ghaziabad-201 002 ... Opposite parties BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For the Complainant : Mr. Abhay Anand Jena, Advocate For OP-1 & 2 : Ms. Kumud L. Das, Advocate Mr. Manoj Singh, Advocate For OP-3 & 4 : Mr. M. C. Gupta, Advocate PRONOUNCED ON 08th MAY, 2014 ORDER
PER DR. S.M. KANTIKAR, MEMBER
1. Surgeons/Gynaecologists take utmost interest and care of the patients suffering from abdominal and pelvic diseases. They are aware of the different varieties of atypical hernias and know that unusual symptoms may denote an early phase of herniosis. Otherwise, the old maxim regarding incomplete knowledge will become operative .
What the eye doesn't see, and the mind doesn't know, does not exist. 2. The Complaint was filed in the year 2002, by Rajmal Singh, Complainant-1 and his 5 minor sons, as Complainant Nos.- 2 to 6. It was alleged that due to negligence of the Dr. Madhu, OP-1, of Navjeevan Hospital, OP-2 and Dr. Atul Aggarwal, OP-3, of Shivam Hospital, OP-4, Smt. Krishna Singh, wife of Complainant-1 died. The complainant-1 died during the pendency of this case, hence, the LRs are brought on record.
The Facts:
3. Mrs. Krishna Singh, (herein referred to as, Patient) was suffering from abdominal pain, she was told by some doctors about the removal of uterus. Hence, in May 1999, she visited Dr. Madhu Gupta (the OP-1) who advised her not to worry and that there was no need, for the present, for removal of uterus (Hysterectomy) and advised medication.
Thereafter, again on 14.08.1999 she, with her son visited OP-1 at Navjeevan Hospital (OP2) due to severe stomach pain. After performing ultrasound of lower abdominal at Shivam Nursing Home OP-1, reported as possibility of Twisted Ovarian mass cannot be entirely ruled out sonographically and needs to be investigated further (Annexure -3). The OP-1 admitted her for observations, administered painkillers, IV fluids and discharged her on the same evening. Severe pain again started at 1.00 AM of 15.08.1999, the patient was again admitted to OP-2 at 6 am. The OP-1, on examination insisted to perform urgent surgery, but the Complainant no.1 did not consent to the same. He left his wife in the care of OP-1, along with his minor son, and went to Meerut to bring his mother-in-law, but on his return in the evening, he was surprised to know that OP-1 had operated his wife at 2 PM, who, landed her in an extremely serious condition. The OP-1, in collusion with OP-3, performed operation, without anybodys consent, it was performed in the Labour Room at OP-2, without having any proper facilities, hence, developed septicemia and became more critical. Hence, on the same evening, at 11 p.m., the patient was shifted to ICU at Shivam Hospital, the OP-4. The discharge slip of OP-2 is Annexure-5. She was in ICU, kept on ventilator in OP-4, from 16.8.1999 to 10.09.1999. As, there was no improvement at OP- 4, the complainant no.1, shifted his wife to Batra Hospital, New Delhi on 10.9.1999. Unfortunately, after 10 days, on 20.9.1999, she expired due to septicemia. The death summary dated 20.9.1999 (Annexure -6) confirmed that there was overwhelming sepsis with MODS. The Complainant No. 1, sought entire medical records from OP- 1, through his letter dated 14.02.2000 (Annexure 7), but there was no response. Complainant alleged negligence on the OP-1 to OP-4, that the death of his wife was due to the surgery which was done unnecessarily, the diagnosis was wrong; operation was performed in labour room, without any consent. There was imperfection, shortcoming and inadequacy in nature and performance of operation and also in post-operative care. Complainant filed a complaint before this commission against the OPs and prayed to fix the contractual and tortuous liability, jointly and severally. Complainant prayed for compensation of Rs.24,79,453/- as detailed in Annexure 8, along with interest @ 24% per annum, from the date of filing of this complaint. Also, prayed for interim directions to produce medical records and to appoint a local commissioner to examine labour room of OP-2.
Defence:
4. The Opposite parties doctors OP-1 and OP-3 resisted the complaint, filed their versions and affidavit evidences. They have denied any negligence or lapses on their part during diagnosis, operation and post-operative management. The death occurred due to septicemia after about 1 month at Batra Hospital, hence they should not be held liable, and prayed for dismissal of complaint.
5. In the affidavit evidence of OP-1 Dr. Madhu Gupta, submitted that, the patient was examined by her in the month of May 1999 during consultation. The patient had got herself examined elsewhere, and produced 2-3 ultra sound reports and on OPD papers of other doctors advised her hysterectomy for a tumor in the uterus. The OP-1, carefully examined the patient, which revealed that the patient had a small mass in the left fornix (ovarian cyst) with normal size uterus. Hence, OP-1 advised her of no necessity for any surgery, immediately, however cautioned her that, she may have to undergo an operation in case the size of the ovarian cyst increases or if there is any twisting of the cyst or if there arises any menstrual problem leading to acute pain. On 14.08.1999, she had acute abdominal pain; her husband brought her to OP-1. After examination, OP-1 treated her by IV fluids and by analgesics and discharged her on same day.
Since the patient was not in a condition to move, a portable ultrasound machine from Shivam Ultrasound Centre was arranged .The ultrasound was performed and it revealed, that the possibility of Twisted Ovarian mass cannot be entirely ruled out sonographically and needs to be investigated further (Annexure -3).
6. Again, on the next day, i.e. 15.08.1999, patients husband brought her to OP-2, nursing home, at 6 am in serious condition, with complaints of severe abdominal pain, sweating and vomiting. The patient and her husband insisted the OP-1 to do surgery to relive her pain. Thereafter, her husband without botheration, left her, all alone, in the nursing home, under the care and custody of OP-1 at OP-2. Meanwhile, OP-1 carried out all necessary investigations, blood tests and thorough physical examination of the patient. Despite painkillers and intra venous fluids, condition of the patient was not stabilizing and she continued to be in deep pain, agony. OP-1 sought assistance of OP-3, after going through previous history and USG report; they arrived at a conclusion, that the patient had a twisted ovarian cyst, which warranted for an emergency laparotomy operation. As, further delay could prove fatal for the patient, the OP-1 and OP-3, took a bonafide decision and proceeded for the surgery, without waiting for the relatives to give their consent. According to OPs, they have acted, as per medical ethics, hence no negligence. OP-1 and OP-3 submitted their clinical and operative findings, in their affidavit, produced the hospital records.
7. OP 1 and 3 submitted that, while performing the operation, it was found that the patient had a strangulated hernia. Mere physical examination or by carrying the investigatory tests, it was not possible, for OP-1 or for any other qualified medical practitioner, to have detected and diagnosed a strangulated hernia. On further examination, it was aggravating in nature, which demanded emergent care, therefore, the hernia was cured and the said operation was performed by OP-3, who is a qualified General Surgeon, duly experienced and competent to perform such emergency operations. Therefore, it was farsightedness and bonafide attempt by the OPs, which saved valuable time. The operation was successfully performed; the condition of the patient was improved, after the operation. Some post-operative complications are normal and do take place, generally.
8. OP-1 submitted that during post-operative stage, patient had some respiratory discomfort, for which, she was provided oxygen support. However, OP-1 and OP-3, after clinical assessment, suspected that she may land up in endo-toxic shock and associated complications. Therefore, the patient was advised to be shifted to Shivam Hospital and Heart Centre on 16.08.1999, at 8.00 p.m., for further post-operative care and treatment. Hence, on the same evening, at 11 pm, the patient was shifted to ICU at the Shivam Hospital, the OP-4, and in ICU, she was kept on ventilator and her treatment was continued up to 10.09.1999. However, on 10.09.1999, at the request of the Complainant/husband, the patient was discharged from the Shivam Hospital; however, the patient and the Complainant were duly explained of the consequences of shifting her to another hospital. Thereafter, her husband shifted her to Batra Hospital, wherein she died on 20.09.1999. Hence, OP-1 & 3 submitted that there was no nexus between the performance of the operation by them and the death of the patient at Batra Hospital. At the Shivam Heart Care Center (OP-4), the patient had shown signs of improvement, and was able to perform all her normal activities, on her own. The patient had not expired due to septicemia, resulting from the operation, performed on 15.08.1999, but expired, after a long gap, of more than a month, from the date of the operation, due to multiple causes.
9. The OP-1 further submitted that all the treatment, as detailed above, was offered by her, at free of cost and on humanitarian grounds. The OP-1 further submitted that her nursing home (OP-2), has well, past record of successfully performing various minor and major operations. Therefore, there is no negligence by the OP-1 and OP-3, in treating the patient and during the postoperative care.
ARGUMENTS:
10. We have heard the arguments, vehemently advanced by the Counsel for both the parties. The counsel for complainant stressed the point that, The OP 1 has conducted the operation, without consent, which resulted in septicemia and death, was due to consequences of unhygienic hospital/labour room conditions of OP-2. The OPs are negligent, who have not followed the standards of medical practice. The counsel for the complainant brought our attention to the letterhead of OP-2 (Annexure 4/Ex.CW1/2) which describes OP-2, as a Centre of family planning procedures. Also, submitted few medical literatures on the subject of Diagnosis of Incision Hernia, the Septicemia shock. The Counsel for the Complainant relied upon few Judgments of Honble Supreme Court, which are as follows:
a) V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr (2010) 5 SCC 513.
b) Cipla Limited Vs. Commissioner of Central Excise, Bangalore (2010) 5 SCC 534.
c) Ramesh Chandra Agrawal Vs. Regency Hospital Limited & Anr (2009) 9 SCC 709.
d) PGIMER Vs. Jaspal Singh And Others (2009) 7 SCC 330.
e) Savita Garg (Smt.) Vs. Director, National Heart Institute (2004) 8 SCC 56.
11. The counsel for the OP-1 vehemently argued that the OP-2/Navjeevan Hospital has got good reputation, fully equipped and was having facilities to conduct major and minor surgeries. Hence, totally denied that the operation was performed in the labour room. The Counsel brought our attention to the office copy, having performed operations, from July 1992 to December 1999; (Exhibit OP.1/3). He argued that both the OPs acted as per standards of medical practice, during the course of diagnosis, operation and follow up. Hence, there was no negligence. Arguments were further advanced on the point of No Consent. The counsel submitted that it was due to the careless attitude of the husband of patient, who left her in the hands of OP-1, without any attendant/family member. When, the condition of the patient critically aggravated, the OPs performed the emergency exploratory laparotomy operation, without waiting for Consent. It was done, in good faith of the patient and to protect her life. It was performed for therapeutic and diagnostic purpose. During surgery, it was found that the patient had strangulated hernia, which was not possible to diagnose earlier physical examination or by any other investigations or with the symptoms of the patient. The hernia was repaired by OP-3 with due care and precautions. Counsel submitted that due to the operation patient was saved from the pre-operative shock.
12. He further argued and denied that the said operation was a cause for Septicemia, which ultimately resulted into the death of the patient/deceased. There is no nexus between the performance of the operation and the death of the patient. In fact, the patient unfortunately expired, after a long gap, after performance of the operation due to multiple causes. The Counsel further contended that, her condition might have deteriorated further at the Batra Hospital, who failed to take proper care of the patient, hence developed the fatal conditions, like Pyopneumothorax, ARDS and MODF. It was the Complainant/Husband of patient who acted in collusion with the Batra Hospital. The Batra Hospital has not been impleaded as a party, who, in order to hide their own acts of negligence and misconducts. Hence, OPs could not be held responsible.
13. To prove his contentions ,the counsel for OPs brought our attention to Dr. Kadams Expert opinion (Annexure R-2) dated 6.2.2012, produced an extract from Bailey and Loves Text book of Surgery, 12th edition, page 1078 and Farquahrsons Textbook of Operative Surgery(Annexure 4). He relied upon several judgments of Honble Supreme Court namely;
i.
State of Punjab Vs. Raj Rani (2005) 7 SCC
22. ii.
State of Punjab Vs. Shiv Ram (2005) 7 SCC
1. iii.
INS. Malhotra Vs. Dr. Prabha Manchanda (2008) 4 SCC 705.
iv.
Martin F DSouza Vs. Md. Ishfaq (2009) 3 SCC 1.
v.
Samira Kohli Vs. Dr. Prabha Manchanda (2008) 2 SCC 1.
vi.
C. P. Sreekumar Vs. S. Ramanujan (2009) 7 SCC 130.
vii.
Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1
14. The counsel for OPs further submitted that, the Complainant No. 1 passed away on 13.08.2006, without giving any evidence in the case, his affidavit only, is on record. The affidavit of Complainant No. 2, who was minor at the time of the incident, is a mere narration of facts, as already stated in Complaint. Therefore, no allegation in the complaint has been proved. The Complainant No. 2 has no personal knowledge of the averments or allegations made in the complaint. His affidavit of evidence is based on mere hearsay, which ought not to be considered at all. The evidence of OPs has gone un-rebutted. Hence, prayed for dismissal of the complaint.
Findings and Discussion:
15. We have perused the affidavit evidences on file, the hospital records like case sheet, discharge summaries, nursing notes, the opinion given by one, Dr. Kadam and the relevant medical literatures, submitted by the parties. It is worth to understand the sequence of events in this case which will lead us towards a conclusion. We have carefully perused the affidavit of OP-1 & 3 and the indoor Patient Record Slip of OP-2 (pages 1 to 9) submitted by OP-2. The clinical notes written by OP-1 are reproduced as:
On Date 14.08.1999 3 pm Has come with small child, c/s severe pain lower abd-2 hrs. O/E: Marked tachycardia, Sweating ++.
P/A:
Tenderness all over the abdomen.BS +,No rigidity PV: Uterus size not made out, Tenderness on exam.
Diagnosis: ? Torsion of ovarian cyst.
Adv: Injection Diclonac , IM stat , to be kept under observation.
She has given IV medications, adv urgent USG abdomen.
In the evening discharged at 6 PM on request, and asked her to come if pain recurs.
On Date 15.8.1999, 6 AM:
Readmitted. C/o severe pain, vomiting for 2 hrs. O/E: Sweating +++, Dehydration, Pulse 120/min,BP-110/80.
P/A: Tenderness over whole abdomen. Bowel sounds +;
Heart & Lungs:NAD PV: same as on 14.08 Provisional Diagnosis: Torsion Ovarian Cyst xxxxxx. Adv inj fortwin ,Phanargan,perinorm and aciloc, started IV Ampilox,Garramycin. Blood investigations advisied..xxxx 10 am:
Continuous bouts of pain and vomiting.
Adv: Laparotomy after lab reports, relatives to be informed and Consent.
At 2 PM: Laparotomy done under spinal anesthesia.
Anesthetist: Dr. Ajay Agarwal Surgeon: Dr. Madhu Gupta and Dr. Atul Agarwal.
Abdomen was opened by lower mid-line incision. On exploration, it was found there was hernia the bowel contents of which were discolored and hyperemic. Bowels observed for viability. Then those bowels were repo-sited back in the abdominal cavity and herniorraphy done.
Catheterization and Rhyles tube.
16. After the operation, the patient was put on higher antibiotics, pain killers, with proper dosage, and maintained the nursing charts for pulse, BP, intake/output etc. At 5.30 : BP- 80/60, Pulse 140/min and dyspnea.
Urine output was nil.
Patients condition remained same, till 10 pm, 11 P.M. : Patient being shifted to Shivram Hospital for better intensive care.
17. It is pertinent to note from the clinical and operative notes as stated supra, the OPs came to know about existence of Strangulated Incisional Hernia during operation only. It was not a case of torsion of ovarian cyst. During final arguments, along with the counsel for OPs, the OP-1 and 3 were also present in person, to assist him and the Bench. To get more clarification on the diagnosis, the Bench posed a question to OP-3 surgeon, as under:-
i) Whether, there is any difficulty in diagnosing case of Hernia Clinically, especially, Strangulated Incisional Hernia?
ii) Whether, a normal, reasonable MBBS doctor/Gynecologist /Surgeon can miss to diagnose hernia and Torsion ovarian cyst?
The OP-3 answered: It is commonly difficult to diagnose clinically, the Strangulated Hernia.
18. We have perused the written arguments submitted by the OPs, para (h), which is relevant, reproduced as below:
Laparotomy revealed that the patient had a strangulated hernia, which could not be detected either by physical examination or by investigatory tests. It is possible that hernia goes undetected on physical examination. Laparotomy is thus an investigatory as well as curative method, and exactly determines the cause of abdominal pains We are not convinced, but rather surprised by such submissions made by OP-1 & 3 and their counsel. In addition, it is surprising and beyond our imagination that How, a qualified Sonologist has failed to diagnose, Hernia? his USG report dated 14.08.2000, is also erroneous one. It appears that mind of OP-1 was a prejudiced, hence she repeatedly diagnosed the patient as, Torsion Ovarian Cyst instead of Strangulated Hernia.
Medical Literature-Diagnosis of Hernia:
19. To ascertain, whether the diagnosis of incisional/ strangulated hernia is difficult, we have referred to standard medical books on operative surgery, and medical literatures,. The relevant extracts are reproduced below:
HERNIASigns and Symptoms A hernia is the protrusion of an organ, organic part, or other bodily structure, through the wall that usually contains it.
Most hernias are diagnosed by the presence of a bulge in the abdominal wall. A physical change occurs in a patient's habitus. These persons usually have little discomfort or pain, unless the hernia is incarcerated or strangulated. However, a close review of their history will reveal that many persons with hernia have experienced vague pain or discomfort, particularly with physical activity.
Diagnosing an Incisional Hernia Incisional hernias happen after an abdominal surgery and may seem to appear and disappear, which is referred to as a "reducible" hernia. The hernia may not be noticeable, unless the patient is involved in an activity that increases abdominal pressure, such as coughing, sneezing, pushing to have a bowel movement, or lifting a heavy object.
The visibility of a hernia makes it easily diagnosable, often requiring no testing outside of a physical examination by a physician. The physician may request that you cough or bear down in order to see the hernia while it is "out".
Routine testing can be done to determine which area of the body is pushing through the muscle. If the hernia is large enough to allow more than the peritoneum to bulge through, testing may be required.
When is, Incisional Hernia, an Emergency?
A hernia that gets stuck in the obstructed position is referred to as an incarcerated hernia. While an incarcerated hernia may not be an emergency, medical care should be sought, as it can become an emergency, quickly.
20. Thus, it is clear that the incisional strangulated hernia is easily diagnosable by the patients symptoms and signs. At, first instance, in the month of May 1999, the patient was examined by OP-1, having acute abdominal pain. Again, on 14.08.1999, patient was presented with acute abdomen with sweating and vomiting. She has relied entirely upon the USG report. Even, by Per vaginal (PV) examination, she concluded as a case of torsioned ovarian cyst. Hence, it is a case of failure to diagnose/wrong diagnosis. It is pertinent to note that, at the first instance itself, in May 1999, the patients abdominal pain was not properly assessed by OP-1. There might be possibility of incisional obstructed hernia at that time. Subsequently, there was recurrence on 14.08.2000, which further progressed to obstructive/ incarcerated hernia and finally presented as Strangulation, on 14-15.08.2000 leading an emergency situation.
21. We do not agree with the submissions made by OP-3 Surgeon, that, the diagnosis of hernia is difficult. It is not a prudent submission. In-fact, as per the literature (supra), it is a spot diagnosis, an ordinary doctor (Surgeon or Gynecologist) can diagnose, without any difficulty. His submission appears to support the OP-1 whose diagnosis was wrong. Hence, it is a deficiency in service.
22. It is further surprising to note that the OP- 1 & 3 have not adopted a standard surgical management in the case of Strangulated hernia. The operative notes and in affidavit it clearly mentioned that;
On exploration, it was found there was hernia the bowel contents of which were discolored and hyperemic. Bowels observed for viability. Then those bowels were repo-sited back in the abdominal cavity and herniorraphy done.
23. We have also perused the medical text, Annexure R/3 produced by the OP, about Strangulated Hernia. Strangulated Hernias, a hernia becomes strangulated when the blood-supply of its contents is seriously impaired, rendering gangrene imminent. Gangrene may occur as early as five or six hours after the onset of the first symptoms of strangulation.
24. To know more about the Surgical Management of Strangulated Hernia, we have referred the Farquharson's Textbook of Operative General Surgery, Sabiston Text Book of Surgery, hernia, fourth edition, J.B. Lippin Cott Co., Chapter 17- The classic signs of strangulation are continuous abdominal pain, tachycardia, fever and lack of bowel sounds, does not rule out the possibility of vascular compromise. Although strangulated hernias are uncommon, they are the most important type of hernia because of their high morbidity and mortality risk. Lack of blood supply results rapidly in gangrene (necrosis) because the ischemia usually is acute and local in nature. The bowel appears dark blue, green, or black. At this stage, restoration of blood flow cannot salvage the intestine, because of tissue death. The mucosal barrier to bacterial invasion breaks down, allowing gram-negative aerobic and anaerobic bacteria and endotoxin to invade tissue and blood. Segments of intestine that are returned to the abdomen in this condition usually perforate within 48 hours. This may occur spontaneously, resulting in spontaneous reduction followed by diffuse. The presence of abscess or intra-abdominal infection, necrotic tissue, or infarcted bowel may lead to bacterial translocation, endo-toxemia with systematic sepsis, or frank septic shock.
There are four goals for surgery for strangulated hernia:
1) To remove gangrenous tissue
2) To prevent further sepsis
3) To relieve obstruction
4) To repair the hernia defect.
Accordingly, the line of treatment and surgery should be very specific, if the loops are ischemic, proper assessment for viability is necessary, then the, loops be pushed in abdomen. If there is gangrene, resection of gangrenous part of intestine and followed by proper anastomosis, is the standard procedure.
But, in the instant case, the medical records on file did not show operative details, the procedure, details of assessment of viability.
25. Let us turn to the point of The importance of obtaining informed consent.
OPs admitted that the consent for operation was not taken in this present case, because of emergency. Counsel for OPs argued that, it was a case of an emergency; also at that time, the complainant-1(husband of patient) was not present and not traceable. The OPs performed operation to save the life of patient. Such arguments are bereft of merits. The medical records show that, OP-1, examined the patient at 10 am, and noted that, the patient had Continuous bouts of pain and vomiting. She advised for Laparotomy after lab reports, relatives to be informed and Consent.
26. The operation was conducted at 2 pm. There was sufficient time of 4 hours, in between. The patient was conscious and she herself was able to give consent. Therefore, in our view, the OPs failed to take the consent, it is a per se negligence. We place reliance upon Samira Kohlis Case, in which the Honble Supreme Court dealt extensively on the subject of Consent. Similarly, in this case, the patient was neither a minor nor mentally challenged or incapacitated. As the patient was a conscious and competent adult, there was no question of waiting for her husband or someone else, giving consent on her behalf.
27. Exceptions to the Informed Consent Doctrine, that The Courts have recognized four situations in which consent is required, but informed consent (that is adequate disclosure) is not necessarily required during (i) emergencies, (ii) the therapeutic privilege, (iii) patient waiver and (iv) treatment of criminal suspects or patients in custody. A right of action for lack of informed consent is limited to non-emergency treatment. An emergency situation has been defined as one, when the patient is incapable of consenting and the harm from the failure to treat is greater than any harm posed by the treatment. The existence of emergency may be a question of fact.
28. Constituents of Medical Negligence is now well established by a plethora of Rulings of the Honble Supreme Court of India in Jacob Mathew vs State of Punjab[(2005) 6 SSC 1] and in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651]. In the Bolams case (Bolam Vs. Frien Hospital Management Committee (1957)1 WLR 582) it was also held that a doctor is not negligent if he is acting in accordance with standard practice, merely because there is a body of opinion who would take a contrary view. To decide the case of medical negligence; essentially three following principles are applied;
(i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time.
(ii) Whether the doctor adopted the practice (of clinical observation diagnosis including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field.
(iii) Whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.
29. Our considered view on the point No (i) is YES, the OP-1 is Gynecologist and OP-3 is a Surgeon, who are qualified and possess medical skills. Regarding the point nos.(ii) & (iii), we opine as NO, as both the OPs did not adopt standards of practice, in proper diagnosis and further surgical procedure.
30. In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning stated that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
31. Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 observed that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is, whether, he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.
32. In Jacob Mathew as well as Martin F D'Souza case , Honble Apex Court quoted with the approval the opinion of Mac Nair, J in Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118(QBD) :
Wrong Diagnosis-Clinical and Ultra-sonography
33. On perusal of Ultrasound Report (USG) the relevant findings of ovary reproduced below:
Right ovary is sonographically normal. A heteroechoic mass measuring approx. 8.9 cms. x 4.9 cms is seen at the left Hypo-gastric and & Umblical region, Sonographically, its origin could not be established. However, left ovary is not visualized separately.
The possibility of twisted ovarian mass cannot be entirely ruled out sonographically & need to be investigated further.
34. The Sonologist Dr. Sanjay Sharma mentioned in his USG report that, a mass in Hypogastric & Umbilical region. Its strange that, the Sonologist was also made wrong diagnosis. Hence, in our opinion the OP-4, the Shivaram Hospital is vicariously liable. Because of the USG diagnosis, on which the OP-1 relied upon, and also diagnosed it as a case of Torsion Ovarian Cyst.
35. We have perused the Annexure R-2 produced by OPs, dated 06.05.2012 issued by Dr. Vijay Kumar Kadam, MD/OBG, Medical Superintendent of Mother Child Hospital, GNCTD, Narsipur, Delhi. He has given the report on the basis of the medical records and expressed his opinion, that there was no medical negligence in diagnosis or management of this patient. The patient was treated as per established principles on the right lines. We are surprised and not convinced about the statement in the report issued by Dr. Kadam that, Nobody could have diagnosed incisional hernia pre-operatively Cause of Septicemia Death of patient:
36. It is revealed from the case notes dated 15.08.2000, that at 5.30 pm i.e. about 3 hours, after the operation, the patients BP-80/60, Pulse 140/min and had dyspnea. The Urine output was nil. These are the cardinal signs of septicemic shock. Thereafter, to avoid further deterioration, the patient was shifted to Shivaram Hospital (OP-4) at 11 pm on 15.8.2000, from 16.8.2000 to 10.09.2000 treated in ICU. We have observed the discrepancies in the medical records and the submission made in the affidavit. It is pertinent to note that a certain discrepancy has crept in Medical record which shows that the patient was shifted on 15.08.2000 at 11 pm, but, the affidavit evidence of OP-3 shows that the patient was shifted on 16.08.2000.
37. Men may tell lie, but documents cannot . Let us view the Death Summary issued by Batra Hospital, which is reproduced as below:
Diagnosis: Postop Strangulated Hernia & Left sided pyopneumothorax, with ARDS with overwhelming sepsis with MODF.
This lady operated for strangulated incisional hernia in a hospital at Ghaziabad, developed septicemic shock and ARDS. She was intubated and ventilated, but as the patient was not settling, she was referred to this hospital on Ambu bag. The patient was tachypnea in poor general condition. She was intubated and ventilated. A large pyopneumothorax was detected in left side which was drained with a chest tube. But the overwhelming sepsis with MODS continued. She expired on 20.09.1999, at 9.55 a.m. despite all medical and resuscitative measures.
Thus, it is a conclusive proof that, the condition of patient was not good, and at the time of shifting to Batra Hospital, she was on Ambu Bag. She was already a deteriorated case of septicemic complications, pyopneumothorax and progressing to MODS.
38. With reference to the medical literature supra, we are of considered view that, the primary cause was the undiagnosed Strangulated Incisional Hernia, leading to necrosis of bowel loops. Postoperatively she developed peritonitis, then to septicemia and further endo-toxic shock. The patient was in ICU at OP-4 for a month, never recovered in spite of treatment, and unfortunately died on 20.9.2000. Therefore, in the instant case, we are convinced that there are several shortcomings, admittedly, both the OPs are qualified doctors, but they have not used their best professional judgment and due care during diagnosis and treatment of the patient. There was a delayed diagnosis and also it was a wrong diagnosis, by OP-1 and the Sonologist also, who failed to diagnose Strangulated Hernia correctly. We do not think that it was not an Error of Judgment committed by the team of doctors.
39. The treatment given to the patient was not as per the Standards of Practice. The hospital records lack several details pertaining to Operative notes, procedural aspects, etc. The OPs did not exercise reasonable competence in this case. The OPs tried to shift their onus on Batra Hospital, which is not acceptable one. We rely upon the decision of the Honble Supreme Court in V.P.Shanthas Case [(1995) 6SSC 651], and Jacob Mathews case, (2005) 6 SSC 1 wherein it had concluded that, a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.
Another judgment of House of Lords/English Courts in Whitehouse vs. Jordan [(1981)1 All ER 267] the ruling that, "The true position that an error of judgment may or may not be negligent it depends on the nature of the error. If it is not one that would not have been made by a reasonable competent professional man professing to have the standards and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligence, if on the other hand, it is an error if such a man, acting with ordinary care, might have made, than it is not negligence".
40. Hence, with foregoing discussion, several medical literatures on the subject, we hold OP 1 and 3 liable for medical negligence as wrong diagnosis and for the surgical management of the patient which subsequently resulted into the death of patient. Further, the OPs are vicariously liable, due the negligence of Sonologist for wrong USG report. Accordingly, we pass the following order:-
The OP-1 and OP-3 are directed to pay the Complainants/LRs, jointly and severally, a total sum of Rs.10,000,00/- with interest @ 6% pa from the date of filing of this complaint, till realization. Also, OPs are directed to pay Rs.30,000/- to the Complainants/LRs, towards the litigation charges. The entire order should be complied within 90 days from the date of receipt of this order; otherwise it will carry further interest @ 9% pa, till its realization.
....J. (J.M. MALIK) PRESIDING MEMBER .
(DR. S.M. KANTIKAR) MEMBER Mss/25