National Consumer Disputes Redressal
Dr.Janak Kantimathi Nathan vs Murlidhar Eknath Masane on 17 April, 2002
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 739 OF 1994 (From the order dated 29.10.1994 in complaint No.203/92 of the State Commission Maharashtra) Dr. Janak Kantimathi Nathan Appellant Vs. Murlidhar Eknath Masane Respondent A N D FIRST APPEAL NO. 740 OF 1994 (From the order dated 29.10.94 in complaint No.203/92 of the State Commission Maharashtra) Shushrusha Citizens Co-operative Hospital Ltd., Bombay Appellant Vs. Murlidhar Eknath Masane Respondent BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE J.K. MEHRA, MEMBER. MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI, MEMBER. Medical negligence - deficiency in service - Hospital and the consultant. Consultant refusing to see the patient on Saturday and Sunday - cannot be held deficient in service. - doctor also needs rest and relaxation. Bed sore developed on account of proper lack of care by the Hospital - deficiency in service. ICU managed by doctor qualified in Ayurvedic medicines - held deficiency in service. Patient admitted on 6.1.92 for treatment of epilepsy under the charge of the consultant but died on 8.1.91 of septicemia with viral encephalitis - principle of res ipsa loquitor applicable - consultant held deficient in service. For the appellant in both the appeals : Mr. Sunil Kr. Verma, Advocate and Dr. M.S. Kamath. For the respondent in both the appeals : Mr. Pawan Upadhyay and Mr. Subodh Kamath, Advocates O R D E R
DATED THE 17th April, 2002.
JUSTICE D.P. WADHWA, J.(PRESIDENT) These two separate appeals are by the hospital and the attending doctor against the order of the Maharashtra State Consumer Disputes Redressal Commission (State Commission) holding them guilty of medical negligence for the death of 13 years old boy. While the hospital was ordered to pay a compensation of Rs.3.00 lakhs, the doctor was ordered to pay Rs.50,000/-. Each of the appellants were also directed to pay Rs.5,000/- as costs to the complainant, father of the deceased.
Amit, the deceased was the only son of Murlidhar, the complainant. Amit was studying in 7th standard in a school in Bombay. In 1991 he was suspected of having developed epilepsy and was under the treatment of Dr. Pawar who had prescribed Gardenal tablets. Complainant wanted to have second opinion about the illness of his son. He, therefore, consulted Dr. Nathan, appellant in First Appeal No.739/94, who is a Neurophysician. Dr. Pawar also recommended consultation by Dr. Nathan. It was on 13.12.1991 that complainant consulted Dr. Nathan for the first time. After examining Amit, Dr. Nathan prescribed Zeptol tablets instead of Gardenal tablets which were earlier being administered to Amit. After a few days Amit developed rashes and his body became red all over. Dr. Nathan, therefore on 23.12.1991 stopped Zeptol tablets and instead prescribed Eption. Amit attended his school upto 3.1.1992. However, it appears that after the prescription of the medicine one after another by Dr. Nathan, condition of Amit worsened and he developed more convulsions. On the night of 4th-5th January, 1992 Amit developed sever convulsions. At the middle of the night Dr. Nathan was told about condition of Amit He, however, expressed his inability to come and see Amit as he said he did not see patients on Saturdays and Sundays. Since Amit was having severe convulsions complainant took him to a nearby Nursing Home called Krishna Nursing Home. There he was attended by Dr. S.D. Vilankar who himself contacted Dr. Nathan who told him to continue treatment which Amit was having. On the advice of Dr. Nathan, Amit was admitted in Shushrusha Citizens Co-operative Hospital Ltd., appellant in First Appeal No.740/94, on 6.1.1992 at 3.30 PM. Admission in the Hospital was made on the basis of note made by Dr. Nathan which read Admit under my care. On 8.1.1992 at 7.30 PM Amit died.
There is a great deal of controversy as to whether proper hospital services were rendered to Amit and was Dr. Nathan negligent when Amit walked into the hospital on 6.1.1992 at 3.30 PM and came out dead at 7.30 PM on 8.1.1992? He was admitted for the treatment of epilepsy but mode of death is described as Terminal Cardio-Respiratory Arrest on account of septicemia preceded by viral encephalitis which is stated to be the cause.
Complainant, father of Amit, mourns that on account of the negligence of the Hospital and Dr. Nathan he lost his only son.
He made a claim of Rs.9,22,390/- as compensation against both. Hospital says it took all possible steps in rendering proper medical service to Amit and no negligence could be attributed to it.
Dr. Nathan also says that he treated Amit with all reasonable care and he was not at all deficient in his treatment of Amit. The stark question is as to how a boy of 13 years of age who attended his school regularly upto 3.1.1992 and entered the Hospital on 6.1.1992 under the care of Dr. Nathan for treatment of epilepsy could die within 48 hours of his admission of septicemia. To us it appears here principles of res ipsa loquitur (things speak for themselves) may apply. State Commission has held both the Hospital and Dr. Nathan blameworthy and awarded compensation to the complainant, father of the deceased, as aforesaid. In the complaint it has been alleged that immediately when Amit was admitted in the Hospital four injections were given to him by the resident doctor. Complainant says he was quite surprised as to why there being no diagnosis and within 10 minutes of the admission Amit should have been given four injections. He says when Dr. Nathan visited the Hospital at about 4.30 PM on the day of admission, he was quite annoyed as to why injections had been given. He advised giving an injection of Largactil. Complainant says immediately on giving the injection Amit became unconscious. After seeing Amit for about a minute Dr. Nathan left.
When the complainant brought to the notice of the resident doctor and the nurse that Amit had become unconscious they said that he was merely sleeping and that he may be allowed to sleep. Next morning Amit did not get up nor did he pass urine or stool. In spite of the request no doctor came to attend on Amit. Again complainant was told that Amit was sleeping.
Complainant was worrying all the time as according to him Amit was unconscious and not a drop of water was in his stomach when urine and stool had stopped. Great anxiety was being caused to him seeing the condition of his son. All the time he was told by the nurses that they had called the doctor. After 24 hours of his seeing Amit last, Dr. Nathan came and told the complainant that the condition of the boy was on account of over dose of injection. He said he had called Dr. Pai a physician to examine the child. Thereafter Dr. Nathan went away. Amit was examined by Dr. Pai at about 8.30 in the night when for the ftsrt time Amit was given Glucose and Saline. Though the nurse had told the complainant that Glucose and Saline would continue for 3-4 hours but it had not been obserbed. Complainant says he so informed the nurse on the morning of 8.1.92 that for 10/11 hours one bottle was not over. No attention was paid. Amit was still said to be sleeping and according to complainant he was in coma. Amit was not moving his limbs at all and was quite immobilised. Since for the last two days he was wearing same clothes, complainant says he tried to change them and when he found there was wound on the back of Amit and his skin was pale. Amit was finding difficulty to breathe and was intermittently opening his mouth and was gasping for breath. No attention was paid to the condition of Amit.
Complainant bought nycil powder and applied the same himself on the back of his son. Complainant says he could not see the suffering of his child and was continuously telling the staff nurse that the boy was in serious condition.
At about 12 in the noon Amit was then taken to operation theatre when complainant was asked to put his signature on a certain form. Amit was taken to X-ray room. Complainant says he insisted that Dr. Nathan be called. At about 5.00 PM Dr. Nathan came when he told the complainant that Amit was suffering from Pneumonia. Dr. Nathan instructed his junior doctor to remove Amit to ICU and wanted some injections immediately which he gave in writing to the complainant. These injections were bought.
Dr. Nathan left the Hospital at 5.30 PM when Amit was in serious condition. He was put to oxygen at 5.00 PM. His pulse was 160 per minute and blood pressure was fluctuating. According to Dr. Nathan he had visited the Hospital at about 4.45 PM and left the Hospital at 6.30 PM. He said it was a routine visit and did not receive any emergency call. Cause of death was stated to be different when two hours before complainant was told that his son was suffering from pneumonia. Then the complainant says he was not given Hospital record in spite of his requesting for the same which according to the Complainant gave time to the Hospital and doctors to manipulate the record. In support of his case complainant examined himself and was extensively cross-examined.
He filed affidavits of Pradip Kamat and Ramesh Bhandekar. While Bhandekar stated that he visited the Hospital on 7.1.1992 at 6.30 PM to see Amit when he found him unconscious all the time he was there. He said he tried to arouse Amit but Amit did not respond. Kamat says that he visited Hospital on 8.1.1992 at 12.00 Noon to see Amit along with one Ranjan Patil.
He stated that he stayed in the Hospital till 7.30 PM. When he saw Amit he found his respiration was heavy. He said he himself was calling Dr. Nathan and Nurse on duty but nobody responded. Dr. Nathan came to attend the patient at about 5.00 PM when condition of Amit was serious. Complainant also produced school record of Amit and also Hospital record what was available with him. He also filed certificate of Dr. S.D. Vilankar of Krishna Nursing Home who stated that he did talk to Dr. Nathan at 3.00 AM on 4.1.92 telling him about the convulsions of Amit when Dr. Nathan told him to continue the same medicine. Complainant also produced record of the expenses incurred by him on the treatment of Amit. Lastly he produced certificate of Dr. J Pande of Nagpur who had opined that there was negligence in the treatment of Amit.
There had been serious objection to this report of Dr. Pande as he was not produced for the cross-examination by the hospital and Dr. Nathan. Report of Dr. Pande was, however, subject matter of cross-examination by counsel for the Hospital and Dr. Nathan. Since Dr. Pande was not subjected to cross-examination on his report though there was prayer to that effect by the Hospital and the doctor we will not rely on this report and would ignore it altogether.
Hospital and Dr. Nathan have produced evidence in the form of statements on affidavits of Dr. Vijay Deshmukh, Acting Dean of the Hospital, Dr. D.K. Deshmukh, Consulting Psychiatrist in the Hospital, Dr. B.M. Pai, Consultant Physician of the Hospital.
Reliance has been placed on the Hospital record.
At this stage it would be appropriate to refer to the Hospital record regarding the treatment of Amit. We may notice that it was in mid December, 1991 that Amit started having more frequent seizures. He was under the treatment of Dr. Nathan who had advised ECG and head CT as it would appear he suspected tuberous selerosis. He changed three medicines one after the other to try to seizure control on Amit.
When Amit developed skin reaction Dr. Nathan changed another medicine. On 4.1.1992 Amit had serious convulsions. When approached in the middle of night Dr. Nathan expressed his inability to come and see the patient and advised hospitalisation. On 6.1.1992 Amit was transferred from Krishna Nursing Home to Shushrusha Citizens Co-operative Hospital Ltd.
and was admitted there under the care of Dr. Nathan. Complainant says he was given four injections by the resident Dr. Sharmila Makasane which fact is not admitted by the Hospital. On arrival of Dr. Nathan at 4.30 PM on 6.1.1992 he advised Largactil injection (25 mg) 4 ampules, three times a day. These were bought and administered to Amit. Complainant says immediately thereafter Amit became unconscious though stand of the Hospital is that he was sleeping. According to the complainant from that time onward Amit was unconscious when he died 52 hours later. Doctors says that he was conscious and on the morning of 7.1.1992 he was walking around in the ward. Hospital record does not testify that Amit was walking around the ward.
Rather Affidavit of Ramesh Bhandekar shows that Amit was not conscious. However, there is noting made on 7.1.1992 in the Hospital records by resident doctor that patient unabale to take oral medication. This remark does not show that Amit was able to walk around the Hospital. From the Hospital record it was clear that on 7.1.1992 Amit did not pass urine and was having urinary retention. This may not itself show that the patient was in semi comatose and could be the side affect of medication. But considering the whole aspect of the matter it appears to us that Amit was in semi comatose on 7.1.1992. Noting dated 6.1.1992 in the Hospital record further shows that Dr. Nathan referred Amit to Dr. D.K. Deshmukh who after examination advised Hexidol and Alzolam. Hospital record does not show as to why Dr. Deshmukh prescribed these medicines though in the affidavit filed by him he gives reasons for the same. Dr. Deshmukh had again occasion to examine Amit on 8.1.1992 when he found that Amit was having involuntary movement in the right side. He advised discontinuance of Hexidol and Alzolam which he had prescribed earlier and then he records a note addressed to Dr. Nathan as under:
Dear Dr. Nathan, In view of persistent fever will you like to review the case once again. In his affidavit Dr. Deshmukh says that when he examined the patient on 8.1.1992 he was conscious. This could not be so. He did not record this fact in the medical record. Rather when we examine his statement with reference to the Hospital record of 8.1.992 and the statement of the complainant that bed sores had developed on the back of Amit which clearly suggest that Amit was either semi comatose or unconscious or immobilised statement of Dr. Deshmukh stands falsified. When on 7.1.1992 Dr. Nathan found that Amit was feverish he referred Amit to Dr. Pai and at the same time administered injection of Largactil. Dr. Pai in his affidavit says that he could talk to the relatives of Amit about his history of illness. He also says that he found Amit drowsy and when aroused he could talk coherently and he allowed Dr. Pai detailed examination. We are unable to subscribe to this part of statement of Dr. Pai that he found Amit drowsy and who could be aroused. This type of statement of doctor to help each other is not uncommon but given the facts of the present case we are inclined to accept the statement of complainant that Amit was not conscious right from the administering of Largactil on 6.1.1992 till his death. Dr. Pai found that Amit was having mild fever, a slight throat secretion etc. and advised antibiotic. Hospital record does not show what Dr. Pai found except his prescribing ampicillin. These antibiotics he advised to be given to Amit through intravenous route. Dr. Pai says he also instructed RMO and the Nurse on duty to start I.V. drip of Isolyte M with M.V.I. (Vitamin Injection) and Redoxan (Vit.C) added to it. Dr. Pai examined Amit on the morning of 8.1.1992 and he says that he found the condition of Amit same as that existing in the previous evening except that his fever had arisen. He says he instructed RMO to increase the dose of injection of ampicillin. He advised X-ray of the chest and ordered for lumbar puncture test. He says clinically he noticed that Amit had not any sign of Meningitis. Chest X-ray was normal and did not show any abnormality. Lumbar puncture was also normal. Thereafter it appears Dr. Pai had no occasion to examine Amit and he says subsequently in the evening he was told of sudden deterioration in the condition of Amit and whatever steps Dr. Nathan took to treat patients as told by Dr. Nathan himself. At about 12.00 Noon lumbar puncture was done and X-ray of chest taken. Then the record shows that Amit was unconscious. His pupil were reacting to light. Dolls eyes present and that there was no response to stimuli. Amit was having laboured breathing and his temperature was 102 degree FH. Certain treatment was prescribed when at 4.30 PM it is recorded that the child was ready for ECG. At 5.30 PM onwards the condition of Amit is recorded and at 7.30 PM he was shown as having died and cause given is Septicemia with viral encephalitis. Relatives of Amit were informed of the death and so Dr. Pai and Dr. Nathan. Death certificate has been issued by resident medical doctor of the Hospital.
Dr. Nathan says he is competent to issue this certificate and that it was issued under his instruction and that of Dr. Pai. He admits that Amit was admitted for a different cause than the cause of his death. If we refer to the death certificate it is issued by Dr. Vivek Chitlange, an Ayurvedic doctor.
In his statement Dr. Nathan admits that on the night of 3rd/4th January, 1992 he was contacted on phone by complainants relative at about 2.00 AM about the attacks of Amit which were of longer duration. He said he advised that Amit be admitted in any Hospital and to ask the local doctor to speak to him. No one thereafter rang him up. However, he stands contradicted when Dr. S.D. Vilankar gave certificate on record stating that he did talk to Dr. Nathan who advised him to continue the same treatment. According to Dr. Nathan on 6.1.1992 he came to the Hospital at about 4.30 PM when he examined Amit. Amit was conscious at that time. He was not having any fever or any signs of meningitis. He said that he advised I.M. Largactil 25 mg. He denied having scolded the Hospital staff for having administered injection before his arrival. According to him attacks which Amit was having were not of epilepsy. He therefore referred Amit to Dr. Desmukh, Consultant Psychiatrist in the Hospital. Thereafter, he visited Amit on the evening of 7.1.1992 and during his round he saw Amit. Through the papers he knew about the treatment given by Dr. Deshmukh. Dr. Nathan found Amit conscious and responding to the questions but appeared to be drowsy. He stopped Largactil injection. He found Amit was having mild fever and also mild lung infection. He prescribed ampicillin tablets and referred Amit to Dr. Pai, a Physician in the Hospital. Again from the papers he could know that Dr. Pai had examined Amit.
Thereafter on 8.1.1992 he came to Hospital at 4.30 PM and examined Amit. Now he found his condition to be serious and advised shifting to ICU.
He was shown the report of lumbar puncture and the chest X-ray. He said that he called Dr. Pai and had a joint consultation. Some medicines were changed to control the swelling of brain and to control malaria. Dr. Nathan says that he found that Amit was having septicemia and he prescribed multiple antibiotics to check the same. He said that he was in the ICU till 6.30 PM and at that time Dr. Chitlange , Dr. Pai and one Dr. Bailur were also there along with the nurses on duty. He said he had to leave the Hospital because he had other urgent patients to attend and intended to come back.
He did not return because of pressure of work and was informed of the death of Amit at Hindu Sabha Hospital by Dr. Vivek Chitlange. Dr. Pai contradicts Dr. Nathan squarely. He does not say that he was there in the ICU when Dr. Nathan left. As to what was more pressing engagements than looking after the patient who was dying Dr. Nathan had not disclosed. Dr. Nathan then said that nycil powder was not advisable for bed sores. He was non-committal as to what treatment was given by the Hospital to control the bed sores. According to Dr. Nathan the cause of death was septicemia with viral encephalitis . Amit was not suffering from any such disease at the time of admission. Dr. Nathan admits that septicemia could not be contacted suddenly and that there has to be some incubation period which could be days and weeks before the first sign of septicemia infection might occur. According to Dr. Nathan cause of septicemia was the infection of lungs. He admits that Amit was admitted in the Hospital for observation of fits. Hospital record of 8.1.1992 shows that Ryles tube was applied to Amit. Dr. Nathan says that the tube was not inserted at his advice. No doctor is taking responsibility as to who advised for insertion of Ryles tube. Though according to Dr. Nathan Ryles tube was inserted under the instruction of Dr. Pai and the Medical Registrar of the Hospital, Dr. Pai is silent about giving any such instruction. We have already held that Amit was in unconscious stage. In the absence of any evidence we are not considering the allegation of the complainant that inserting Ryles tube in semi comatose condition is almost inviting complications like aspiration pneumonia and sudden death. But we are not getting the answer as to who advised insertion of Ryles tube. That itself is pointer to negligence by the Hospital. Dr. Nathan admitted that Largactil injection and tables did have side affects and one of that was sedative. He also admitted that in case of over dose of Largactil patient could develop pneumonia. Dr. Nathan says he prescribed Largactil injection as Amit was violent and that this injection is prescribed to a patient who is in psychological distress. When asked as to why post mortem was not conducted on the body of Amit, Dr. Nathan said it was not necessary as in his opinion he knew what was the cause of death. When lumbar puncture is reported to be normal this makes viral encephalitis highly unlikely as there must be increase in the white blood cell count in the CSF (should be 75 WBC in CSF). The record shows that WBC count was also normal. Therefore septicemia is also highly unlikely (WBC count should be high or very low in septicemia). When condition of Amit became worst he was transferred to ICU where Dr. Vivek Chitlange, an Ayurvedic trained doctor was incharge. There is nothing in the Hospital record to show if any supportive management was maximised to treat the patient.
As to what services were rendered by the Hospital and para medical staff working there to Amit could be best stated by Dr. Sharmila Makasare who was the resident medical officer on duty when Amit was admitted and thereafter also continued to work in the Hospital. No affidavit of Dr. Sharmila had been filed. She was the best person who could state as to what was happening all this period Amit was in the Hospital by the attending doctor and the medical staff.
Statement of Dr. Vijay Deshmukh, Dean of the Hospital at best is based on record and not from the personal knowledge. He came to the Hospital only after complaint was filed.
Complainant had made serious allegation of negligence in the treatment of Amit both by Dr. Nathan under whose care Amit was admitted in the Hospital and the Hospital itself. State Commission has taken serious exception to Dr. Nathan not visiting Amit on 4th and 5th January, 1992 and held him negligent. We do not think this is the right approach.
Dr. Nathan stated that he did not see patients on Saturdays and Sundays and that fact is also mentioned in his affidavit. Doctor also needs rest and relaxation. It would have been a different matter if Amit had been admitted in a Hospital at that time under the care of Dr. Nathan. Then perhaps it was his duty to visit him if his condition was serious or worsening. That is not the case here. But then when Amit was admitted in the Hospital under the care of Dr. Nathan, in three days he visited him only thrice after a gap of 24 hours.
No joint consultation was held by Dr. Nathan either with Dr. Deshmukh or Dr. Pai or with both. All these three doctors were consultants in the Hospital. Dr. Nathan was deriving his knowledge from notings made by the doctors on the Hospital record which are substitute for personal discussion and particularly notings do not record everything. There appears to us no justification for Dr. Nathan not to visit Amit in the morning of 8.1.1992 when complainant was frantically telling the doctors and nurses on duty to call Dr. Nathan. Condition of Amit had worsened by 12 OClock on that day. He was in the Hospital under the care of Dr. Nathan. Dr. Nathan here failed in his duty to look after Amit properly.
Then on 8.1.1992 he left Amit at 6.30 PM when he knew that Amit was dying and that time his presence was all the more necessary. Complainant beseeched him to stay on and look after his son. It was rightly observed by the State Commission that it is the duty of medical practitioner to make all efforts till the last moment to save the patient. As noticed above Dr. Nathan does not tell us what was the grave urgency for him to leave Amit at that stage and to go elsewhere. Dr. Nathan does not explain as to why he had been changing medicines one after the other so suddenly and why he did not consider the side affects of the medicines which he was prescribing. State Commission has held that it was the wrong medicines given by Dr. Nathan to Amit which aggravated his health condition inasmuch as he started getting more convulsions. If according to Dr. Nathan Amit died of encephalitis which is a notified disease why authority was not alerted and why post mortem was not conducted. In our view, State Commission rightly came to the conclusion that Dr. Nathan failed to take reasonable care which a medical practitioner will take of his patient in the circumstances of the present case. Dr. Nathan has failed to discharge the burden placed on him as to why Amit who walked into the Hospital under his care for treatment of fits came out dead , having died of septicemia with viral encephalitis. Dr. Nathan disowns insertion of Ryles tube to Amit. He says he was not consulted.
Dr. Pai also does not say of his having given any instructions for Ryles tube. Then the Ryles tube was inserted by doctors and the staff in the absence of Dr. Nathan. Hospital did not take any steps to treat the bed sore which developed and it was left to father of Amit to buy a nycil power and to treat the bed sore on the body of his son according to his own judgment and commonsense.
Amit was unconscious since 6.1.1992 and could not control his physiological activities and was unable to control his throat secretions from entering the air passage trachea and finally to the lungs because of which lungs got infected. It was completely avoidable situation if the attending doctor at the Hospital had taken proper care to drain throat infection The fact that there was oral secretion and resultant lung infection was borne out by the affidavit of Dr. Pai. Hospital here failed in its duty. Bed sore developed on account of lack of proper medical care. If medical care had been proper bed sore would not have been there.
If a patient is conscious he himself changes his position and if unconscious it is for the nurse to turn his body. It was a case of gross negligence on the part of the Hospital staff. A presumption has to be raised against the Hospital for not filing the affidavit of Dr. Sharmila Makasane.
Had she filed her affidavit she would not have supported the version of the Hospital that all proper care was bestowed on Amit. ICU is to be managed by a senior doctor. There was no senior doctor in the ICU of Hospital and it was Dr. Vivek Chitlange who was holding a degree in Ayurved only. When Amits condition worsened at 12.00 noon he would have been shifted to ICU immediately but no steps were taken by the Hospital till Dr. Nathan directed for shifting of Amit to ICU. Cause of death of Amit is still not clear. He died on account of negligence of Dr. Nathan in the Hospital and now a plea is being advanced that he died of septicemia without there being any autopsy of the body of Amit. It is unfortunate that complainant has lost his only son due to palpably negligence on the part of Dr. Nathan and the Hospital. We, therefore, uphold the order of the State Commission and dismiss these two appeals with costs of Rs.10,000/- in each of the appeals. J (JUSTICE D.P. WADHWA) PRESIDENT J (J.K. MEHRA) PRESIDENT (RAJYALAKSHMI RAO) MEMBER (B.K. TAIMNI) MEMBER