State Consumer Disputes Redressal Commission
Col. Y.P. Singh vs R.G. Stone Urological Research ... on 9 November, 2006
IN THE STATE COMMISSION:DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 09-11-2006 Complaint Case No. 92/2001 Col. Y.P. Singh (Retd.), S/o. Late G. Singh, R/o. D-95, Saket, Meerut, Uttar Pradesh. . . . Complainant Through Col. K. Digamber Singh (Retd) Advocate Versus 1. R.G. Stone Urological Research Institute, F-7, East of Kailash, New Delhi 110065. 2. Dr. Bhimsen Bansal, Chairman & Managing Director, R.G. Stone Urological Research Institute, F-7, East of Kailash, New Delhi 110065. 3. Dr. Anil Varshney, Head of Urology, Endo-Urology & Lithotripsy, R.G. Stone Urological Research Institute, F-7, East of Kailash, New Delhi 110065. . . . Respondents 1 to 3 Through Mr.Jeevan Prakash, Advocate 4. The New India Assurance Company Ltd. 6-Bahadur Shah Zafar Marg, New Delhi 110002. . . . Respondent No.4 Through Ms. A. Sangeeta, Advocate 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 or not?
Justice J.D. Kapoor (Oral)
1. On account of medical negligence on the part of OPs, the complainant has sought compensation of Rs.6 lacs. The case of the complainant, in brief, is that he was admitted in the OP-1 hospital on 10.09.2000 and was examined by Dr. Varshney, O.P.3. His immediate problem was that of waves of acute pain at short intervals being caused by catheterization, which had made his life miserable. OP promised to carry out the intervention by Holmium Laser machine, which was recently imported for the first time in India by his Institute and gave assurance that the procedure would be bloodless, painless and would give immediate relief.
2. That OP carried out the intervention on 18.9.2000 by Nd: Yag Laser (Neodymium: Yttrium Aluminium Garnet) instead of Holmium Laser machine and confirmed complete removal of prostate.
3. That the complainant was prescribed heavy doses of painkillers after the procedure, which adversely affected his liver and he was put on Liv. 52, to rejuvenate liver functioning. The complainant was discharged after 5 days of admission on 22.09.200 after making a heavy payment for HOLEP procedure with catheter in place. No OPD-cum-Discharge card was issued despite bringing this fact to the notice of OP. The complainant was asked to come for review on 28.09.2000 but no review could be carried out on the said date as OP 3 was out of station and asked the complainant to come on 04.10.2000.
4. On 03.10.2000, Dr. Jamal of the said Institute made several attempts to replace the catheter and caused severe pain and injury in the process. The complainant continued to suffer severe pain due to retention of urine caused by debris left by the OP 3 after intervention which was performed by Nd: Yag instead of Holmium laser as promised. OP 3 confirmed the complete removal of prostate at 6.00 p. m on the same day. On the following day, the complainant was bleeding in the private parts and injury of two inches above right knee was noticed and continued to be dressed for 10 days. Again, no OPD/discharge card was issued for 5 days of stay in the Institute.
5. He continued to have pain persistently and had to undergo second operation on 16.10.2000 by Trans-Urethral Resection of Prostate (TURP) at Meerut. The post-operative experience of the complainant was identical with features of Nd Yag laser. The operative table of Nd Yag / Holmium laser will reveal at a glance that Nd Yag laser was used.
6. As per record of the OPs, Holmium procedure has been carried out whereas the complainant has been treated by HOLRP, which is entirely a different variation of Holmium laser evolved to cover the drawback of HORRP and is considered the state of art procedure. OP did not and could not give Holmium laser treatment for the following reasons:
I) This technique requires significant skill and cannot be considered easy to learn. There is a learning curve of atleast 20 cases once the Surgeon has been taught the fundamentals of the technique. The ability to use Endoscopic camera is mandatory besides having correct essential equipments.
ii) OP 3 had neither the training nor the learning curve nor the adequate equipments for the HOLRP intervention.
iii) That the OPs deliberately and willfully kept Nd. Yag intervention of the complainant a closely guarded secret by not issuing an OPD-um-Discharge Card.
7. As against this, the stand of the OPs is that the treating doctor was well qualified, experienced and trained and competent to deal with the Holmium laser. He is a Specialist with a Doctorate (PhD) in the field of Urology and practical training and experience in Urology and Endo-urology for more than 20 years and has carried out 20 cases in Mumbai prior to performing the technique on the complainant.
8. Allegations of the complainant that he was treated with Nd Yag laser instead of Holmium laser and complete prostate was not removed but the same was partly re-sected is baseless. The complainant was treated with HOREP technique of Holmium laser and the allegation of the complainant that he was treated with Nd: Yag laser and not with Holmium laser is erroneous as the complainants conclusion in this regard is based on mere presumption.
9. The complainant was kept for two more days in hospital and was recommended to be on catheter (a sort of pipe laid in the way of urine passage) which prevents blockage of the natural passage and abundant precaution and care was required to prevent any complication. Further the Holmium laser has three techniques, namely, HOLAP, HOLRP AND HOLEP and the complainant was treated with HOREP technique instead of HOLEP as per judgment of the treating doctor in view of the much greater risks associated with HOLEP. The tissues were re-sected and thereafter the tissues were ablated and burnt, evaporated and coagulated by using HOREP technique of Holmium laser. Holmium laser is the improved and further refined version of Nd: Yag laser.
10. The complainant was rightly billed for holmium laser. However, the description of technique used is known as HOLEP and not HOREP. This is a bonafide mistake of the billing section and charges for both techniques are the same i.e. Rs.35,000/-. On the second allegation of the complainant, OPs admitted that his complete prostate was not removed but was partly re-sected as the main object of treatment was to achieve size / volume reduction and to decrease urethral obstructions and symptoms and not to eliminate the complete prostate. Complete prostate is removed only in the case of cancer of the prostate. If complete prostate is removed, the chances of continuous dribbling of urine and loss of potency increases. Due to large size of the prostate, in the case of the complainant, the treatment was to be given in two stages and the complainant was informed about the said treatment prior to the administration of the treatment.
11. The O.Ps further contended that the medical documents filed along with the reply of the O.Ps shows that the laser treatment might require two or more sessions to produce adequate tissue removal. Discharge summary after first treatment clearly shows that patient is being discharged with residual tissue. However, the complainant did not turn up for second session of treatment and abandoned the treatment and got his entire prostate removed at Meerut by TURP procedure, which is, now a days, out dated.
12. The complainant was provided with complete record and discharge summary. There is no proof of negligence on the part of OPs. No expert has been examined on behalf of the complainant and the conclusions drawn by the complainant are erroneous and not in the right perspective and contrary to the record. Complainant acted against the medical advice and ignored the instructions given to him and ultimately abandoned the treatment for no reason and he did not turn up for the second session of treatment. He himself chose to get treated elsewhere. There is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusions differ from that of the other professional man.
13. In support of their case the O.Ps have also relied upon the following judgments:-
i) K. Sadanandan Vs Lisie Hospital 2006(1) CPJ 24(NC) .. In the absence of expert evidence to challenge the explanation of the opposite parties, the doctors could not be faulted.
ii) Jacob Mathew Vs State of Punjab and Anr. 2005 SCC 1.
A mere deviation from normal professional practice is not necessarily evidence of negligence... The standard of care, when assessing the practice adopted, is judged in the light of knowledge available at the time of incident and not at the date of trial.
14. In nutshell, the question that arises for determination is, firstly, whether the complainant was prescribed heavy dose of pain killers that adversely affected his liver; and secondly, whether he was treated with Holep technique Holmium Laser or Nd:Yag Laser (Neodymium : Yttrium Aluminium Garnet). Though no convincing evidence has been produced by the complainant that he was treated with Nd:Yag Laser (Neodymium :
Yttrium Aluminium Garnet), but he has raised the presumption of having been treated with Nd:Yag Laser instead of Harep technique on the allegation that he was kept for 2 days more in the hospital and put on catheter for a few weeks instead of few days.
15. 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 holds 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)
16. 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.
17. 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 & Ors (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 V/s. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of the 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.
18. 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.
19. 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 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)).
20. 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?
21. When we test the allegations of the complainant on the anvil of the aforesaid criteria drawn by us, there are mainly three things that emerge. Firstly, that the treating doctor was well qualified and competent to deal with the Laser technology of both the kind, Holmium as well as Nd. Yag Laster, and was a Specialist with a Doctorate in the field of Urology.
22. It is the discretion of such a doctor to administer or adopt the proper line of treatment or the technology keeping in view the physical traits, metabolism, age etc. of the patient and other maladies of the patient. In the instant case, the grouse of the complainant was that he was not given the patient guide, which now the O.P has produced in the case.
However, medical literature shows that both the laser technologies, i.e. ND. Yag and Holep are painless. The advantage of Holep over Horep is that the former is painless, bloodless surgery and the patient would be in a position to drive a vehicle on the same day. The literature further shows that after the surgery the patient will be taken to the recovery room and at the end of the operation a Foleys catheter will be inserted. This is a special catheter that has a water filled balloon on the bladder end to keep it in place. It continuously drains urine into a sterile collection bag. It is usually left for 2 to 3 days.
23. Most of the times the inference has to be drawn from the medical technology and the technique adopted by the doctor on the patient. The complainant was treated with Holep laser technology. There is no medical literature produced before us which shows that in Holep Laser technology the patient has be on catheter for so many weeks or suffer so much as the complainant has suffered by remaining for 28 days. Either Holep technology was not applied or the Foleys catheter was not inserted.
24. The contention of the counsel for the respondent that since the complainant was one of the first few patients who was experimented with the Holep technology and, therefore, abundant precaution was taken in view of the high risk patient category of the complainant, as he came from emergency of Escorts Hospital, therefore, no negligence should be inferred is difficult to accept.
25. Whenever a doctor resorts to a new technology which is yet to become popular he is all the more required to be extra careful, cautious and if the desired results of the said technology is not achieved and yielded, there is no other inference than to come to the conclusion that he was negligent one way or other either while administering such procedure or medicines, or in not providing required kind of catheter or other devices.
26. Whenever any medical professional adventures for a new technology he should be aware of all the consequences flowing therefrom and should take all the necessary precautions for preventing those consequences as otherwise instead of giving fast and perfect relief the patient suffers more. Medical treatment does not mean that the remedy should be worse than the disease.
27. In view of the sufferings of the complainant unnecessarily, his remaining on catheter for 28 days and not being fit for performing the daily chores and ordeals, may be, due to the non-administration of Holep laser or even if Nd. Yag Laser was applied, we deem that payment of a lump sum compensation of Rs. 50,000/- would meet the ends of justice.
28. We hold the O.P. 1 and 2 jointly and severally liable.
Since the O.P.1 was insured with O.P. 4 for Rs. 20 Lacs, O.P. 4 alone will pay to the complainant, as he is the direct beneficiary of the insurance policy obtained by O.P. No.1 from O.P.4.
29. We have passed this order in order to obviate future legal complications or the objections that may be raised by O.P.4 that the contract was between O.P. 1 and
4. In terms of the provisions of the Consumer Protection Act, any person who is direct beneficiary of service also is a consumer and O.P.4 is to pay this amount as we have already held O.P. 1 and 2 guilty for medical negligence.
The amount shall be paid within one month from the date of receipt of this order.
30. A copy of this order, as per statutory requirement, be forwarded to the parties free of cost and thereafter the file be consigned to record.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member HK