State Consumer Disputes Redressal Commission
Mrs. Uma S. Bhatt vs Dr. Ramesh Iyer And Ors. on 19 September, 2016
CC/03/188 1/16
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/03/188
Mrs.Uma Somshekhar Bhatt,
R/at 501, 'E' Wing, Kalpa Nagar,
Bal Rajeshwar Road, Mulund (W),
Mumbai 400 080. ...........Complainant(s)
Versus
1. Dr.Ramesh Iyer,
Having his Nursing Home at:
Dr. Iyer's Maternity & Pediatric Nursing
Home,
C/o 1st Floor of Bapat Nursing Home,
A.K. Vaidya Marg, Panchpakhadi,
Thane - 2.
2. Dr. Iyer's Maternity & Pediatric Nursing
Home,
C/o 1st Floor of Bapat Nursing Home,
A.K. Vaidya Marg, Panchpakhadi,
Thane - 2. ............Opponent(s)
BEFORE:
Mr.Justice A.P.Bhangale, PRESIDENT
Mr.Narendra Kawde, MEMBER
For the Advocate Ms. Kokila Kalra
Complainant :
For the Opponent : Advocate Mr.G.N. Shenoy
ORDER
Per Hon'ble Mr.Justice A.P.Bhangale, President
1. Heard submissions at the Bar. Perused affidavits on record and report by the Committee constituted by the Directorate of Health services, State Government of Maharashtra.
2. Complainant has filed this Complaint complaining of the medical negligence on the part of opposite Party Dr Ramesh Iyer and his CC/03/188 2/16 Hospital at Thane resulting in death of daughter of the Complainant Baby Shaivi Bhat aged about 2 and half years on 30.03.2003 due to cardio respiratory failure. Shaivi was born on 06.10.2000 and was only child of the complainant and her Husband. She was healthy and had not suffered from any serious ailment in the past. Compensation claimed is in the sum of Rs.25 lacs, on the ground that the Opposite party failed to give prompt medical treatment to save the child under the intensive care unit by use of auto respirator, causing untimely death of the child by medical negligence. This resulted in lifelong mental agony for the Complainant -Mother of the Child.
3. Dr Ramesh Iyer professing himself as child specialist pediatrician running an hospital Doctor Iyer's Maternity and peadiatric nursing home at 1st floor at Bapat Nursing Home A. K. Vaidya Marg Panch Pakhadi, Thane. Wife of Dr Ramesh Iyer was practicing as Obstetrician, Gynecologist and infertility specialist.
4. Dr . Ganesh Gadiyar a family physician of Complainant practicing at Thane had recommended Dr Ramesh Iyer's Hospital for medical treatment of Baby Shaivi, when she had suddenly developed rashes all over her body . On 24.03.2003 Shaivi had high fever at about 11 p.m.. On Morning of 25.03.2003 at about 7 a.m. Complainant had contacted Dr Ganesh Gadiyar.Dr Gadiyar who examined Shaivi suggested that Shaivi be admitted in the Hospital of Dr Ramesh Iyer . Dr Ganesh Gadiyar had accompanied Shaivi to Dr Ramesh Iyer's Hospital.Shaivi was admitted at the Hospital of Dr Ramesh Iyer at Thane . Child Shaivi died on 30.03.2003 at1.45 p.m. CC/03/188 3/16
5. Police complaint was made on 11.04.2003 about the medical negligence by the doctor which resulted in death of the Baby Shaivi Bhat. During the inquiry by Police the police had sent the queries to the Directorate of Health services, State Government of Maharashtra. The committee of Doctors was constituted consisting of Dr Ashok Rathod, Prof. & Head of Department Pediatrics Division, Grant Medical College Mumbai. Dr M. B. Karnataki Deputy Director, Health services, Mumbai . The committee went through the documents in respect of the medical treatment given by the Opposite party Dr Ramesh Iyer and his Hospital at Thane on 15.09.2003, 31.10.2003, 07.11.2003 and after recording statements of the persons concerned on 21.11.2003 . The committee found that on 25.03.2003 and thereafter Dr. Iyer had not recorded conclusions of the examination of the patient and medical treatment given at the same place. Conclusions of the patient's examination was recorded separately and the name of the patient, date, time was not noted. The procedure normally followed according to the committee is to note the conclusions of medical examination and prescribed medicines at the same place. The committee noted that Dr Iyer's method is different and committee felt that the case paper prepared may be afterthought and Dr. Iyer did not follow the normal procedure .The remark "As written overleaf and order book" in case paper clinical notes was not indicative of normal procedure.
6. Observations made by the Committee need to be noted in details. On 25.03.2003 in clinical notes at 9 a.m. Breathe rate is mentioned 22 and pulse rate mentioned was 70. In Morning notes it is noted "urticaria all over body with cough with fever" but there is no entry as to whether the patient had fever , but in nursing check list at 9 a.m. temperature is mentioned as 102.6 F. Patient Baby was CC/03/188 4/16 administered Syrup Calpol at 5p.m. at evening . When Baby was admitted in the morning she should have been given Syrup Calpol at morning when her temperature was 102.6 F. Because the Baby's temperature till 12 noon time was mentioned as 100F as per nursing checklist.Blood examination, X ray foot was directed but no conclusions were noted . Committee found that entries as to advice of Dr Arole were not made by Dr Iyer on case papers if according to him the relatives of Patient had refused the procedure of the insertion of tube in chest under GA.Refusal by relatives of Baby to undergo procedure ought to have been noted on case papers assuming for the sake of argument that they had refused.
7. On 26.03.2003 at 10.30 a.m. Dr Iyer noted that he had examined the patient and made remark "Afebrile" but on Nursing check list it is noted as 99F. There was no periodical regular notes of temperature. According to the Committee probably there was mild running fever for Baby as breath rate noted was 22 per minute and pulse rate was 70 per minute with increased cough++ noted. On the same day Baby was X ray examined and pneumonia was detected at left side in lungs and middle portion of lungs on right side .hence it was not possible that the breath rate was 22 per minute as noted . On 26.03.2003 the medical treatment was continued as same as on 25.03.2003 But in order book Inj-Mox 200 mg start is noted there is some obliteration at the place where inj Mox is written . On 26.03.2003 there was no entry of temperature of the Baby after 7 P.M.
8. On 27.03.2003 at morning patient was examined and temperature was noted as 103 F Breath rate was noted as increased to (?35/38) per minute , pulse rate 110 per minute,Bil AE downwards air entry in lungs in Chest examination appears noted Medicines were CC/03/188 5/16 prescribed I.V. Amoxycilin 250 Mg 8 hourly Iv Ofloxacin 20cc BD Omit Inj Decadron & Rest etc all. In such situation in audit book N-Isolyte P2cc Larigo over 2 hours 11.30 a.m.stat is noted and Syrup Chlorobid 2.5ml.B.D. 9 pSyrup Ibugesic 5ml. 9p.m. etc all medicines are as per order on case paper .These inconsistencies were not expected. On 27.03.2003 at 2 p.m. and at 8 P.M. Temperature noted were 100 F but in nursing check list at 7 P.M. temperature was noted as 102 F and at 9 P.M.101 F is noted hence reading at 8 P.M. it could not have been 100F.
9. On 28.03.2003 at 10 a.m. Doctor Iyer when examined patient noted temperature as 103 F , Breath rate 33 per minute and pulse rate 100 per minute. low rate of air entry in lungs was noted ,Change in medicine was noted thus Omit Taxim, Syrup cepodem, Adding Cefuroxim 250 mg.B.D.Syrup Clarithromycin 2.5.ml in order book however I.V.RI +5cc 25% Dextrose 10.45 AN stat Isolyte p2cc MVI 6P.M. are entries about which there was no order on case paper No entries are made as to much medicines were administered and at which periodic intervals and what was the quantity of R.L.. When Baby was suffering from Pneumonia precaution was necessary as not to load IV. Dr Iyer had at 2 P.M. noted that the patient had no temperature and Breath rate 28 per minute and pulse 70 per minute .
10. On 29 .03.2003 at 10 a.m. it was noted that patient was examined and it was noted that Appetite Better , Afebrile, No respiratory distress, No cyanosis and aboput medicines Etc all. Then it was mentioned R.S same No cyanosis while about medicines at 2p.m. repeat X-ray s/o small rt pneumothorax, call pediatric surgeon Dr Arole & etc all . There was no entry as to when Dr. Arole was called . why Dr Arole noted observations on separate sheet. No time of examination was noted by Dr. Arole.O/E?irritable R.S. A CC/03/188 6/16 E clear? Rub on right side Adv. ICD insertion under G.A.The enrty of Mother taking the baby for X ray examination upon her own responsuibility is made at 2 P.M. but then how the conclusion of X ray examination was noted at the same time. Dr. Arole started his clinical notes with Referral for Rt. Pneumothorax but no entry was made as to how much peumothorax was present. Dr. Iyer made note Repeat X ray Chest Rt pneumothorax S/o small. Dr .Arole as specialist was expected to write conclusions on case paper as cryptic notes can never help to arrive at conclusions as to health condition of the patient Dr Arole on inquiry by the Committee told it that he had examined patient at 4.30 p.m.He did not made any entry on case papers as to the advice of insertion of tube in chest of baby and possible risks Parents of Baby denied having received any advice from Doctors.
11. The Complainant has relied upon the opinion of Doctors dated 02.12.2003 from J.J.Hospital to prove that death of daughter Shaivi Bhat of the Complainant was on account of the medical negligence of Doctor Shri Ramesh Iyer,of the Dr Iyer Nursing Home . Dr Iyer did not take any steps on advice of Dr Arole.
12. Dr. Iyer on 30.03.2003 at 8 a.m. noted " No cyanosis , No RDS, Breath rate 22 per Minute and pulse 70 per minute, No respiratory distress and about medicines ct. all. Patient was noted as stable." This is despite the fact that Dr Sunita Arole had examined patient on 29.03.2003 and had noted pneumonities and air in lungs . Specialist Dr Sunita Arole's advice of ICD insertion was not followed. No written idea was given to relatives of patient about the requisite surgical intervention as suggested by Dr Sunita Arole.We find this is observed by the Committee . Daily written observation notes as to patient's condition and as to prescribed CC/03/188 7/16 medicines and their timings of administration from 25.03.2003 to 30.03.2003 were not found in order by the Committee and when patient Baby became serious she was taken suddenly to Nanavati Hospital.
13. Committee of Government Doctors found that notes made by Doctor Iyer were inconsistent as to changes made in prescriptions of medicines, X ray examination was required twice, In respect of casual notes as to rise and fall in temperatures of patient the Committee noted deficiencies and lacunas were observed in the medical treatment of Baby Shaivi Bhat. The conclusion which one
-may reach on the basis of the report by the committee is certain that necessary Precautions were not observed by Dr. Ramesh Iyer and his Hospital, when inter costal drain was advised by Dr .Sunita Arole.
14. Dr. Shenoy argued on behalf of the opposite party Dr Ramesh Iyer and his hospital . Dr. Shenoy criticized the complaint as afterthought contended that satisfactory medical services were rendered by Dr Iyer .He heavily relied upon the alleged voluntary endorsement buy the Complainant Uma " I am very grateful to Dr Iyer and staff for taking care of my child and for kind cooperation" According to Dr Shenoy Complainant had taken the child from Dr Iyer's Hospital against medical advice and relied upon the endorsement allegedly made voluntarily by the complainant " I am taking my child to my home at my own risk against medical advice (AMA). All risks and consequences are well explained to me by Dr. Iyer."It is vehemently contended that though at the point of time the condition of the child was absolutely unfit for discharge, yet the complainant took away the child at her own risks with full knowledge that child may succumb.
CC/03/188 8/16Dr. Shenoy also refereed to the opinion expressed by Civil surgeon , Thane dated 14.05.2003, stated thus " Dr.Iyer, after admitting the patient saw the patient repeatedly, took X rays and when fever did not come under control, changed the antibiotic. This is appropriate treatment. By the available papers it appears that the treatment given at Dr. Iyer's Hospital is proper. It can be seen that the patient's Mother Mrs. Uma Bhat thanked Dr. Iyer's Hospital for the treatment. There was improvement in the condition of the patient on the 28th and 29th instant. But the patient was taken home against the medical advice by the Mother. From the available papers it appears that Baby Shaivi was not having breathing difficulty. There was no cyanosis and no increase in respiratory rate and so there was no need to give oxygen . Pneumonia can give the patient a sudden bout of cough, because of this due to rupture of alveoli, air can enter in to the space surrounding the lungs. It can not be denied that this could not have happened at home because at Nanavati Hospital both the lungs on 'X'ray show Pneumothorax. X ray dated 29th shows minimal Pneumothorax ."According to Dr Shenoy the opinion of Civil Surgeon indicated that there was no medical negligence on the part of Dr .Iyer and that services rendered by him were not deficient. This is so as according to Dr Iyer the parents of the Baby Shaivi refused to the treatment procedure inter costal drain as advised by Dr. Arole. According to Dr. Iyer complainant's husband is astrologer of repute and had advised that the planetary position for the child Shaivi till .6.04.2003 was bad and that there were high chances that bthe child would die. According to Dr Shenoy these material facts were suppressed from the State Commission by the complainant, hence the complaint be dismissed. It is further argued that the family members of the patient tried their level best to extort CC/03/188 9/16 money from Dr Iyer and threatened him on two occasions on 01.04.2003 and 03..4.2003. It is submitted that Dr Ramesh Iyer is M.D. Pediatrics from J.J.Group of Hospitals and the Grant Medical College. He passed D.C.H. in 1992 and FCPS in 1993 and had worked as lecturer in pediatrics at Somaiya Hospital and M.R.C for one year and was instrumental in setting up NICU , having passed Pediatric advanced life support course held by IAP in 1998 . Dr Ramesh Iyer was in private practice for 7 years.
15.Pneumonia is indicated when upper and lower respiratory tracts are exposed to environment dust particles, bacteria, viruses and very rarely fungi enter in the respiratory system and can cause disease of the respiratory system. Thus Pneumonia is caused by germs like bacteria, viruses and sometimes fungi. It affects one or both of Patient's lungs and condition of the patient can range from mild to life-threatening. And it often affects young children and those persons over age of 65 years. There is also walking pneumonia which means the pneumonia may not be severe enough to require bed rest or hospitalization. The symptoms are generally mild enough that a Patient if major can go about his business but may just feel crummy. Anyone can get pneumonia as many germs cause it. It doesn't necessarily mean that a patient have poor health. Normally healthy patient's body prevents these germs from infecting lungs, but sometimes germs overpower - patient's immune system, even if patient's health is good. Warning signs of pneumonia vary from mild to severe depending on patient's age, overall health and the type of germs that caused the infection symptoms like a cough, fatigue, feeling hot and dehydration. But other symptoms patient can have are: High fever, Sweating or shaking chills, Chest pain when patient is coughing or breathing, CC/03/188 10/16 Nausea, vomiting or diarrhea, Patient may Suffer with shortness of breath. Children Specialist Doctor professing higher qualifications, treating such patient of pneumonia, especially a child with history of high fever, must be on guard to examine the patient with regular continuing intervals, note the situations frequently to treat the patient continuously caring for the patient especially child to prevent life threatening situation from occurring. Casual negligent approach can not help patient to win over the decease of pneumonia in such cases.
16.As stated in Para 50 of the written version at the relevant period X ray machine was under the repairs and Bapat Nursing Home itself was under renovation so patient had to be sent out. If this was the case when allergens like dust particles in the hospital could not have been avoided, Dr. Iyer should have referred the Child patient at the beginning itself to some other better Hospital with readily available devices for care of the child patient instead of risking the life of child patient aged about two and half years in such atmosphere adversial to pneumonia patient. Child was taken out for X ray examination and brought back to Hospital without any ambulance facility. Dr.Iyer did not take care to note down in the case papers that he had called close relatives of the patient to explain to them the diagnosis of bilateral pneumonia as the cause of fever and prognosis of the same and the changes in the treatment by antibiotics.
17. Baby Shaivi aged only 2 and half year old child was referred with rashes all over her body , fever and cough on 25.03.2003 at 9 a.m. to Dr Ramesh Iyer by Dr Ganesh Gadiyar, family physician of Complainant. At that time itself in our opinion Dr Ramesh Iyer, professing higher qualifications of mastery and specialty as CC/03/188 11/16 pediatrician ought to have endeavored to take abundant precautions to ensure that the child must be immediately put on recovery path by administration of appropriate medicines at appropriate intervals of time .He ought to have punctually maintained case papers together with nursing notes from time to time about condition of the child and prompt periodical notes as to the medicines administered to the child in his hospital. Notwithstanding the opinion of Civil surgeon and other Doctors namely Dr. Y.K. Amdekar in his affidavit dated 14.10.2003 obtained by Dr. Iyer, and cited by Dr Shenoy to urge that there was no medical negligence on the part of Dr Ramesh Iyer, we can not overlook the committee's detailed observations and conclusions based on examination of case papers and nursing diary from the hospital of the opposite party referred to the committee by the police during their investigation. Dr Amdekar explained the life saving procedure by putting the 18 gauge needle in the pleural cavity via inter costal space to decompress the tension and then placing a proper under water inter costal drain .The procedure could have been followed with consent of the parents of the child patient at proper Hospital with readily available medical treatment and surgical devices for surgical intervention. On 25.03.2003 at 9 a.m. itself the complainant had agreed to emergency treatment or operation by concerned doctors working in the hospital , therefore there can not be a good excuse by Dr.Iyer that there was no written prior consent by the complainant for best and proper emergency procedure at proper hospital. (vide page 161 in record). It was not excusable for Dr.Iyer to discharge the child patient when her condition became serious in his hospital. In stead of seeking best of the available medical treatment elsewhere for her to save her life Dr. Iyer discharged the patient leaving child patient CC/03/188 12/16 to her fate. Complainant was left on her own to approach Nanavati Hospital through her own acquaintance when it was too late for her to save the child . Another excuse is pleaded on behalf of Dr Iyer that Father of Shaivi, child patient, as an astrologer pleaded that planetary influence was bad and would remain till 06th April and refused to give consent for the operation. We cannot exonerate Dr Ramesh Iyer on the basis of such flimsy excuse. In our view once Dr Iyer had accepted the Child patient on 25.03.2003 for medical treatment it was his duty to ensure that best of the medical treatment is accorded for the child at his own Hospital or elsewhere if he so deemed fit, particularly when the prior written consent from the natural guardian of the patient was already obtained in Patient's admission papers while the patient was admitted. What was the standard medical protocol of medical treatment in medical text books in such a case was fact within special knowledge of Dr. Ramesh Iyer and he ought to have followed and established it by acceptable evidence of Doctors and nurses who took care of the patient, without pleading flimsy and unacceptable excuses for to exonerate himself. He could not have discharged the Child patient when her medical condition became serious on the unacceptable plea that relatives of the patient wanted discharge.
18. The term 'Medical negligence' means breach of duty caused by omission to do something which a reasonable prudent man would not do. Consumer Court can hold the Doctor liable if deficiency in service is of such reckless character on the basis of which the Doctor cannot be exonerated. The test is that of a Doctor with reasonable skill, care and expertise and not that of a Doctor with extraordinary, super human skill, judgment or expertise. Learned Advocate for the complainant has made specific averment of CC/03/188 13/16 professional medical negligence as understood above and produced on record expert medical opinion which could be relied upon so as to form nexus between the medical treatment accorded to the Patient and the consequences of the treatment to believe the case of the complainant that there was medical negligence of the doctors as alleged.
19. Allegations of medical negligence are no doubt serious .Complainant has to aver in the complaint and establish that the professional doctor concerned was recklessly negligent in giving the line of the medical treatment that resulted in loss of life for the patient. A qualified Doctor is required to exercise reasonable degree of care and knowledge in the task undertaken. It is true that even with best of the medical treatment sometimes things may go wrong beyond control of the treating doctor. For example if the patient has failed to follow the express instructions from the doctor. A skill differs from doctor to doctor. Merely because some other doctor would have prescribed better treatment is not the reason to hold the treating doctor is liable for medical negligence in service, without the assistance of the unbiased neutral, expert and reliable opinion in evidence.
20. On the scrutiny of leading medical negligence cases in India, certain principles should be taken into consideration while pronouncing the judgment in medical negligence cases.
1. Finding as to Medical Negligence should be guided by the principle of reasonableness of prudent common man and negligence must be averred and established by the complainant in order to claim award of the compensation in certain cases.
CC/03/188 14/162. Medical profession requires reasonable degree of skill and knowledge, so the standard of care in cases of medical professional is generally high and should also be taken into account while giving the judgment.
3. A medical professional can be only held liable for deficiency in service , when the standard of care is reasonably lower than the reasonable care expected from a competent and prudent medical practitioner in that field.
4. When a choice was required to be made between the circumstance when there is higher risk involved to achieve greater success i.e. to save life of the patient and the lesser risk with higher chances of failure, the facts and circumstances of the individual case should be taken into the consideration.
5. No negligence will be attributed to medical professional, when he performs his duty with the utmost care that should be taken, and he had taken all the precautions. Only in cases of gross medical negligence the principle of Res ipsa loquitur would be attracted.
21.Having considered and bearing in mind the principles in the light of the facts and circumstances of this case, particularly detailed observations made by the Committee brought to our notice we are satisfied that no proper and adequate medical care was taken. There were lapses to promptly and fully record the medical treatment given to the Baby Shaivi as there are lacunas in respect of the entries made in the case paper and regular entries in the nursing diary about the treatment accorded to Baby Shaivi aged about 2 and half years. There was negligence in medical treatment constituting deficiency in service due to casualness of approach by Opposite party, want of necessary care and precautions on the part CC/03/188 15/16 of Dr. Ramesh Iyer while he was treating the child patient who was unable to disclose her ailment. Despite renovation of the hospital work going on, Dr Ramesh Iyer ventured to treat Baby Shaivi Bhat aged 2½ years, a pneumonia patient at his own Hospital despite dust and allergens present there due to renovation work in progress as admitted. In addition, Dr. Iyer is blameworthy for professional medical negligence on the basis of sound observations made by the Committee of Government Doctors in the facts and circumstances of the case. Dr.Iyer is answerable to the Mother and close relatives of patient Baby Shaivi Bhat aged only 2½ years for causing her serious medical condition to develop which led to her untimely death and Dr Ramesh Iyer, must therefore compensate for loss the complainant justly and reasonably. We accordingly hold him and his Hospital liable for medical negligence in the treatment of Baby Shaivi, ultimately resulting in her seriousness of health condition and the resultant death.
22. Only child Baby Shaivi aged only 2 and half year old was lost to her parents. In our view it was irreparable loss for them uncompensatable in monetary terms. But then even if we consider the imponderables such as probability of early demise of the child later on, the complainant and her Husband must receive just and reasonable compensation which need to be awarded as token of consolation for lifelong agony which the complainant is suffering trying to fill the vast vacuum created in the life of the complainant and her Husband . The awarded sum together with interest granted, we hope in the facts and circumstances of the case, would be just consolation and adequate compensation payable by the Opposite party.
CC/03/188 16/1623. In the result the complaint is partly allowed as under :-
The Opposite party Dr. Ramesh Iyer and his Hospital is liable for medical negligence in the treatment of Baby Shaivi Bhat, a child aged about 2 and half years and shall be jointly and severally liable to pay compensation in the sum of Rs.10,00,000/- (Rupees Ten lacs only) as Compensation together with interest in the sum of Rs 6% per annum from the date of the complaint till realization . The litigation cost is quantified in the sum of Rs.25,000/- (Rupees Twenty Five Thousand only). Entire amount of the compensation is payable within three months from today failing which the amount due shall carry interest at the rate of 9% per annum on the awarded amount of Rs.10,00,000/-
(Rupees Ten Lacs only) from the date of the complaint.
Pronounced on 19th September, 2016.
[Justice A.P.Bhangale] PRESIDENT [Narendra Kawde] MEMBER