State Consumer Disputes Redressal Commission
Mange Lal Rustogi vs Rohini Hospital on 1 May, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 01-05-2006 Complaint Case No. C-19/94 (1) Shri Mange Lal Rustogi Complainant No.1 Through Mr. G.D. Rustgi, Advocate. (2) Smt. Gyan Wati Complainant No.2 Both R/o B-6/238, Sector 5, Rohini, Delhi-110085. Versus (1)Rohini Hospital Opposite Party No.1 Through Mr. Bhupinder Mehtani, Advocate. (2) Dr. S. Rajan Opposite Party No.2 Rohini Hospital, Sector 1, Rohini, Delhi-110085. (3) Dr. Anil Johar Opposite Party No.3 Pocket D15, Sector 7, Rohini, Delhi-110085. (4) Dr. Ms. Madhu Rajan Opposite Party No. 4 156/Pocket OO, Amrapali, Sector 1, Rohini, Delhi-110085. CORAM : Justice J.D. Kapoor - President Ms. Rumnita Mittal - 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, PRESIDENT (ORAL) A young man of 24 years old died on the operation table when he was taken to the nursing home/hospital of the opposite party for treatment of appendicitis. Through this complaint arising from the medical negligence compensation of 10,00,000/- with 24% interest due to deficiency and negligence on the part of the opposite parties has been sought. It is unfortunate that the complaint was filed in the year 1994 and has come up before us today.
2. Facts giving rise to this complaint as brought out by the complainants who are parents of the deceased, in brief, are as under:-
3. On 11th June 1993 the deceased had some stomach ache and was taken to the OP/hospital being run under the name of Rohini Hospital at about 7.30 P.M. Dr. S. Rajan (opposite party No.2) examined the patient and diagnosed that he was suffering from appendicitis and advised operation on 12th June, 1993. A sum of Rs. 1,000/- was paid on the same day as part payment out of total sum of Rs. 3,500/- quoted by opposite party No.2 towards room rent and medical expenses.
4. In the morning of 12.6.1993 the patient was feeling no stomach ache and Dr. S. Rajan was told accordingly but Dr. S. Rajan still recommended that the patient has to be operated for appendicitis on 12-6-1993 and scared the patient and his family members that if appendicitis operation is not conducted on 12-06-1993 the appendicitis may burst and may be fatal for the patient. However, Dr. S. Rajan and Dr. Nadhu Rajan told the family members of the patient that they should not worry as the Rohini Hospital is well-equipped to undertake such minor operations as that of appendicitis wherein it was poorly equipped and there was utter lack of operational facilities.
5. In the meanwhile on 11-6-1993 and 12-06-1993 Dr. S. Rajan and Dr. Madhu Rajan got the patient examined at Pooja X-Ray & Diagnostic Centre, A-625, Avantika, Sector 2, Rohini, Delhi-110085, and obtained Haematology, Urine-analysis and blood chemistry reports and thereafter they with assistance of the opposite party No.3/Dr. Anil Johar operated the patient at Rohini Hospital on 12-6-1993 at about 14.30 hours. At about 17.00 hours Dr. S. Rajan came out and informed the relatives waiting outside that the patient has been operated upon and was in a good condition. Soon again Dr. S. Rajan entered the operation room and at about 17.30 hours came out to inform the family members of the patient that the condition of the patient was deteriorating and asked the family members of the patient to bring life saving injections EFCORLIN and DOPAMINE from the market. The family members of the patient got shockingly suspicious and peeped through the door of the operation room and were shocked to see that the opposite parties No. 2 to 4 were pressing the chest of the patient with their palms, and at about 17.45 hours on 12-06-1993 the opposite parties No. 2 to 4 declared to the family members of the patient that the patient has died on the operation table.
6. An FIR was lodged with the Mangolpuri Police Station, Delhi on 12-06-1993 at 8.20 P.M. in respect of the death of the complainants son at the Rohini Hospital and the Mangolpuri police took the dead body in its custody and carried it to Civil Hospital Delhi for post mortem examination which was conducted on 13-6-1993 at the Civil Hospital.
7. According to the complainants deceased was a Matriculate with a Diploma in Computer Operations who died in the prime of his youth only due to the sheer deficiency in the medical services and neglect of the opposite parties leaving the complainants/parents and other family members with life-long wailing apart from losing the prospective comforts of financial assistance and other services which a young enterprising son as the deceased could have rendered.
8. Composite reply was filed by all the opposite parties. At the outset they have pleaded that false and misleading facts have been stated in the complaint. Perusal of their reply shows that they have even denied that a sum of Rs. 1,000/- was paid on 12th June 1993 as part payment out of a total sum of Rs. 3,500/- as quoted by the opposite party No. 2 towards room rent and medical expenses as according to them no money was ever paid by the complainants to any of the opposite parties. The OP-Dr. S. Rajan also denied that on 12th June 1993 the deceased was feeling no stomach ache. He further pleaded that death of the deceased did not occur on 12th June 1993 during the course of operation nor due to negligence or absence of reasonable care, lack of skill of the OP No. 2 to 4 or lack of operational facilities at the Rohini Hospital.
9. OP further pleaded that there was no negligence on the part of the OPs as all the three doctors were competent enough to carry out the operation and there were adequate facilities in the Hospital . That the death of the deceased did not occur during the course of operation as operation was completed by 17.00 hrs and family members of the patient were informed about that. According to them the deceased died because of known complication of abdominal surgery in obese patients namely massive pulmonary embolism and could not recover even with the best treatment given to the patient. This diagnosis of massive pulmonary embolism was later on confirmed in the post mortem report which stated a blunt darkened cylindrical embolus of size 1-1 x 1 long was found completely blocking the main pulmonary trunk.
10. Besides these the OPs have heavily relied upon the judgment of criminal court where prosecution for criminal offence of negligence against the OPs and the doctors was launched and the court came to the conclusion that it was not a case of criminal negligence as envisaged by section 304 A of the IPC.
The perusal of the judgment shows that the Magistrate acquitted the OPs mainly on the basis of the report of PW-7.
11. We have perused the judgment which was based upon the post mortem report. According to them the deceased was heavily built and obese and the appendicitis of the deceased was found removed and that a thrombus may not be detectable easily ante-mortem and 50% of the cases where there is a definite history suggestive of deep wound thrombus no embolism was found. In other 50% cases embolism could be detected in autopsy i.e. after death.
However, in the cross examination he stated that after examination of body of the deceased he did not find anything to suggest that the appendicitis operation was conducted on the deceased by the OPs without following the prescribed procedure. He did not have any personal knowledge nor had he treated or seen the deceased and in his view the concerned surgeon who had taken the task of operation might have ascertained this fact and was the best person to determine any medical aspect.
12. It is pertinent to mention here itself that acquittal of a doctor in a criminal case has no relevance so far as the case under the Consumer Protection Act, 1986 is concerned. Criminal case is that of a criminal negligence for which the standard of proof is altogether different. It entails penal action. So far as the proceedings under Consumer Protection Act are concerned these are civil proceedings and are independent and in addition to and not in derogation of law for the time being in force and are in the form of compensation as to the loss or injury suffered by the consumer due to the negligence on the part of the OP which includes the medical negligence also.
13. The main plank of defence of OPs is that the deceased was obese and therefore was susceptible/prone to various diseases arising out of the problems of obesity which includes cardiac arrest, pulmonary embolism and other related complications. It is also a matter of record that the deceased died because of blunt darkened cylindrical embolus of size 1- 1 X 1 and was found completely blocking the main pulmonary trunk of the deceased. According to the counsel for the OP the successful removal of the appendicitis showed that the operation was successful and the absence of any side effect or any kind of injury or complications in the body of the deceased leads to the conclusion that the OP took all due care or diligence in operating the deceased and the death was not because of the operation carried out by the OP but due to the reason referred above.
14. Counsel further contended that the fact that the operation was successfully carried out is corroborated from the post-mortem report which states that stitches on the operational wound are ante mortem implying therein that the operation was successful and the deceased died thereafter which clearly negates the claim of the complainant that the deceased expired during operation due to the negligence of the OP.
15. On the contrary the complainant has produced the death certificate given by Dr. S. Rajan of OP-Institute which clearly states that the patient died due to Cardiac Respiratory Arrest undergoing appendicitis on OT Table.
16. We would first deal with the concept of medical negligence in context of the Consumer Protection Act, 1986 (hereinafter referred as the Act) as case of negligence arises from the definition of deficiency in service provided by Section 2(1)(g) of the Act. Deficiency as defined by Section S(1)(g) means :-
any fault, imperfection 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.
17. Now the question arises as to what are the tests or criterion to adjudge medical negligence. For the sake of brevity and to avoid repetitive views of Supreme Court and other Courts we would refer to leading cases on the subject.
18. Way back in the year 1957 English Judges enunciated test as to whether there has been negligence or not in Bolams case reported as (1957) 2 All ER 118, 121 D-F Bolam Test came to be known through the decision delivered in this case as the appellants name happened to be Bolam and 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 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)
19. Presumably because of the persuasive value of this decision our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence.
Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. These 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.
20. There is a distinction between criminal medical negligence and medical negligence simplicitor as in the former case the act should be rash and negligent like leaving foreign object in the body during operation or such like things whereas medical negligence involves element of incompetence and taking up a case which a Doctor was not competent or qualified to handle and if he was qualified he should have either done or failed to do something which no medical professional would have done.
21. As is apparent there is unvarying judicial unanimity to seek answer to the following queries while adjudicating medical negligence or otherwise:-
(i) Whether the treating doctor possessed all the requisite skill which he professed to have possessed?
(ii) Whether he had exercised the ordinary skill of ordinary competent man exercising that particular skill as it is not possible for every professional to possess the highest level of expertise or skill in that branch which he practices?
(iii) Whether he has done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary sense and prudence would have done or failed to do?
(iv) Whether the risk taken by the Doctor was of such a nature that injury which resulted was most likely imminent?
22. Before testing the treatment given by OP on the anvil of aforesaid criterion of medical negligence, let us have the comprehensive view of the matter.
23. For our purpose the only question that requires to be determined is whether the surgeon who operated the deceased did not follow the prescribed procedure and was competent enough to operate the deceased and due to not following the procedure or negligence during the operation and post operative period resulted in the death of the deceased.
24. Appendicitis is an illness in which the appendix is infected and is painful and usually needs to be removed by an operation. Embolism means a bubble of air, a lump of hardened blood or a small piece of fat which causes a blockage in a tube carrying blood around the body. Thrombus means a blood clot formed within a blood vessel and remains attached to its place of origin. A thrombus may not be detected easily ante mortem. In 50% of the cases where there is a definite history suggestive of deep vein thrombosis no thrombus is found. In other 50% cases when there is no history of deep vein thrombosis thrombus could be detected only in autopsy i.e. after death. In majority of deaths due to pulmonary embolism, the death is sudden.
Pulmonary embolism is a kind of obstruction of pulmonary artery and it is something, which can not be foreseen or taken guard against, and it leads to sudden death. Medical literature shows that the following factors lead to pulmonary embolism:-
(a) Obesity
(b) Fracture of long bones
(c) Prolonged Stasis/Prolonged Lying Down especially with bed ridden patients.
(d) Abdominal Operations.
25. The record of the hospital shows that the doctor who had operated upon or treated the patient had never conducted such an operation prior to that as was stated by her in the interrogatories. Under Section 3 of the Delhi Nursing Home Registration Act no nursing home can admit a patient for operation or any indoor treatment whatsoever, unless it is registered under Act and the definition of Nursing Home in Section 2 clause (4) is that Nursing Home means that where the patients are admitted for indoor treatment or operation and further Rule 13 directs there-under clearly, that the owner of the nursing home will furnish the death certificate within 24 hours of the occurrence of the death and in this case the certificate was issued after 21 days inspite of several visits.
26. As is apparent from the facts of the case the deceased was diagnosed as the patient of appendicitis. It has been admitted by the OP that the patient had potential risk factor because of his obesity and this fact was known to the operating surgeon and therefore it cannot be said that he was taken by surprise during the operation. The delay in issuing the death certificate raises suspicion and doubt that the doctor was hob-nobbing with the other doctor who was to conduct the post-mortem and give the cause of death.
27. The aforesaid inference is derivable from the circumstance that the doctor who conducted the post-mortem gave the cause of death as pulmonary embolism whereas the cause of death shown in the death certificate issued by the Nursing Home was cardiac respiratory arrest. In para 8 of reply the OP has clearly admitted that the deceased was quite alright after the completion of the operation but in the same breath they had stated that the patients condition started deteriorating and he was shifted to the recovery room. Secondly if the OPs were sure of the malady by which the patient was afflicted and which endangered the life of the patient and operation was fraught with that unavoidable risk, then why the operation was done if they felt diffident of getting success in the operation and why the patient was not shifted to some better equipped hospital. Thirdly, the cause of death given in the F.I.R. does not say that the patient died of pulmonary embolism and the Forensic Report also does not say that the patient died of pulmonary embolism.
28. Taking over all view of the facts and circumstances of the case, we hold the OPs guilty of medical negligence jointly and severally and award compensation of Rs. 2.50 Lacs. The above amount shall be paid within one month.
29. Complaint is disposed of in aforesaid terms.
30. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
31. Copy be sent to all the District Forum.
32. Announced on the 1st May, 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj