State Consumer Disputes Redressal Commission
Smt. Renu Agarwal vs Jivan Jyoti Hospital on 23 February, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/83/2017 ( Date of Filing : 01 Mar 2017 ) 1. Smt. Renu Agarwal Bareilly ...........Complainant(s) Versus 1. Jivan Jyoti Hospital Bareilly ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 23 Feb 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No. 83 of 2017 Smt. Renu Agarwal, aged about 53 years, W/o Jai Shanker Agarwal, R/o 305-A, Purani GhiMandi, Alamgirganj, Bareilly-243001 ...Complainant. Versus 1- Jeevan Jyoti Hospital situated at K-4, Rampur Garden, Bareilly through Proprietor/ Managing Director. 2- The New India Assurance Co. Ltd., Divisional Office, Meerut, 1 Sotiganj, above Vijaya Bank, Meerut-250001 through its Retional Manager. ...Opposite parties. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri S.K. Sharma, Advocate for the complainant. Sri S.K. Verma, Advocate for OP no.1. Sri Zafar Aziz, Advocate for OP no.2. Date : 3.4.2023 JUDGMENT
Per Sri Rajendra Singh, Member- This complaint has been filed by the complainant Smt. Renu Agarwal under section 17 of the Consumer Protection Act, 1986 for following reliefs:-
1- To direct the opposite party to pay Rs.40 lakh with interest towards loss (Unwarranted Laparoscopic Hysterectomy - Removal of Uterus) and for unwarranted expenses made by the complainant at different hospitals on account of opposite party from Bareilly to Bombay.
2- To direct the opposite party to pay Rs.5 Lacs with interest at the complainant as compensation for physical and mental harassment.
3- To direct the opposite party to pay Rs.30,000 for cost of litigation.
4- To grant any other relief to the complainant which this Hon'ble court deems fit and proper in the interest of justice.
The brief facts of the complainant's case are that, that the complainant came to know through certificate dated 01.10.17 issued by Dr. S.W. Thatta that complainant developed urinary related symptoms from October to 3rd 16 after she underwent hysterectomy That on 06.08.2016 in Jeevan Jyoti Hospital, Bareilly, and prior to that date she had no urological symptoms. In other words there was no need to remove uterus which aggravated the problem of complainant and she became patient of nephrology. The complainant consulted doctor at Jeevan Jyoti Hospital having some problem relating to uterus on 06.08.2016. The complainant was admitted in the hospital on the same date with the diagnosis that she has bulky uterus with Endometrial Hyperplasia and she required Laparoscopic Hysterectomy immediately. Thereafter several tests where conducted in the hospital and Laparoscopic Hysterectomy was done on 06.08.2016 and she was advised to take medicines for seven days. Complaint was discharged from hospital after two days after undergoing Laparoscopic Hysterectomy with certain instructions and asked to come after seven days.
Thereafter on the advice of opposite party, the complainant underwent histopathology at SRL Diagnostic on 13.08.16 and in the report Mild Chronic Cervicitis was diagnosed. Cervicitis is inflammation of the cervix that is the lower end of the uterus that opens into the vagina. In undergoing laparoscopic Hysterectomy and other tests done at SRL Diagnostic and medicines purchased, considerable amount of money was spent. When the complainant felt no relief with the treatment of opposite party hospital she consulted Dr. Sharad Agarwal, MD at Bareilly on 19.09.16 who prescribed certain medicines and suggested Haematology and urine examination which were done on 20.09.16. Dr S Khan of KK Hospital, Bareilly was also consulted who prescribed certain medicines for further treatment on 15.10.16 and also on 20.10.16. At K K Hospital it was noted that currently she had problem of irritating luts and sense of incomplete evacuation. After some time feeling no relief complainant went to Sai Hospital, Stadium Road Bareilly, on 02.12.2016 for further treatment where the DTPA Renal Scan was suggested. For further treatment complainant went to Sir Ganga Ram Hospital, Rajendra Nagar, New Delhi, on 05.12.2016. At Sir Ganga hospital, tests were done and it became clear that Left Kidney showed severally impaired cortical function with prolonged nephrogenic phase. In other words, complainant became the patient of Nephrology. At the Department of Nuclear Medicine &PET CT in Sir Ganga Ram hospital, the function of both kidneys, right and left were evaluated on 05.12.16. In the evaluation left kidney showed severally impaired cortical function with prolonged nephrogenic phase.
Thereafter the complainant went to Bombay Hospital and Medical Centre Mumbai for her treatment as she used to faint during burning micturition, clinical data of complainant was noted. She had undergone Laparoscopic Hysterectomy in August 2016 at Jeevan Jyoti Hospital, Bareilly, and had problem in passing urine in October 2016.
She was diagnosed with left HUM and underwent left PCN on 08.12.16. Complainant was diagnosed with the problem "perfusion to left kidney is reduced". Laparoscopic Hysterectomy done in August 2016 was for removal of the uterus for certain conditions. The fallopian tube and ovaries were also removed. Laparoscopic ally assisted vaginal hysterectomy (LAVH) is a surgical procedure using a laparoscope to guide the removal of the uterus and/or fallopian tubes and ovaries through the Vagina. It is further submitted "perfusion to left kidney is reduced" means act of polling over or the passage of a fluid through the vessels of a specific organ or injection of a fluid into a blood vessel in order to reach an organ or tissues usually to supply nutrients and oxygen is obstructed.
The certificate given by Dr. SW Thatte of Bombay hospital, Mumbai stated that complainant had left ureteric structure with left poorly functioning kidney and has left flank pain and lower urinary tract symptoms since 3-4 months. At Bombay Hospital, Mumbai, treatment was started and several tests were done. In treatment, tests and ICU charges huge amount had to be spent. Ultimately operation for "Removal of Kidney" was done at Bombay hospital. Cystocopy, left RGP, AGP, open simple nephrectomy is very evidently shown in discharge summary dated 28.12.16 Of Bombay Hospital. Cystocopy is a procedure that allows toexamine the lining of bladder and due that carries urine out of the body and nephrectomy is the surgical removal of kidney. The opposite party had wrongly operated the complainant and done Laparoscopic Hysterectomy on account of which the problem relating to kidney developed, and aggravated because of which ultimately one of the kidneys had to be removed. Unnecessarily the complainant had to lose two organs the body, one uterus and other kidney due to medical negligence on the part of the opposite party. Removal of the kidney was the consequence of removal of uterus. If the opposite party had not done Laparoscopic Hysterectomy unnecessarily then no other problem would have arisen and consequential removal of kidney would not have taken place. It is clear deficiency in service and unfair trade practice on the part of the opposite party. The complainant is fully entitled to get compensation for removal of uterus and thereafter for consequential removal of kidney and also for physical and mental harassment. Therefore the complainant respectfully prayed for the above-mentioned reliefs.
The opposite party has filed their written statement in which he has said that the complaint filed by the complainant claiming imaginary and flimsy amount of relief, contradictory compensation is claimed in this case which is evident from the prayer made by the complainant. The complainant is aged about 53 years and is unable to conceive, further the complainant is already having the kids who are grown up and one of them is pursuing the post graduation. The amount of Rs.40 lakhs and Rs.5 lakhs claimed towards compensation is imaginary, flimsy, arbitrary and illegal lacks corroboration. That the complainant is guilty of bypassing the pecuniary jurisdiction of the District Consumer Forum and by claiming inflated imaginary, flimsy and exaggerated relief filed this complaint petition before the original jurisdiction of this Hon'ble Commission which is not maintainable. The alleged certificate dated 01.10.2017 is fabricated, concocted and lacks corroboration, it is pertinent to note here that the certificate relied by complainant in the paragraph under reply is unsigned, not stamped and did not bear the registration number of the doctor who issued it. Further the certificate did not suggest any act of negligence or omission on the part of the opposite party. It is to be submitted that the other certificate is concocted and fabricated document and did not satisfy the test of admissibility to the evidence. The complainant did not implead the person who issued the alleged certificate in the complaint case.
The complainant underwent treatment under various doctors for the treatment of her old problem of kidney, however no doctor is impleaded in this complaint case by the complainant, further it is established from the records that not an iota of expert opinion per evidence available which can suggest that the procedure conducted by the doctors of the opposite party is in derogation of the settled medical norms and against the renowned medical literatures. The complainant in a most illegal and arbitrary manner grossly overvalued her claim in order to bypass the pecuniary jurisdiction of the District Forum. Further bald and frivolous allegations are made in this complaint which is based on the fabricated and concocted documents which do not indicate any deficiency in service or negligence on the part of the opposite party. The opposite party followed the medical protocol and also acted in accordance with established medical procedure in conducting the surgical intervention, which is corroborated by the medical literature that the allegations of the complainant are vague and false.
The patient with complaints of painful Menorrhagia of suffering from last one year approached the opposite party in the first week of August 2016. The patient carried along with her an ultrasonography examination dated 30 June 2016 suggesting bulky uterus with Adenomyosis. The patient was also taking medical treatment for this ailment since no relief was there hence, she herself willing to undertake surgery in order to get the uterus removed. The surgeon examined her per abdominal and found a little bulge over pubes in the examination findings however there was no other positive finding on examination. The patient and her husband were counselled for hysterectomy, as she was willing to get it done laparoscopically, the surgery was planned for 06.08.2016 . One day prior to surgery i.e. on 05.08.2016 she underwent routine laboratory examination and ECG to rule out any illness/medical anaesthetic fitness prior to surgery. The patient was admitted on 06.08.16 in A/C Deluxe room on her choice and surgery started at 4 PM. The patient was placed in head low position with thighs apart lifted of the table to expose private parts. Patient had already been catheterized in ward. Abdominal private parts were painted with aseptic solution and draped with sterile drapes. Pneumoperitoneum was created with CO2 with the help of Verses Needle inserted through supra umbilical port (11 mm). Once the intra-abdominal pressure reached 12 mm, a safety trocar was placed inside the 11 mm sheath through supra umbilical port and telescope with camera inserted through it, in general survey of peritoneal cavity was done with revealed a large sub serous type of fibroid on the left uterine wall and a deep blue coloured medium-sized left ovarian cyst along with a large bulky uterus. There were good amount of adhesions and the fibroid was buried in left broad ligament. Cervical dilation for fixation of uterine manipulator was done. Right - round ligament, fallopian tube and uteroovarian vessels were ligated turn by turn, thereafter right ovary was separated from uterus by its suspensory ligament, right ovary and part of fallopian tube on this side were normal hands had been left in situ. Thereafter left-sided ovary, round ligament and Infundibulo pelvic ligament were dealt with. The ovarian cyst was aspirated through a wide bore needle and debulked. Both anterior and posterior leaves of broad ligament were dealt with, separately on both sides. Special mention here is that the doctors had to struggle hard on left side due to adhesions and presence of fibroid. Meticulous dissection, as per sanctioned steps in lieu to distorted regional anatomy was carried out with harmonic scalpel to leave a bloodless field. Uterovesical peritoneum was then lifted up and separated from left to right so to expose and dissect bladder from endopelvic fascia over the cervix, the bladder was pushed downup to anterior fornix. Both uterine vessels were then exposed for a good length and dealt with harmonic and bipolar forceps on medical side and cut. The two uterosacral ligaments on either sides were divided with harmonic scalpel and then posterior fornix was opened. This opening was enlarged so to proceed on both lateral sides and then to anterior side so to deal with the anterior fornix, thus separating the uterus from vagina. The uterus with uterine manipulator was removed per vaginally. Due to large size of uterus and fibroid it was managed by vertical transaction from below that is vaginally. After delivery of uterus with fibroid per vaginally, closure of peritoneum and vault of vaginal was done from below. Pelvis was irrigated with copious sterile saline so to visualize and oozing pints, a perfect hemostasis was seen to obtained. All saline sucked out.
After full satisfaction the ports were removed an sutured with and skin stapling done. The patient did well in immediate and late post operative period, the urine in catheter was colorless throughout and she passed a good amount of urine in the immediate post operative period (1000ml. from 4 p.m. 6.8.2016 till 6 am 7.8.2016). There was no immediate or late untoward postoperative event, so the catheter was removed after 36 hours of operation and the patient was discharged on 8.8.2016 in fair condition. She was advised to come on 15.8.2016 for stitch removal. She did come on 15.8.2016 for the same, stitch removal was done and she did not present any significant complaints/signs. On 18.8.2016 she came with some bleeding from anal area and pain defecation (passing stool) for which she was given treatment and after that she was lost to follow-up. On this particular day she also brought with her the biopsy report dated 13.8.2016 which said a bulky uterus-12 x 10 x 6 cms, with large fibroid measuring 5.5 x 5 x 4.0 cms, and chronic cervicitis. It is incorrect and wrong that the patient consulted the surgeon for the first time on 6.8.2016 and that she admitted without any knowledge of surgery to be done upon her. The fact lies that the couple was counseled fully, their quarries dealt with in reference to Mennorhagia-excess bleeding in menses. It's treatment by removing uterus surgically, and the failed medicinal treatment that she had undertook. The husband and wife both then signed the informed consent letter under no strain/compulsion. All the test were conducted well before the date of surgery at patient's sweet will i.e. 5.8.2016 and not on 6.8.2016. The entire allegation of negligence is wholly incorrect, wrong and is vehemently and emphatically denied by the opposite party.
It is submitted that the opposite party performed the surgical intervention on the patient in view of the settled medical norms and the established medical protocol were followed by them, the patient was suffering from menorrhagia for last one year and was taking treatment from various doctors with no relief, thus the opposite party were contacted for the treatment of this problem, the prognosis of the treatment were explained to the patient and the husband, they provided consent for the removal of the uterus as the patient is aged 52-53 years and already has kids pursuing post graduation, thus according to the settled medical protocol the procedure of Hysterectomy was performed after taking the consent of both husband and wife. The procedure of Hysterectomy was successfully performed and the patient was discharged in full satisfaction, necessary precautions were advised to the patient to be followed after the post operative period, nevertheless the reports which are submitted by the complainant alongwith the case disclose that even after 2 months of the surgery both the kidneys of the complainant are in normal shape and size. It is vociferously submitted that merely because the complainant alleges that she consulted various other doctors for some problems which are not related to the surgical intervention can make opposite party liable for any deficiency in service. It is reiterated here that the treatment which is rendered to the patient is in accordance with the medical norms and no illegality and irregularity is committed by the treating doctors in performing the surgery on the patient. It is noteworthy to mention that the complainant did not allege any negligence on the basis of treatment taken by her under various other doctors, however, the allegation is made solely on the basis of the alleged fake and concocted certificate dated 1.1.2017 contained at annexure no.10 page no.117, even in this concocted certificate there is no mention that the surgery which is performed by the doctor on the patient is incorrectly done and is not in accordance with the medical norms, further this alleged fake certificate also did not suggest that this problem related to her kidney is due to any negligence in performing the surgery by the doctor. The entire allegations made in the complaint case is after thought and the case is filed before this Hon'ble Commission to extract illegal money from the opposite party.
It is submitted that the documents filed along with this complaint case demonstrates that the patient took treatment from various doctors and hospitals, however, these doctors and hospitals are not impleaded as a party in this case, which establish mala fide on the part of the complainant, moreover the treatment records of the doctor which were taken by the complainant prior to August, 2016 are deliberately and intentionally not filed in this complaint case, it is vehemently submitted that the patient was suffering from menorrhagia for last one year and she was well aware that only treatment is surgical intervention and accordingly the patient approached the opposite party. The treatment which is provided to the patient by the opposite party is according to the standard medical norms and no negligence or breach of duty of care is done by the opposite party. Not an iota of evidence is placed on record suggestive the fact that the treatment which is rendered by the opposite party is wrong and incorrect and is against the settled medical practice, merely the complainant contacted several doctors after several months of the surgery shall not make opposite party guilty of any deficiency in service. It is also evident from the documents filed by the complainant that she was suffering the problem of kidney for last several years and for the treatment she approached various doctors, however in a most illegal and arbitrary manner the complainant prepared the concocted and fabricated documents and is accusing the opposite party for illegally removing the organ which is wholly incorrect and wrong. The alleged letter dated 27.12.2016 is concocted, false, fabricated document and is not admissible in evidence, this fake certificate is not signed by the alleged doctor, neither is properly authenticated by the doctor, apposite is to submit that the letter pad of the hospital is being misused by the complainant for her personal gain, the letter pad of the Bombay Hospital did not bear the registration number nor contains the proper identification, thus this letter cannot be read as evidence in this complaint proceedings.
It is submitted that the complainant has not calculated and valued the cost which she encountered in treatment in Bombay Hospital. It is borne out from the treatment records filed along with the complaint case that the patient was suffering from kidney problem from several years and this is no where related to the surgery performed by the opposite party. It is also established from the documents filed by the complainant that she was treated for the problem which she was suffering prior to surgery performed by the opposite party, however in order to extract illegal money this complaint petition is filed. It is submitted that the opposite party reserves their right to take appropriate legal action against the complainant for defamation and for lodging false and frivolous case before this Hon'ble Commission.
It is submitted that the decision for the removal of the kidney of the patient is the decision of the doctors of the Bombay Hospital and no role can be attributed on the opposite party in this decision making process, it is borne out from the documents contained along with the complaint case that the patient contacted several doctors and perform the tests, however she did not depose faith in any of the doctors and did not follow the advice of the doctors and without referral she contacted several doctors and ultimately went for the removal of the kidney. The procedure adopted by the opposite party is in accordance with the settled medical norms and is also supported by the renowned medical literature, the performance of Hysterectomy by the opposite parties is not doubted or questioned by any of the subsequent doctors to which the patient contacted. It is pertinent to mention here that even the false and fabricated certificates dated 27.12.2016 and 1.2.2017 did not mention this fact, however in order to malign/defame the image of the opposite party this complaint case is instituted making false assertions, it is submitted here that the opposite party shall take appropriate legal action in accordance with the law against the opposite party for maligning the reputation of the opposite party. No injury or loss is suffered by the complainant by the treatment rendered by the opposite party and the disease of the complainant for which surgery was performed by the opposite party is relieved, however it is apparent that the complainant is suffering from the kidney problem for last several years and this problem for which the complainant contacted various other doctors is not in any manner is associated with the surgery performed by the opposite party.
The opposite party is a Senior Surgeon of repute and is a well qualified doctor, Dr. Ajai Bharti. In 1993, hospital started as a small, with only 13 beds primary hospital near Thana Baradari, conceived by the doctor couple, Dr. AjaiBharti and Dr. Anita Ajai who opted to stay in Bareilly and serve the local population. This hospital catered to the medical needs of low to middle income families in the vicinity; providing acute and chronic care, inpatient and OPD, 24 hour pharmacy, laboratory and x-ray services at par with secondary hospitals in the region and at a very effective cost. Armed with knowledge and training from a premiere universities followed by 5 years work experience at Clara Swain Mission Hospital, Bareilly, the two doctors were able to earn the trust and confidence of the patients, drawing patients from surrounding localities also. In 1995, Endoscopic urological procedures were begun and today all types of surgeries, including URS, PCNL, TUR, TUR(P) are being done endoscopically. In1997, the hospital started its second 13 bedded unit at Rampur Garden where it is still running; gradually by 2001 the campus near thana Baradari was closed due to lack of space there. In 1998, the hospital started providing Ultrasonography facilities to its patients.
By 1999, the hospital was using computers for accounting and inventory, management. In 1998, Laparoscopic Gall Bladder surgeries were begun for the first time in Bareilly at JeevanJyoti Hospital and today Dr. Ajai Bharti has more than 5000 lap surgeries to his credit. Presently all types of Laparoscopic abdominal surgery like Gall Bladder, Appendix, Hernia, Hysterectomy, ovarian tumors and ectopic pregnancies etc. are being successfully being performed here. In 2003, a fully equipped 4 bedded ICU was begun. In 2009, the OT complex was renovated and a fully equipped state of art OT complex came into existence; comprising of 2 major operating rooms, a labour room, a minor OT, a 2 bedded recovery room with all types of patient monitors, a doctor's room, a change room and a sterilization unit, with a two level air curtaining inside OT complex (for better sterilization). In 2012, the hospital was renovated to become what it is today; a three story, 38 bed capacity, second level, hospital. Major changes made were:
Improvement of the wards.
Improvement of the Laboratory Additional OPD Clinics Air conditioned waiting area Improvement of the operating room and delivery room Special Holding areas providing ICU care New Emergency room Ultrasound room Labour room New suite rooms The patient was handled with due care and caution and the treatment in accordance with the standard medical protocol was provided to her, the patient primary complaint of being suffering from painful menorrhagia since last 1 year was attended promptly and after explaining the procedure of the Hysterectomy and taking the consent of the patient as well as her husband; surgery was performed, the patient post operative period was uneventful and she recovered from the problem and was discharged in healthy condition, with the advice to be followed, the patient came on 15.8.2016 for removal of stitches and no complain was noted at this time, thereafter the patient with a complain of bleeding from anal area contacted on 18.8.2016 treatment was given by the opposite party, however during this period also no complain of any problem was made to the opposite party, thus the allegation of the complainant that the surgery was performed illegally and unnecessary is per-se incorrect and wrong.
It is pertinent to note that not an iota of evidence is available on record suggestive of surgery performed by the opposite party is incorrect and is contrary to the medical literature and norms, rather the problem for which the patient contacted several other doctors is not related to the surgery performed by the opposite party, it is worth to submit that the patient is a old case of kidney problem and she contacted the doctors for the treatment of her problem which cannot be related to the surgery performed by the opposite party.
We have heard ld. Counsel for the complainant Sri S.K. Sharma, ld. Counsel for the opposite party no.1 Sri S.K. Verma and ld. counsel for the opposite party no.2 Sri Zafar Aziz and perused the entire record.
The primary responsibility of a doctor is to ensure they can provide their patients with the best level of care. A talented doctor can perform these tasks efficiently while practising a range of soft skills, such as effective communication. When considering a career in medicine, it may be helpful to know the basic duties a doctor performs daily.
What are a doctors responsibilities?
There are seven key tasks that make up a doctors responsibilities that most perform as part of their daily working routine. The duties of a doctor may vary depending on where they work, the type of doctor they are and the conditions of the patients they treat that day. While there may be some differences in a doctors primary tasks, outlined below are seven common duties that doctors within any speciality can typically perform. These include the following:
Diagnosing any illness and other conditions A Dr is qualified to diagnose a range of illness, injuries, diseases or pains that a patient may be experiencing. The made in several tests on a patient before they reach their final diagnosis to ensure their decision is accurate. They also want to ensure that they can rule other illnesses out the time it takes for a Dr to make a diagnosis depends on what the ailment is and the severity of symptoms that the patient showing. For injuries, doctors can usually make an accurate diagnosis straightaway, whereas diseases or chronic illness may take a few weeks to Dr to detect.
Planning and conducting a patient's course of treatment following a diagnosis, a doctor may then plan and prepare a course of treatment for the patient. Individuals in this profession use their technical knowledge and medical research skills to find the quickest and most effective form of treatment. This process may include finding suitable medication, providing care for any external wounds or referring the patient to be more specialised doctor.
A doctor typically discusses their recommended treatment course with the patient to ensure that the individual is happy to proceed. If the doctor is treating a child, they may require the parents permission to conduct the treatment plan.
Any stream follow-up care for patients if necessary if a doctor feels they cannot treat a patient effectively, they may refer the patient to a specialist organisation or healthcare provider. This may occur if a patient is experiencing problems with their teeth, eyes or mental health because a dentist, optometrist or psychiatrist is more likely to find the root of the issue.
The doctor may also ask the patient to make a follow-up appointment with them for a variety of reasons. The reasons may be to check the progress of symptoms, run further tests and administer higher or lower doses of medication. They may also ask patients to arrange a further appointment to discuss any blood test or laboratory results. For the Bulls, the doctor may want to redress bandages and thoroughly cleanse the cut to prevent infection.
Consulting with other healthcare professionals during their working day, a doctor may consult with other healthcare professionals that work at their organisation or a specialist unit. A doctor may ask a nurse practitioner to assist them with running tests or consult with a fellow doctor to gain a second expert opinion on the patient's case. If they wish to have a patient admitted to hospital they may communicate with hospital staff via telephone to arrange an appointment on behalf of the patient.
If a patient is experiencing symptoms that are associated with a specific area in medicine, a doctor may contact a specialist unit to consult with a specialist Dr. For example if a patient is complaining of frequent chest pains, a doctor may consult with cardiologist to discuss a suitable treatment plan.
Prescribing medication a doctor is also responsible for prescribing the most effective medicine for a patient's symptoms. They may write a prescription for the patient to take with them to a pharmacy or contact the pharmacy directly. Doctors can prescribe medication to either cure illness or offer relief from symptoms. This medication can take various forms, including tablets, gels, creams aquids.
To ensure the prescribed medication is effective, the doctor may ask the patient to schedule a follow-up appointment. If the medicine has made no improvements to the patient's illness, the doctor can then consider other medications or alternative forms of treatment. It is crucial that a doctor is aware of the patient's allergies or intolerances before prescribing medication.
Staying updated with medical research a skilled doctor requires a wealth of technical knowledge to identify and treat ailments. As technological and medicinal research progresses, it is responsible to offer doctor to show that they are up to date on the latest advancements in the healthcare industry. This includes researching new diseases, understanding the risks and benefits of new medications and learning how to conduct new procedures.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
I solemnly pledge myself to consecrate my life to service of humanity.
• Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
• I will maintain the utmost respect for human life from the time of conception.
• I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
• I will practice my profession with conscience and dignity.
• The health of my patient will be my first consideration.
• I will respect the secrets which are confined in me.
• I will give to my teachers the respect and gratitude which is their due.
• I will maintain by all means in my power, the honour and noble traditions of medical profession.
• I will treat my colleagues with all respect and dignity.
• I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Honble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsaloquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsaloquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santhas III (1995) CPJ 1 (SC) at para 37 that it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Gangulis case (AIR 2010 SC 1162) that charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis. In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Honble Apex Court in Indian Medical Association Vs. V.P. Santha III (1995) CPJ 1 (SC) at para 37 that it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Honble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence.
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vsBoadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence.
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent. This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
DOCTRINE OF RES IPSA LOQUITAR The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim.
1. The injury caused to the plaintiff shall be a result of an act of negligence.
2. There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
3. The defendant owes a duty of care towards the plaintiff, which he has breached.
4. There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur.
The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendants burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesnt necessarily mean that someones negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendants negligence resulted in the plaintiffs injury. Sometimes, direct evidence of the defendants negligence doesnt exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendants negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiffs attorney argued that the facts spoke for themselves and demonstrated the warehouses negligence since no other explanation could account for the cause of the plaintiffs injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendants negligence caused the harm in question:
• The event doesnt normally occur unless someone has acted negligently;
• The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and • The type of negligence in question falls with the scope of the defendants duty to the plaintiff.
As mentioned above, not all accidents occur because of someone elses negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, its a piece of shared human knowledge that things dont generally fall out of warehouse windows unless someone hasnt taken care to block the window or hasnt ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent. The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff cant prove by a preponderance of the evidence that the defendants negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendants negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeons negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesnt fall within the scope of that duty, then there is no liability.
For example, in many states, landowners dont owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendants action or inaction and that wouldnt normally occur in the absence of negligence, res ipsa loquitur wont establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendants negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiffs own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiffs prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can.
Ng Chun PuiVs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. MarkLuney and Ken Opliphant, Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 In A.S. Mittal & AnrVs State Of UP &Ors , AIR 1979 SC 1570, the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth Rs.12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not ave occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
• Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
• Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
• Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
• Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
• Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
• Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. • Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no" and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. LaxmanBalkrishna Joshi Vs. Dr. TrimbakBapuGodbole and Anr. [1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Sahavs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. KunalSaha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI) on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (BaidyanathHalder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No.1727 of 2007) in the Hon'ble Supreme Court. It would appear that even before the said appeal was filed before the Hon'ble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos.1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Hon'ble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two super speciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no.1 to 4 to the complainant in the following manner:
(i) Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation].
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation.
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default.
Now we come to the facts of present case. When in this case any negligence has been shown by the opposite party or not.This in a case of Laparoscopic Hysterectomy. The complainant was admitted to the hospital on 06.08.2016 and she was diagnosed as a case of bulky uterus with Endometrial hyperplasia and she required laparoscopic hysterectomy cat that exactly.
What is endometrial hyperplasia?
Endometrial hyperplasia is when the lining of your uterus (endometrium) becomes too thick. Your endometrium is the lining that you shed during your menstrual period. It's also the tissue that a fetus grows into during pregnancy. In some women and people assigned female at birth (AFAB), endometrial hyperplasia can lead to endometrial cancer, a type of uterine cancer.
What are the types of endometrial hyperplasia?
Healthcare providers classify endometrial hyperplasia based on the kinds of cell changes in your endometrial lining. Some types of endometrial hyperplasia greatly increase your risk for cancer and others don't.
Types of endometrial hyperplasia include:
• Simple or complex endometrial hyperplasia (without atypia): This type of endometrial hyperplasia has normal-looking cells that aren't likely to become cancerous ("without atypia" means less likely to become cancer). This condition may improve without treatment or your provider may recommend treatment with hormones.
• Simple or complex atypical endometrial hyperplasia (with atypia): If the type of endometrial hyperplasia is "atypical" or is "with atypia" it has a higher chance of becoming cancer. Without treatment, your risk of endometrial or uterine cancer increases.
Your healthcare provider may use the terms simple and complex when they classify your condition. Simple and complex refer to the types of patterns they see when they look at your cells. Be sure to discuss any questions and concerns you have about your diagnosis with your provider.
How common is endometrial hyperplasia?
Endometrial hyperplasia is rare. It affects approximately 133 out of 100,000 people AFAB. It most commonly occurs in people who are transitioning to or just completed menopause (when you stop getting a menstrual period).
SYMPTOMS AND CAUSES What are the symptoms of endometrial hyperplasia?
People with endometrial hyperplasia may experience:
• Abnormal menstrual bleeding or bleeding between periods.
• Short menstrual cycles (less than 21 days).
• Heavy menstrual bleeding.
• Bleeding after menopause.
• Not having a period at all (amenorrhea).
A lot of these symptoms are common in people transitioning to menopause. Transitioning to menopause often means erratic periods or skipping periods and irregular bleeding. Talk to your healthcare provider about your symptoms so they can determine if checking for endometrial hyperplasia is necessary.
Does endometrial hyperplasia cause pain?
It's possible that it can cause abdominal/pelvic pain or pain during intercourse (dyspareunia). However, abnormal bleeding is the most common symptom.
What are the most common causes of endometrial hyperplasia?
People with endometrial hyperplasia produce too much estrogen and not enough progesterone. These hormones play essential roles in menstruation and pregnancy. During ovulation, estrogen thickens your endometrium, while progesterone prepares your uterus for pregnancy. If conception doesn't occur, progesterone levels drop. The progesterone drop triggers your uterus to shed its lining as your menstrual period.
People who have endometrial hyperplasia make little, if any, progesterone. As a result, your uterus doesn't shed its endometrial lining. Instead, the lining continues to grow and thicken. The cells that make up the lining can grow close together and become irregular.
What are risk factors for endometrial hyperplasia?
People in perimenopause or menopause are more likely to have endometrial hyperplasia. It rarely occurs in people younger than 35. Other risk factors include:
• Certain breast cancer treatments (tamoxifen).
• Diabetes.
• Early age for menstruation or late onset of menopause.
• Family history of ovarian, uterine or colon cancer.
• Gallbladder disease.
• Hormone therapy using only estrogen when you still have a uterus.
• Never being pregnant.
• Obesity.
• Polycystic ovary syndrome (PCOS).
• Smoking cigarettes.
• Thyroid disease.
• Long history of irregular or absent menstruation.
• History of pelvic irradiation (radiation on your pelvis).
• Compromised immune system due to autoimmune disease or medications.
What are the complications of endometrial hyperplasia?
All types of hyperplasia can cause abnormal and heavy bleeding that can make you anemic. Anemia develops when your body doesn't have enough iron-rich red blood cells.
Untreated atypical endometrial hyperplasia can become cancerous. Endometrial or uterine cancer develops in about 8% of people AFAB with untreated simple atypical endometrial hyperplasia. Close to 30% of people AFAB with complex atypical endometrial hyperplasia who don't get treatment develop cancer.
DIAGNOSIS AND TESTS How is endometrial hyperplasia diagnosed?
Many conditions can cause abnormal uterine bleeding. To identify what's causing your symptoms, your healthcare provider may order one or more of these tests:
• Ultrasound: A transvaginal ultrasound uses sound waves to produce images of your uterus. The images can show if your uterine lining is too thick.
• Biopsy: An endometrial biopsy removes tissue samples from your uterine lining. Pathologists study the cells under a microscope to confirm or rule out cancer.
• Hysteroscopy: Your provider uses a thin, lighted tool called a hysteroscope to examine your cervix and look inside your uterus. Your provider may perform this procedure along with a dilation and curettage (D&C) or biopsy. With hysteroscopy, your provider can see abnormalities within the endometrial cavity and take a biopsy of any suspicious areas.
MANAGEMENT AND TREATMENT What is the treatment for endometrial hyperplasia?
Treatment for most cases of endometrial hyperplasia involves taking progestin. Progestin is the human-made version of progesterone, the hormone your body is lacking. Progestin comes in many forms:
• Oral progesterone therapy (you swallow a pill).
• Intrauterine device (IUD) containing progesterone.
• Injection (Depo-Provera).
• Vaginal cream or gel.
Your healthcare provider may recommend a hysterectomy to remove your uterus if:
• Your condition worsens or cancerous cells develop.
• Your condition doesn't improve with progestin treatment.
Should I have a hysterectomy for endometrial hyperplasia?
A hysterectomy is usually not necessary for treating endometrial hyperplasia. Most people respond well to progestin treatment. If your risk for uterine cancer is high and your healthcare provider diagnoses you with complex atypical endometrial hyperplasia, hysterectomy may be a possible treatment option.
PREVENTION How can I prevent endometrial hyperplasia?
Certain steps may reduce your chances of developing endometrial hyperplasia:
• Use progesterone along with estrogen after menopause (if you use hormone therapy).
• Consider taking a birth control pill with estrogen and progestin if you have irregular periods.
• Quit smoking.
• Maintain a weight that's healthy for you.
OUTLOOK / PROGNOSIS What is the outlook for people who have endometrial hyperplasia?
Endometrial hyperplasia responds well to progestin treatments. A typical endometrial hyperplasia can lead to endometrial or uterine cancer. Your healthcare provider may recommend more frequent ultrasound exams, biopsies or a hysterectomy to eliminate the chances of it turning into cancer. Your provider will base this recommendation on your diagnosis and health history.
Does endometrial hyperplasia lead to cancer?
No, not always. The risk of developing cancer ranges anywhere from 8% to 30% depending on the type of endometrial hyperplasia you have. Only certain types of endometrial hyperplasia lead to cancer. Your healthcare provider can discuss the type you have and recommend the best treatment based on your health history and your overall risk for cancer.
LIVING WITH When should I see my healthcare provider?
You should call your healthcare provider if you experience:
• Heavy or abnormal bleeding.
• Vaginal bleeding after menopause.
• Painful cramping (dysmenorrhea).
• Painful urination (dysuria).
• Painful intercourse (dyspareunia).
• Pelvic pain.
• Unusual vaginal discharge.
• Frequently missed menstrual periods.
What questions should I ask my healthcare provider?
If you have endometrial hyperplasia, you may want to ask your healthcare provider:
• What type of endometrial hyperplasia do I have?
• Am I at increased risk for endometrial or uterine cancer? If so, how can I lower that risk?
• What's the best treatment for the type of endometrial hyperplasia I have?
• What are the treatment risks and side effects?
• Are my family members at risk for developing endometrial hyperplasia? If so, what can they do to lower that risk?
• What type of follow-up care do I need after treatment?
• Should I look out for signs of complications?
FREQUENTLY ASKED QUESTIONS What is the most common age to get endometrial hyperplasia?
Endometrial hyperplasia tends to occur in people who are transitioning to menopause or who have gone through menopause. The average age of menopause is 51 years old. People between 50 and 60 are most likely to develop endometrial hyperplasia.
A note from Cleveland Clinic Endometrial hyperplasia is a condition that causes abnormal uterine bleeding. These symptoms can be uncomfortable and disruptive. Many people find relief through progestin hormone treatments. People who have atypical endometrial hyperplasia have a higher risk of developing uterine cancer. A hysterectomy stops symptoms and eliminates cancer risk. Talk to your healthcare provider about the best treatment for you.
So the suggesting of laparoscopic hysterectomy is, in the present circumstances was perfect and according to treatment plan. The patient also having some mild chronic cervicitis. The procedure adopted by the opposite party - 1 has been mentioned in the written statement in detail. Step-by-step care taken at every stage during laparoscopic hysterectomy. The patient was discharged after 36 hours of operation. After discharge from hospital she came 15.08.2016 for removal of stitches. Thereafter he came on 18 August 2016 when some problem of bleeding from anal area for much she was given treatment. It is also clear that the patient was suffering from the problem of kidney for last several years and for its treatment she visited many doctors were here she came for laparoscopic hysterectomy which has been done. During operation uterus was removed and fallopian tube and ovaries were also removed. It is done as per need during operation if the surgeon finds that removal of fallopian tube and ovaries are also necessary with the removal of uterus, they don't take any consent form that and do their best to save the life of the patient.
After discharge from opposite parties hospital, she went to various places and ultimately went to Bombay Hospital. In December 2016 she was reported "left kidney shows severally impaired cortical function with prolonged nephrogenic phase (Post); right kidney shows non obstructed pelvic dilatation with good cortical function". How can this impression we linked with the laparoscopic hysterectomy. The complainant has filed a certificate by Dr SW Thatte of after dated 01.01.207. There is no specific investigation report or any expert opinion that the damage in kidney occurred due to laparoscopic hysterectomy. In some cases of laparoscopic hysterectomy, any part may be affected but as far as this case is concerned, the complaint was already under the treatment of kidney for many years. So in this case we don't find any negligence or deficiency in service on the part of the opposite party no.1. Therefore we are of the opinion that in the present case there is no evidence to establish the negligence of the opposite party no.1. The complaint case is liable to dismissed.
ORDER The complaint is dismissed.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member JafRi, PA I Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER