State Consumer Disputes Redressal Commission
L.K. Indnani vs Indraprastha Apollo Hospital on 26 April, 2007
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: 26-04-2007 Complaint Case No. C-300/2001 Dr. L.K. Indnani, Complainant S/o Late Shri K.D. Indnani, In person. R/o D-272, Sarvodaya Enclave, New Delhi-17. Versus Indraprastha Apollo Hospital, Opposite Party Sarita Vihar, Through Mathura Road, Mr. Praveen Kumar, New Delhi-44. Advocate. 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) On account of medical negligence on the part of the OP resulting in death of mother of the complainant, the complainant has sought compensation of Rs. 19,77,227/-. Allegations of the complainant, in brief, are that his mother was admitted in Department of Cardiology, Safdarjung Hospital on 17-11-1997 and was diagnosed to be suffering from unstable Angina and Hypothyroidism.
The Echo-cardiogram was done on 18-11-1997 and Ejection fraction was found to be 68% by the Safdarjung Hospital.
Thereafter the specialist of the Hospital referred the case to Apollo Hospital for further treatment.
2. That the deceased was admitted with the OP on 24-11-1997 evening. The CABG operation took place on 26-11-1997 morning. On 29/30-11-1997 she was shifted to the ward. In the ward, she was made to walk a little but she developed drowsiness, sweating and blackening of face leading to collapsed state, therefore, she was shifted back to ICCU and was put on ventilator on 01-12-1998 and after 3-4 days she was again shifted to the ward. Again the same problem repeated. Then she was shifted to ICCU and was put on ventilator.
This process was repeated for four to five times. It is alleged that all these problems happened due to wrong diagnosis and wrong medical treatment by the OP. Since due care and correct diagnosis had not been given to the patient prior to the operation and after the operation she died later on due to Mycardial Infauction (M.I.) Heart Failure.
3. That there has been a negligence, on the part of the Doctors of Apollo Hospital as hereunder:-
Firstly : The cause of the patients death was Myocardial Infauction (M.I.) i.e. Heart Failure as per the death certificate (Annexure A-2), there could be two possibilities:
(A) The Respiratory Failure due to the Pulmonary Thrombo Embolism resulted into the Congestive Heart Failure (CHF).
4. That the selective collapse of a single lobe cant be due to poor respiratory efforts of the patient, as was mentioned by the Doctors of the OP, rather it is vice versa i.e. selective collapse of the lower lobe of right sided lung can result into decreased respiratory efforts by the patient. For the above reasons, the OP neither correctly diagnosed the patient nor gave proper treatment to the patient.
5. While denying the charge of wrong diagnosis or wrong treatment resulting in the alleged death of the deceased, the OP has come up with the following pleas:-
(i) That the patient was referred to the OP-Hospital from Safdarjung Hospital for coronary angiogram.
Immediately due tests and investigations were carried at the OP-Hospital where she was shifted to the Intensive Care Unit for intensive monitoring and proper care. As the angiogram report suggested the need for an urgent Coronary Artery Bypass Graft (CABG), the patient was referred and advised to undergo surgery at the OP-Hospital. Steps were taken to establish the condition of the patient before the operation.
Before the patient could be operated upon, she developed bradycardia. She was immediately attended to by Dr. Raman Puri and a Temporary Pacemaker Insertion (TPI) was done. The patient was also attended to by Dr. Mandeep Bajaj (Endocrinologist) to manage her hypothyroid status. Thus, the patient was operated upon only after achieving clinical stability (as much as the critical conditions of the patient are allowed.
(ii) That the angiogram of the patient warranted the use of three bypass grafts. Accordingly, a three graft Coronary Artery Bypass Graft (CABG) surgery was done on the patient on 26-11-1997. A terminal Hot Shot in cardioplegia was given as a safety measure for myocardia protection.
(iii) That the complainant was duly briefed about the exact condition from time to time. Further that Fibroptic bronchoscopic examination of the patient showed inflammation of the whole right bronchial tree with retention of secretions. At the time of discharge, the patient was haemodynamically stable. Her blood gases were within normal limits with BIPAP support and all surgical wounds were healed by primary intention. In the discharge summary of the patient it was clearly stated that there was right lower and middle lobe collapse in respect of the patients lung.
(iv) Post operatively the deceased patient had decreased respiratory efforts which led to respiratory distress and she had to be incubated and put on a ventilator for long time. The blood PCO2 was always on higher side. The deceased was discharged on 16-12-1997 when her condition was stable and her blood gases were on normal level but she required BIPAP support. Later on the deceased was admitted in Safdarjung hospital and she died on 17-01-1998.
(v) That the complainants contention that thromboembolic episode resulted in death of the patient has not been proved, as the Batra Hospital perfusion ling scan report by nuclear medicine department only indicates a low/intermediate possibility for presence of pulmonary embolism. Further the report and study is incomplete as a sumultaneious ventilation scan was not done which is normally a standard procedure in such cases when trying to diagnose thromboembolic disease. Thromboembolic disease can be diagnosed with some degree of confidence only if the scan is reported as high probability. That there was good evidence that the patient had partial right lung collapse with consolidation during her postoperative period. This was seen on chest X-ray and further confirmed by Bronchoscopy which showed narrowing of right bronchial tree (breathing tubes) associated with swelling and inflammation of mucosa with excessive secretions which were sucked out during the bronchoscopy procedure which was both diagnostic and therapeutic. Subsequent x-rays showed some improvement in the lung collapse which was expected to improve over time after antibiotics had taken their full effect. The bronchoscoy findings further confirmed that the patients respiratory troubles were due to retention of secretions and lung infection rather than thromboembolic disease which was not present during her stay at Apollo hospital and therefore there was no need to treat her for thromboembolism whose treatment itself can be complicated with bleeding complications.
(vi) That it is settled principle that if a patient does not survive or suffer a permanent ailment despite the patient being attended to with due care, skill and diligence in treatment, the concerned hospital, attending doctors and nurses cannot per se be held guilty of negligence. Further that under section 14 (1)(d) of the Consumer Protection Act, 1986, compensation can be awarded to the complainant only if it is proved that there has been negligence or deficiency in service on the part of the opposite party which has directly resulted in loss or injury being caused to the complainant. No negligence and/or deficiency in service on the part of the OP-Hospital, attending doctors, nurses and staff can be attributed.
6. The aforesaid rival claims of the parties boil down to the point as to what was cause of death of the patient. In this regard the case summary prepared by the OP needs to be reproduced and is to the following effect:-
Her immediate post operative was smooth. But she required little longer ventilation and she was weaved off from ventilator on 2nd P.O. day. She was recovering well and all her body system were within normal limits. However, her CXR showed Rt. Lower lobe collapse. Her coughing efforts and respiratory efforts were not good in spite of physiotherapy.
She became breathless on 5th P.O. day and she was instable and ventilated for 2 days. She was excubatal but again required incubation 2 days later. She somewhat recovered and was shifted to ward and was alright for 2 days then again she became breathless and was incubated again and shifted to ICU (09-12-1997). Now for last 48 hrs she is on ventilation and we are planning to excubate her tomorrow morning. Bronchoscopy done yesterday showed Normal Lt Bronchial tree. Rt. Bronchial tree showed inflamatted and swollen bronchial tree throughout it, narrowed lumen i muiosal oedema. Latest EXR showes clear lt. Lury, heart shadow i in normal limits Rt. Lower lobe of lury is collapsed. Ultrasound of chest showed no fluid on Rt. Side. All her parameters are within normal limits and she is in perfect hemodynamic stauts. She is planned for extubation tomorrow morning.
7. Learned counsel for the OP has mainly contended that her x-ray showed that she was suffering from right partial lung failure and not from the pulmonary embolism and therefore there was no question for treatment for pulmonary embolism.
8. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
9. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
10. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & 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. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
11. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
12. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence.
The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
13. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
14. In our view before operation the Ejection Fluctuation was 68% at Safdarjung Hospital (Annexure A) but in the discharge summary it is mentioned as 40% and later on it increased to 55% and such a fall in the ejection fluctuation from 68 to 55 was solely due to the wrong diagnosis and faulty treatment in as much as OP adopted old practice of venus graft whereas ordinarily anterial graft should be used and secondly the plea that she was suffering from right partial lung failure and not from pulmonary embolism is difficult to accept.
Pulmonary embolism means that clot was found in the lungs and the lungs were not able to function properly and this became the main cause of the death. The claim of the OP that it was due to lung failure is incorrect as discharge summary shows that cause of death was due to Myocardial Infauction (MI), heart failure.
Thus OP is guilty of medical negligence firstly for wrongly diagnosing the disease and secondly lack of proper care and caution pre and post operation.
15. However, in the given facts and circumstances of the case, age of the woman who was 73 years old, various problems she was suffering from, we deem that lump sum compensation of Rs. 2 lacs which shall include cost of litigation would meet the ends of justice.
16. Payment shall be made within two months from the date of receipt of this order.
17. Complaint is disposed of in aforesaid terms.
18. A copy of this is order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
19. Announced on the 26th April, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj