State Consumer Disputes Redressal Commission
Moorti Sharma vs Indraprastha Medical Corporation ... on 8 January, 2007
C-372/1997 IN THE STATE COMMISSION:DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 08-01-2007 Complaint Case C-372/1997 1. Smt. Moorti Sharma, E-17/11, Krishna Nagar, Delhi 110051. 2. Shri N.K. Sharma, E-17/11, Krishna Nagar, Delhi 110051. . . . Complainants Versus 1. M/s. Indraprastha Medical Corporation Limited, Apollo Hospitals, Sarita Vihar, Delhi Mathura Road, New Delhi 110044. 2. Dr. Ganesh K. Mani, Cardiac Surgeon, Indraprastha Apollo Hospital, Delhi Mathura Road, Sarita Vihar, New Delhi 110044. 3. Dr. Ramanpuri, Sr. Interventional Cardiologist, Indraprastha Apollo Hospital, Delhi Mathura Road, Sarita Vihar, New Delhi 110044. . . . Respondents CORAM: Justice J.D. Kapoor, President Mahesh Chandra, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. Through this complaint the complainant has sought compensation of Rs. 18.50 lakhs on account of medical negligence on the part of OPs in conducting coronary bypass surgery resulting in acute relapsing pancreatitis leading to renal failure (Post CABG-Coronary Artery Blockage Grafting) and demise of Sh. J.P. Sharma, husband of complainant No.1 and father of complainant No.2.
2. Allegations of the complainant, in brief, are that J.P. Sharma, deceased, did not have any long history of ailment. In April 1997 the doctors opined a blockage in the artery and recommended for a coronary bypass surgery. Under a package scheme evolved by OP-2 & 3 complainants spent Rs. 1,22,000/- or so, inclusive of hospital charges, fee bill of all doctors including medicines. Deceased was operated on early morning of 6th August, 1997 without taking care to have pre-operative checks. The duty nurse was requested to call the doctor as pain severe in the nature was complained in the abdominal region. Both OP-2 & 3 were stated to have gone out for vacation.
3. That despite being aware that such doctors are on vacation, hospital staff continued informing family members that doctors were attending to the patient.
On 16.8.97 at about 9.30 p.m. the patient again lost his consciousness due to the severe pain in the stomach.
Dr. Jain was deputed to attend to the patient and on his advice the patient was shifted back to ICU that night.
During his stay in ICU, the family members were not informed properly by Dr. Jain about the state of health of the patient. On 18.8.97 morning at about 4.30 a.m. when the patient had gone into coma a senior doctor Dr. Baba Das examined the patient and could identify that the complication was not related to heart and was due to the onset of infection in the abdominal region. On that day in the evening Dr. Mani who resumed after leave called us and informed that a new complication had developed and another doctor Dr. Mishra was called to attend to him. Till such time the patient was on wrong diagnosis and medication that aggravated the infection to alarming proportions resulting in non-functioning of both the kidneys. As the patient was in coma, complainants were left with no other option except to agree and continue with the suggested treatment. The patient was kept under dialysis for a period of 7 days from 18.8.97 to 24.8.97. However, there was no sign of improvement in the health of the patient but other systems also got infected to a major extent due to the spread of the infection resulting in total failure of kidneys and lungs. The patient ultimately breathed his last on 26.8.97 at 2.20 a.m. Due to the negligence of the OPs the deceased lost his life on account of following reasons;
a) spreading of the infection due to non-sterilized atmosphere and also the apparatus deployed during the operation and most importantly the apparatus/tools used in post-operative care period;
b) improper attention by the doctors and also non-availability of specialist doctors at the crucial juncture.
Apart from this misinformation to the family till the last minute regarding the health of the patient;
c) wrong diagnosis/treatment given by the doctors and callous attitude of the hospital administration by giving false hopes and fleecing money from the family by not providing appropriate care during the period of severe mental distress and agony to the family; and
d) over-confidence on the part of doctors in proceeding with their diagnosis, irrespective of the deterioration of health of the patient.
4. The defence version of OP-1/Appollo Hospital is that in case of complaint of abdominal pain (as was the case with the patient) diagnosis of pancreatitis is the last as per the related medical literature and the same takes considerable time for establishing it (Harrison, Principles of Internal Medicines-1998).
Medically, causes of upper abdominal pain especially after any open heart surgery using cardio pulmonary bypass machine may be upper abdominal muscular pain, post operative cholecystitis, colitis, constipation, pyclonephritis or cystitis. Thus, procedurally pancreatitis is thought of only after the aforesaid cause of post-operative abdominal pain has been ruled out. In this way acute pancreatitis develops in a patient de novo and without any premonition and in such a condition by and large it is only wait and watch position and that is why this complication is also called misnomer.
5. That the OP had undertaken every step necessary for best possible post operative treatment and care of the patient and that the cause of demise of the patient was not any infection during operation or in post operative phase as the atmosphere in operating room as well as post operative ICU was duly sterilized.
Absence of any infection has also been proved on the basis of the tests conducted on the patient.
6. Further that the patient was primarily a cardiac surgical patient and he was operated successfully with remarkable recovery in post- operative phase, which was also as a result of best attention and care by the OP-1. Further, the patient was about to be discharged from the hospital when suddenly acute abdominal pain occurred on 11th post-operative day after CABG (Coronary Artery Bypass Grafting).
Immediately after reporting of abdominal pain in the patient, all the necessary tests, investigations, diagnosis were conducted with requisite and prompt follow up treatment and care and that the diagnosis of acute relapsing pancreatitis was confirmed immediately after Serum amylase report. Thus, every possible step was taken to alter the downhill course of acute relapsing pancreatitis resulting in terminal renal failure requiring multiple dialyses.
7. OP-2 Doctor, while controverting the allegations, further elaborated that since the patient was constantly under active medical supervision by senior consultant of the OP hospital and hence there had been no negligence on the part of the team and the doctors and specialists including OP-2. To substantiate the defence of the answering OP-2, specialists practicing in the area of pancreatitis problems have opined that the said acute pancreatitis cannot in any way be linked with the cardiac problem and the consequential bypass surgery known as CABG. It is widely propounded by various authorities that the said pancreatitis is caused due to the following:
Alcohol: heavy drinkers are particularly at risk from attacks of pancreatitis.
Drugs: certain treatments used by people with HIV can cause pancreatitis, including the anti-HIV drug ddl and, rarely, the antibiotic pentamidine.
Infections that affect the gall bladder or pancreas may also cause pancreatitis. The infections linked to pancreatitis in people with HIV are CMV, cryptosporidium, MAI, salmonella and, less commonly, Cryptococcus, giardiasis, kaposis sarcoma and toxoplasmosis.
Some researchers believe that HIV infection itself can cause pancreatitis without other risk factors. Any physical blocks to the flow of pancreatic enzymes or of bile from the gall bladder can also cause the syndrome.
8. OP-3 has denied its liability on the ground that the deceased had undertaken CAG / Angiography at GB Pant Hospital and was advised by the said hospital to go in for CABG and the deceased had preferred to undergo surgery from the OP-2 and requested the OP-3/Dr. Raman Puri to be in attendance. The deceased was duly informed that the answering OP was to be away from Delhi from 14.8.97 to 17.8.97 and therefore it was settled between the OP-3 and the deceased that the CABG be undertaken before his departure from Delhi. However, as a precautionary measure Dr. K.K. Saxena, who is also of the equal standing as that of the OP-3 was to attend to the deceased for any need connected with the CABG or from its recovery. OP-3, therefore, is not responsible for any negligence or deficiency in treatment or of any unfair practice. The deceased was accompanied by a professional and had approached the OP-3 with a request to get him operated upon from the OP-2 at the Institute of the OP-1 although OP-3 was given a meager amount of Rs. 2400/- for his consultancy.
9. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still holds the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
10. 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.
11. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Ors (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence.
Latest judgment of Supreme Court on this aspect is Jacob Matthew V/s. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of the Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.(4)
The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
12. 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.
13. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence.
The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
14. 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?
15. As is apparent, the deficiency in service by service provider like hospital is of varied kinds. In common parlance, medical negligence is understood as negligence of the treating doctor as to the line of his treatment being not as per medical procedure, or deficiency or negligence in operating the patient causing complications of various kinds. Similarly, there is medical negligence on the part of the doctor who undertakes the treatment of a patient for a disease which he is not competent to deal with or does a thing which he is not required to do and does not do a thing which he is required to do. However, the definition of deficiency provided by Sec. 2(1)(g) of the Consumer Protection Act, 1986 is so wide that it also takes in its fold the administrative deficiencies of the hospital. For instance, not providing blood to a patient who could die if blood transfusion is delayed for some time or not providing oxygen cylinder for want of which the patient is likely to suffer, some time fatal, or admitting the patient in the Nursing Home or hospital knowing it well that the doctors who are specialized and skilled for treating the patient are not available for some reason or the other. Sometimes, sanitary conditions of the hospital are so bad that it contributes to the worsening condition of the patient. Sometimes, the wherewithal and paraphernalia of the hospital who have very high reputation and claims themselves to be a five star or seven star hospital are not adequate.
16. There are certain facts that have emerged from the defence version of the O.Ps as well as the allegations of the complainant, which are relevant and of significance to ascertain as to the fact whether there was medical negligence on the part of the operating doctor and team of O.P. 1.
17. Admittedly, the deceased J.P. Sharma was admitted at O.P.1 hospital on 20-08-1997 for Coronary Artery Bye-pass Surgery (CADG). Operation was conducted on 06-08-1997 byO.P.2 and his team. O.Ps declared the operation successful. Thereafter from 06-08-1997 to 14-08-1997 the deceased was kept in ICU. Thereafter on 26-08-1997 the deceased was kept in HDU (High Density Unit). At 9-00AM on 15-08-1997 the deceased complained of severe stomach pain and sensation of passing motion. This was apprised by the family members of the deceased to the Nurse on duty. Both the respondents, i.e. O.P. 2 and 3 were stated to have gone on vacation at the time of admission on 5-8-1997. The junior doctor who was available at that time left by saying that such complaints are normal after a routine operation. As the pain persisted throughout the night the doctor on duty advised enema. At 5-00 AM on 16-8-1997enema was administered to the patient. Couple of hours thereafter the pain aggravated and the patient lost consciousness at 9.30 PM on 16-08-1997. Patient again complained of severe stomach pain. Dr. Jain was deputed to look after the patient and on his advice the patient was again shifted back to ICU. At 4.30 AM on 18-8-1997 the patient went into coma. In the evening of 18th Aug 1997, O.P.2 resumed his duty and he conveyed to the family members of the patient that certain new complications have arisen. Thereafter Dr. Mishra and Dr. S.Mani (Nephrologists) were called upon to attend to the patient. The patient was advised to be placed on dialysis and the family members were informed that it would take about 7 days as the kidneys had become non-functional due to severe infection of pancreas. From 18-08-1997 to 24-08-1997 the patient was kept on dialysis. But no sign of improvement was shown. At 2.20 AM on 26-08-1997 the patient died. The cause of death was acute relapsed pancreatitis.
18. According to the complainant, the reasons for untimely death of the patient are as follows:-
i) Spreading of infection due to non-sterilisation of atmosphere and apparatus deployed during operation and most importantly apparatus used in post-operative care.
ii) Improper attention by doctors and also non-availability of specialist doctors at crucial juncture.
iii) Wrong diagnosis / treatment given by the doctors and callous attitude of the hospital administration by giving false hopes and fleecing money from the family by not providing appropriate care during the period of severe mental distress and agony to the family.
iv) Over confidence on the part of the doctors in proceeding with their diagnosis, irrespective of the deterioration of health of the patient.
19. In the instant case, there is no material before us showing the medical negligence on the part of any of the doctors who treated the complainant, particularly the operating doctor O.P.2. It is only the operating doctor who could be fastened with the charge of negligence and not the team of doctors assisting him. The operating doctor may consult some or the other doctors in respect of some complications or problems in which he may not be having specalised knowledge, but the ultimate liability is of the operating or treating doctor.
20. It is common sight in government hospitals, private nursing homes and medical centres that a team of 10-12 doctors move around in the wards, whereas the only doctor who treats the patient is Head of the Unit and he alone can be saddled with the medical negligence, and not all others around him including the nursing staff etc. for doing or not doing a particular thing. For negligence or deficiency in service of other doctors or staff, Nursing Home or Hospital can alone be held liable. Such types of deficiencies are lack of post- operative care or non-adherence with the directions of the main treating doctor by the junior doctors or nursing staff or the supporting staff of the hospital. If the operating doctor also is found to be negligent in treating the patient or operating the patient resulting in his death or other complications, the said doctor who treats or operates the patient on behalf of the Nursing Home or hospital can also be held jointly and severally liable.
21. The main contention of O.P.1 is that there was no deficiency on the part of the hospital or any of its staff including the doctors.
The patient after successful surgery had developed acute relapsing pancreatitis which is the known but not common complication after cardiac surgery as is also established by related World Medical Literature which is to the following effect:-
Uilmaz AT et al, Eur J. Cardio Thoracie Surgery 10 (g): 763-7 1996, Gastrointestinal complications after cardiac surgery.
Panjanen H et al Surgery, 123 (5) : 504 10, 1998 May, Hyperamylasamia (Pancreatitis) after cardiac pulmonary bypass: pancreatic cellular injury or impaired renal excretion of amylase.
Chertow GM et al AMJ Med., 104 (4) 343-8 1998 An Independent Association between acute renal failure and mortality following cardiac surgery.
Kaufman P, Wein Klin Wochenschr, 108 (1) : 9-15, 1996 has described about severity of Post operative acute pancreatitis as The Clinical spectrum of acute pancreatitis ranges from mild, self-limiting disease to fulminant illness that may rapidly lead to multiple organ failure and death.
Fatality in case of acute pancreatitis Lankiseh PG et al Z GAstroenteron 34(6):
371-7 1996 January, morbidity and mortality in 602 patients with acute pancreatitis seen between the year 1980-1994.
Lam S et al Diq Dis 14(2) 83-98, 1996 March April, Risk factors for morbidity and mortality in pancreatitis.
De Beaux AC et al Gut, 37 (1) : 121-6, 1995 July, Factors influencing morbidity and mortality in acute pancreatitis and analysis of 179 cases.
22. Ld. Counsel for the O.P. further contended that in case of complaint of abdominal pain (as was the case with the deceased) diagnosis of pancreatitis is the last as per the related medical literature and the same takes considerable time for establishing it (Harrison, Principles of Internal Medicines 1998). Medically, causes of upper abdominal pain especially after open heart surgery using cardio pulmonary bypass machines may be upper abdominal muscular pain, post operative stress gastritis, acute, mild to moderate cholecystitis, colitis, constipation etc. Thus, procedurally pancreatitis is thought of only after the aforesaid causes of post-operative abdominal pain have been ruled out. Acute pancreatitis develops in a patient de novo and without any premonition and in such a condition by and large it is only a wait and watch situation and that is why this complication is also called a misnomer. According to the counsel, O.P. had undertaken every step necessary for the best possible post-operative treatment and care of the patient and that the cause of death of the patient was not any infection during operation or in post-operative phase as the atmosphere in operating as well as post-operative ICU was duly sterilized. Absence of any infection has also been proved on the basis of the tests conducted on the patient.
23. Ld. Counsel further contended that the patient (deceased) was primarily a cardiac surgical patient and he was operated successfully with remarkable recovery in post-operative phase, which was also as a result of best attention and care by O.P.1. Further he was about to be discharged from the hospital when suddenly acute abdominal pain occurred on 11th post-operative day after Coronary Artery Bypass Grafting (CABG).
Immediately after reporting of abdominal pain all the necessary tests, investigations, diagnosis were conducted with requisite and prompt follow up treatment and care and that the diagnosis of acute relapsing pancreatitis was confirmed immediately after Serum amylze report. Thus, every possible steps were taken to alter the downhill course of acute relapsing pancreatitis resulting in terminal renal failure requiring multiple dialyses. The patient died of Acute Relapsing Pancreatitis and not as a result of spread of infection as alleged.
24. Ld. Counsel concluded that there is no further medical evidence brought on record to show any negligence or deficiency in service so far as O.P.1 is concerned. There is no expert evidence on record to prove any negligence or deficiency in service either on the part of O.P.1 or on the part of treating doctor. This is borne out from the affidavit of O.P.2 that the patient developed a new lethal disease ART due to no fault or negligence of the consultants just before he was on the verge of discharge from the hospital.
25. In the instant case, all the evidence before us shows that O.P.1 alone was deficient in service in admitting the patient knowing it well that the doctors treating or other specialists or paramedicos were not available in the hospital or had gone out of town and the condition of the patient deteriorated and became saturated.
26. In the present case, the patient was in the ICU. The family members were not informed properly about the state of health of the patient and also were informed wrongly that doctors were attending to him.
The death was due to relapsed pancreatitis leading to renal failure which as per medical literature is either due to wrong medication or due to non-attendance of the patient when he is recovering from the operation for the original disease.
27. After the operation there was a complaint of stomach pain on 15.08.97 which was only possible either due to reaction of the
28. drugs or infection and till 18.08.97 no senior doctor was available to attend to the patient and when the patient went into coma one Dr. Mani was called who opined that sudden development of onset of infection in the abdomen of the patient was not directly related to the cardiac surgery.
28. Thus, O.P.1 alone can be held guilty for deficiency in service in accepting the patient when senior doctors who alone were competent to handle the complications arising during or after the operation, as they were out of town and by not providing appropriate care or continuing with the treatment and presumably wrong diagnosis inspite of deteriorating condition. In our view, a lump sum compensation of Rs. 2.5 Lacs including cost of litigation will meet the ends of justice. Complaint is disposed of.
29. Payment shall be made within one month of the receipt of this order.
30. Copy of this order as per statutory requirement be forwarded to the parties free of cost and thereafter the file be consigned to record.
31. Copy of judgment be sent to the Presidents of all the District Fora.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member HK