State Consumer Disputes Redressal Commission
Sanjay Kumar vs D.M.C. & Hospital on 8 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.684 of 2005
Date of Institution : 09.05.2005
Date of decision : 08.05.2012
Sanjay Kumar son of Sh.Jagdish Chand, resident of Mohalla Ilyas Khan, near
Modian Street, Inside Delhi Gate, Malerkotla, District Sangrur (Pb.)
...Appellant
Versus
1. D.M.C. & Hospital through its Chairman / Managing Director / President.
2. Dr.R.K.Kaushal, Neuro Surgeon, D.M.C. & Hospital, Ludhiana (Pb).
3. Dr.K.L.Bhatia, D.M.C. & Hospital, Ludhiana (Pb).
4. M/s Reliance General Insurance Company Ltd., 3rd Floor, Surya Tower,
108, The Mall, Ludhiana through its Manager.
...Respondents
First Appeal against the order dated 6.4.2005 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President.
Sh.Baldev Singh Sekhon, Member.
Present:-
For the appellant : Ms.Aarti, Advocate for
Sh.R.S.Bains, Advocate.
For respondents No.1-3 : Sh.Amit Kohar, Advocate.
For respondent No.4 : Sh.R.K.Bashamboo, Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT
VERSION OF THE APPELLANT
The appellant was suffering from Typhoid in November, 2002. He started getting medical treatment from doctors at Malerkotla. Since there was no improvement, the appellant was taken to Dayanand Medical College and Hospital, Ludhiana (in short "DMC") on 29.1.2003 and was admitted at CR No.26465, admission No.46486.
2. It was further pleaded that on the same day, the respondent doctors of DMC diagnosed the disease of the appellant as brain tumour. He was advised immediate operation. The appellant was operated for brain tumour on 30.1.2003 by respondent No.2 and was discharged from the DMC on 4.3.2003.
3. It was further pleaded that before operation on 30.1.2003, all investigations were conducted by the doctors in DMC on 29.1.2003. After the First Appeal No.684 of 2005 2 appellant was operated on 30.1.2003, two units of blood were transfused, which were taken from blood bank, DMC on exchange basis. The post operation test was also conducted on 30.1.2003, 1.2.2003 and 3.2.2003. The report of the brain issue dated 6.2.2003 revealed that no tumour was seen in the multiple sections.
4. It was further pleaded that the appellant had not mentally recovered from the fatigue of Neuro surgery. He received shocking news when H.I.V. positive was found on 24.2.2003 by respondents No.2 & 3 i.e. about 4 weeks after the operation of the appellant. Perusal of the reports reveals that blood sample of the appellant was sent for H.I.V. test on 21.2.2003 in the Laboratory situated in DMC. The preliminary test was done by Elisa and DOT technique, which showed the report as positive. Thereafter the report dated 24.2.2003 of Ran Baxy Laboratories, Mumbai and the report dated 26.2.2003 of Dr. Lal Path Labs (P) Ltd., New Delhi also corroborated the H.I.V. reports as positive.
5. It was further pleaded that the appellant was operated by the respondents hurriedly on 30.1.2003 for suspected case of brain tumour. The pre operation and post operation investigations did not reveal if the appellant was suffering from H.I.V. positive. It was only during the stay of the appellant in DMC that he became the case of H.I.V. positive. It could be due to transfusion H.I.V. positive blood and mishandling of the appellant and due to other negligence on the part of the respondents. The respondent had used hit and trial method in diagnosing the disease and operating the surgery and thereby causing the appellant as a case of H.I.V. positive. The respondents have played with the life of the appellant. He was youngman of 32 years of age and belong to the backward society. He was compelled to walk on road leading to slow death.
6. It was further pleaded that the appellant was employed as computer operator cum receptionist with Shivam Agency Ludhiana. He was getting Rs.6000/- per month. He was also working as part time computer operator with Sagar Agencies Ludhiana and he was getting Rs.2000/- per month from that job. Due to medical negligence on the part of the respondents, the life of appellant has been ruined. The appellant has also spent Rs.1,25,000/- on his medical treatment. Hence the complaint for compensation amount of Rs.20 lacs. First Appeal No.684 of 2005 3 VERSION OF REPSONDENTS NO.1-3
7. The respondents filed written reply. It was pleaded that respondent No.1 had taken the Professional Indemnity Insurance policy from M/s Oriental Insurance Company, near Bus Stand, Ludhiana. The other legal objections were also taken.
8. On merits, it was admitted that the appellant was admitted in DMC on 29.1.2003 at 3.20 PM vide admission No.46486, CR No.26465 with chief complaints of fever, off and on since November 2, 2002. He was also having cough, hemoptysis and unconsciousness for two days, HDBT since November 2, 2002 when the patient had started fever moderate grade, not associated with rigors and chills, associated with cough, associated with expectoration (mucoid), history of hemoptysis positive (blood in sputum) moderate in amount and now from two days progressive unconsciousness started with irrelevant talking. History of vomiting was positive for two days. General physical examination of the appellant was found unconscious, moving all his limbs, irritable, no neck rigidity, planter downgoing, DTR + + and a diagnosis of chronic febrile illness with encephalitis (tubercular was made). The appellant was examined by respondent No.3 and by Dr. Vandana Midha. The appellant was referred to respondent No.2 on 29.1.2003. The appellant was evaludated as per Glasgow Coma Scale and was found to be possessing around 5 to 7 points, whereas the minimum points are three (in brain dead patients) and maximum points are 15. The CT scan of head was got done, in which a lesion (?tumor ??abscess) was seen in the brain area. On evaluating the report of CT scan, the appellant was shifted to Neurosurgery for urgent surgery on SOS basis. The appellant was operated on next day for the abscess in the brain.
9. It was denied if the appellant was operated for brain tumour, but that the appellant was having brain abscess and was advised immediate operation. Therefore, the appellant was operated for brain abscess and not for brain tumour. The brain tissue which was removed on operation from the head of the appellant showed no tumour. Multiple sections were taken from brain parenchyma showed congestion and a dense infiltration by acute inflammatory First Appeal No.684 of 2005 4 cells with areas of necrosis. No granuloma / tumour was seen in the multiple sections examined.
10. It was further pleaded that after operation, the appellant improved but during the course of his admission in the hospital, he was still having complaints which were not responsive to medication. Thereafter, a joint meeting of all the doctors was held and it was decided that he should be tested for H.I.V.. Normally the patients was not subjected to H.I.V. test. However, in the case of the appellant, he was having abscess (pus) in the brain and in lungs and other diseases in the form of skin lesions (scabies). Therefore, after exclusion all other possibilities, the possibility of H.I.V. was sought to be eliminated but to the utter surprise of the respondents, the appellant was found to be H.I.V. positive.
11. It was denied if the appellant was hurriedly operated on 30.1.2003 for suspected case of brain tumour. The condition of the appellant at the time of admission was such that in case he was not operated upon on urgent and immediate basis, he would not have survived. It was only because of the surgery conducted on him that he is alive. As per the hospital routine, the patients subjected to surgery are not tested for H.I.V. test. It is only because the signs or symptoms of the appellant pointed out towards such a deadly disease that the appellant was tested for H.I.V.. It was denied if the appellant became the case of H.I.V. positive during his stay in the DMC. The H.I.V. could be caused by the following reasons:-
"i) The most common mode of H.I.V. I transmission is by sexual contact.
ii) The other common route of H.I.V. transmission is through intentional and unintentional transmission of blood or blood products directly into the blood stream.
iii) In utero infection of the fetus from an infected mother reflects yet another route of H.I.V. I transmission.
iv) Other routes of transmission are contaminated needles which were known to become infected with H.I.V. I while caring for H.I.V. infected patients."First Appeal No.684 of 2005 5
12. It was denied if the infected blood was transfused in the appellant because all the donors of blood in the blood bank are tested for H.I.V.when the blood was donated by them. The blood of Mr.Satwinderjit Singh son of Gurdev Singh was taken on 17.1.2003 vide blood donation No.723 and Gurpreet Singh son of Balwinder Singh who was voluntary blood donor also donated blood vide receipt No.619 dated 17.1.2003. They were found to be H.I.V. negative and the blood of these two donors was transfused to the appellant. It was denied repeatedly if the infected blood was transfused in the body of the appellant.
13. It was further pleaded that absolute CD4 count of the appellant as on 24.2.2003 was 278, whereas the normal reference range is 290-2600. The HIV disease with active virus replication is ongoing and progressive during this asymptomatic period. The rate of disease progression was directly correlated with HIV RNA levels. Patients with high levels of HIV RNA in plasma progress to symptomatic disease faster than do patients with low levels of HIV RNA. Some patients referred to as long term nonprogressors show little if any decline in CD4 + T cell counts over extended period of time. These patients generally have extremely low levels of HIV RNA. Certain other patients remain entirely asymptomatic despite the fact that their CD4 + T cell counts show a steady progressive decline to extremely low levels. In these patients, the appearance of an opportunistic disease may be the first manifestation of HIV infection. During the asymptomatic period of HIV infection, the average rate of CD4 + T cell decline is approximately 50 m/L per year. When the CD4+ T cell count falls to <200/mL, the resulting state of immunodeficiency is severe enough to place the patient at high risk for opportunistic infection and neoplasms and hence for clinically apparent disease.
14. It was also pleaded that the presence of CD4 count as 278 shows that the appellant was got infected by H.I.V. positive infection much prior to his admission in this hospital.
15. It was denied if the appellant had developed HIV positive during his stay in the DMC. Rather the doctors, paramedical staff and other persons who were associated in the operation of the appellant and were free from H.I.V. symptoms First Appeal No.684 of 2005 6 have been exposed to the contacting of this deadly disease by negligent act of the appellant. It was also denied if the respondents had used hit and trial method or if they had conducted surgery hurriedly or if the respondents were responsible for causing H.I.V. to the appellant. It is also denied if the respondents have played with the life of the appellant or if they had committed any deficiency in service or medical negligence. It was denied if pre operation and post operation investigation do not reveal that the appellant was suffering from H.I.V. positive before operation. It was denied that the appellant suffered with H.I.V. positive during his stay in the hospital which has been caused to the appellant because of alleged careless and negligence by the respondents. No test was conducted on the appellant for H.I.V. positive before operation. The test was conducted when there were sufficient symptoms pointing towards the presence of H.I.V. in a particular patient.
16. It was denied that the appellant was working as Computer operator cum receptionist with Shivam Agency Ludhiana or if he was getting Rs.6000/- per month or if he was working as computer operator with M/s Sagar Agency Ludhiana and or if he was getting Rs.2000/- per month. It was repeatedly denied that the respondents had committed any medical negligence. Dismissal of the complaint was prayed.
VERSION OF RESPONDENT NO.4
17. The insurance company was also impleaded as respondent No.4. They also filed written reply. It was admitted that DMC had obtained professional indemnity policy from respondent No.4, but it was denied if any complaint was maintainable against respondent No.4 or if any medical negligence has been committed by respondents No.1 to 3. Dismissal of the complaint was prayed. PROCEEDINGS BEFORE THE DISTRICT FORUM
18. Parties produced the affidavits / documents in support of their respective versions.
19. The learned District Consumer Disputes Redressal Forum, Ludhiana ( in short "District Forum") dismissed the complaint vide impugned judgment dated 6.4.2005.
First Appeal No.684 of 2005 7
20. Hence the appeal.
DISCUSSION
21. The submission of learned counsel for the appellant was that the appeal be accepted, impugned judgment dated 6.4.2005 be set aside and the respondents be directed to pay adequate compensation to the appellant.
22. On the other hand, the submission of learned counsel for the respondents No.1 to 3 was that there was no merit in the present appeal and same be dismissed with heavy costs.
23. Learned counsel for respondent No.4 made submission that there was no merit in the present appeal and the same be dismissed with heavy costs.
24. Record has been perused. Submissions have been considered.
25. The respondents have proved the patient indoor admission record as Ex.R3. Discharge summary is a part of this record. In the discharge summary, the history of illness of the appellant is specifically mentioned, which is pleaded in para 1 of written reply by the respondents. It was stated in the indoor patient record that the appellant was admitted on 29.1.2003 at 3.20 PM vide admission No.46486, C.R.No.26465 with chief complaints of fever, off and on since November 2, 2002, cough, hemoptysis and unconsciousness for two days, HDBT since November 2, 2002, when patient started having fever moderate grade, not associated with rigors and chills, associated with cough, associated with expectoration (mucoid), history of hemoptysis positive (blood in spuntum) moderate in amount and now from two days progressive unconsciousness started with irrelevant talkings. History of vomiting positive two days. On general physical examination, the appellant was found unconscious, moving all his limbs, irritable, no neck rigidity, planter downgoing, DTR + + and a diagnosis of chronic febrile illness with encephalitis (tubercular was made). The appellant was examined by Dr.K.L.Bhatia and Dr.Vandana Midha. The condition of the appellant was evaluated as per Glassgow Coma Scale. It was found that the appellant was possessing around 5 to 6 points, whereas the minimum points are 3 (in brain dead patients) and maximum points are 15. The C.T. scan of the head was got done in which a lesion (?tumor ?? abscess) was seen in the brain area First Appeal No.684 of 2005 8 and for that reason neurosurgery was required on SOS basis. The appellant was operated on the next day for the abscess in the brain and not for the brain tumour.
26. Since the appellant himself has pleaded that he was taking medical treatment from doctors at Malerkotla. Neither the appellant has named those doctors from whom he had got medical treatment from November 02, 2002 till 29.1.2003, nor he has produced any medical record of that period. This also shows that condition of the appellant had become worse on 29.1.2003 when he was admitted in the respondent hospital, then what it was on November 02, 2002. Even before operating the appellant on 30.1.2003, the consent / authorisation for medical / surgical treatment was given by Jagdish Kumar father of the appellant on 30.1.2003 before operation.
27. The respondents have proved the entire medical record as Ex.R3.
28. The appellant has doubted that in the respondent hospital two bottles of blood were transfused in the body of the appellant and the appellant has got possibly HIV through that blood which was transfused in him.
29. This doubt of the appellant has been ruled out by the respondents in the written reply and it was pleaded by them in para 6 of the written reply that this allegation of the appellant was palpably false because all the donors of blood in the blood bank are tested for H.I.V. before the blood is donated by them. The blood of Mr.Satwinderjit Singh son of Gurdev Singh, who was a voluntary donor was taken on 17.1.2003 vide blood donation No.723 and by Gurpreet Singh son of Balwinder Singh, who was also voluntary blood donor and who had donated the blood by blood receipt dated 17.1.2003. Both of them are found to be H.I.V. negative and blood donated by these two donors was transfused in the appellant. The blood screening reports of these two persons namely Satwinderjit Singh and Gurpreet Singh blood donors were proved as Ex.R5 and Ex.R6. These are blood donors screening reports and both these reports reveals that these blood donors were not suffering from any H.I.V. positive. Therefore, the possibility of the appellant getting H.I.V. positive because of blood transfusion has been totally ruled out.
First Appeal No.684 of 2005 9
30. The H.I.V. positive was found in the appellant during his admission in the respondent hospital. It is pleaded by the respondents in para 7 of the written reply that no test for H.I.V. positive was conducted on the appellant before operation because as per hospital routine, the patients who are subjected to surgery are not tested for H.I.V. test. Only if the signs and symptoms of the patient point towards such a deadly disease only then the patient is tested for H.I.V. positive. Since at the time of admission of patient, there was no such signs or symptoms, therefore, the test of H.I.V. was not conducted on him.
31. It is further pleaded by the respondents in para 4 of the written reply that after operation the patient improved, but during the course of his admission in the hospital, he was still having complaints which were not responsive to medication. Thereafter a joint meeting of all the doctors was held and it was decided that he should be tested for H.I.V. for which normally the patients are not subjected. Since the appellant was having abscess (pus) in the brain and in lungs and he has other disease in the form of skin lesions (scabies). Therefore, after excluding all other possibilities, the possibility of H.I.V. was sought to be eliminated but to utter surprise of the doctors of respondent hospital, the appellant was found to be H.I.V. positive.
32. It was also pleaded in para 6 of the written reply that although the length of time from initial infection to the development of clinical disease varies greatly, the median time for untreated patients is approximately 10 years. It was emphasized that H.I.V. disease with active virus replication is ongoing and progressive during this asymptomatic period. The rate of disease progression is directly correlated with HIV RNA levels. The patient with high levels of H.I.V. RNA in plasma progress to symptomatic disease faster than do patients with low levels of H.I.V. RNA. Some patients are referred to as long term nonprogressors show little if any decline in CD4+ T cell counts over extended periods of time. These patients generally have extremely low levels of H.I.V. RNA. Certain other patients remain entirely asymptomatic decline to extremely low levels. In these patients, the appearance of an opportunistic disease may be the first manifestation of H.I.V. infection. During the asymptomatic period of H.I.V. First Appeal No.684 of 2005 10 infection, the average rate of CD4+ T cell decline is approximately 50 u/L per year. When the CD4+ T cell count falls to <200/uL, the resulting state of immunodeficiency is severe enough to place the patient at high risk for opportunistic infection and neoplasms and hence for clinically apparent disease.
33. In the case of the appellant, the presence of CD4 count was 278 which showed that the appellant was got infected for HIV positive infection much prior to his admission in the respondent hospital.
34. Since the appellant has failed to prove the medical record of his medical treatment for the period from 2.11.2002 to 28.1.2003, therefore, it could be possible that the appellant developed H.I.V. during his medical treatment in this period.
35. So far as the respondents are concerned, the DMC is most specialised hospital and doctors employed in DMC are themselves highly skilled and specialised doctors. When after the operation, the appellant was not responding to the medication, then the medical heads of different fields assembled and after ruling out the possibility of other disease preferred to get examined the appellant for H.I.V. test and to the bad luck of the appellant, he was found to be H.I.V. positive.
36. The only doubt of the appellant is that he has got H.I.V. positive when the blood was transfused in him during his admission in the D.M.C. The respondents have totally ruled out if the appellant got H.I.V. positive through the blood transfusion. They have identified the persons whose blood was transfused in the appellant. Those persons were not H.I.V. positive, even the slips have been proved as Ex.R5 and Ex.R6, which clearly show that neither these blood donors were having H.I.V. positive nor there was any element of H.I.V. positive in the blood, which was transfused.
37. It was held by the Hon'ble Supreme Court in the judgment reported as "MALAY KUMAR GANGULY v. SUKUMAR MUKHERJEE (DR.) & ORS." III(2009) CPJ 17 (SC) as under:-
"35. Charge of professional negligence on a medical person is a serious one as it affects his First Appeal No.684 of 2005 11 professional status and 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 of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.
36. Even under the law of tort a medical practitioner can only be held liable in respect of an erroneous diagnosis if his error is so palpably wrong as to prove by itself that it was negligently arrived at or it was the product of absence of reasonable skill and care on his part regard being had to the ordinary level of skill in the profession. For fastening criminal liability very high degree of such negligence is required to be proved."
38. It was held by the Hon'ble Supreme Court in the judgment reported as "Jacob Mathew v. State of Punjab & Anr." AIR 2005 Supreme Court 3180 which view has been reiterated by the Hon'ble Supreme Court in a latest judgment reported as Dr.C.P.Sreekumar, M.S. (Ortho) Vs. S.Ramanujam, 2009 CTJ 581 (Supreme Court) (CP)" as under : -
"(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor First Appeal No.684 of 2005 12 follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed."
39. It was held by this Commission in the judgment dated 22.1.2008 passed in First Appeal No.1038 of 2000 "Partap Singh v. Sahib Nursing Home & Surgical Centre and others" that a doctor no doubt can play havoc with the life of another by medical negligence, but the doctor cannot be dubbed as negligent wherever the things go wrong because of God's will or for other factors. Finding fault with the doctor without any evidence would not only defame the medical profession which is otherwise very noble but the society will also lose the compassion of the saviour i.e. of the doctor who is considered next to God.
40. In view of the discussion above, it is clearly proved that the appellant was having H.I.V. positive even before his admission in the respondent hospital on 29.1.2003. Therefore, there was no medical negligence on the part of the respondents hospital or the respondent doctor.
41. There is no merit in the present appeal and same is dismissed.
42. The arguments in this case were heard on 26.4.2012 and the order was reserved. Now parties be communicated about the same.
43. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(Justice S.N.Aggarwal) President (Baldev Singh Sekhon) Member May 08, 2012.
Davinder