State Consumer Disputes Redressal Commission
Delhi Ivf & Fertility Clinic vs Dr.(Mrs.) Lina Goyal on 3 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: 03.04.2007 Appeal No.1468/2001 (Arising from the order dated 03.03.2001 passed by District Forum(New Delhi) K.G. Marg, New Delhi in Complaint Case No.2648/1998) 1. Delhi IVF & Fertility Clinic Appellant 23, Todar Mal Lane, Bengali Market, New Delhi. 2. Medical Director C/o Delhi IVF & Fertility Clinic 23, Todar Mal Lane, Bengali Market, New Delhi. Versus Dr.(Mrs) Lina Goyal Respondent Veer Maternity Home Opp. Bus Stand, Deoband Distt. Saharanpur. CORAM: Justice J.D. Kapoor, ... President Sh. 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, President(ORAL)
1. On account of negligence in not providing the requisite post care treatment to the respondent who had availed the services of the appellants for treatment of IVF Procedure commonly called as Test Tube Baby Procedure, the District Forum has vide impugned order dated 03.03.2001 held the appellants Delhi IVF & Fertility Centre and Dr. Anoop Gupta guilty for deficiency in service and directed to refund fees/medicines/investigation charges/room charges etc. charged from the respondent with a sum of Rs.25,000/- as compensation towards mental and physical pain suffered by the respondent besides Rs.5,000/- as cost of litigation.
2. Feeling aggrieved the appellants have preferred this appeal.
3. The case of the respondent before District Forum in brief was that the respondent availed services of the appellants for treatment of IVF procedure commonly called as Test Tube Baby procedure vide appellants case File No.Reg.No.462/94 for a consideration of fees as demanded by OP. As per the respondent the procedure was planned from 06.11.1994 to 26.11.1994 and problem started with the respondent when she was informed by Dr. Sanjay Patil (OP No.3 before District Forum) that he is leaving for Bombay on 27.11.1994 to attend marriage of his sister. During this period, the respondent was to remain under observation and care of the expert of this procedure. Respondent was told by the appellant No.2 and Dr. Sanjay Patil that no complication is expected during next 14 days and promised her that Dr. Sanjay Patil shall be back by 09.12.1994 for review. Dr. Sanjay Patil also gave his telephone number of Bombay where he could be contacted by the respondent. On 28.11.1994 respondent developed some problems which were discussed by Dr. Sanjay Patil over telephone who suggested some medicines. On 30.11.1994 the condition of the respondent further deteriorated and husband of the respondent contacted Dr. Sanjay Patil who expressed his inability to come to Delhi at that juncture respondents husband also contacted appellant No.2 who informed that it was Dr. Sanjay Patil who could be of any help in such complicated cases. Respondents husband requested appellant No.2 to call Dr. Sanjay Patil over telephone but he ignored the request by saying that this is a minor complication and everything shall be all right in a day or two. As per the respondent as no alternative was left she was rushed to Spring Meadows Hospital in East of Kailash where she was treated. As per Dr. Sanjay Patil, he arrived on 03.12.1994 and visited respondent at about 12 noon and after seeing the condition of the respondent felt sorry and agreed that this was the complication of IVF procedure.
4. The impugned order has been assailed by the counsel for the appellants on the following premise that: there was no negligence on the part of Dr. Sanjay Patil as according to respondent herself the problem started when she was informed by Dr. Sanjay Patil that he is leaving for Bombay to attend marriage of his sister and that after completion of IVF Procedure on 26.11.1994 and during this period the respondent was to remain under the treatment of appellant No.2 Dr. Anoop Gupta who himself is a renowned doctor and expert in the IVF Procedure. Counsel for the appellants also contended that there is no post care treatment to the person who is subjected to IVF Procedure and therefore the District Forum erred in firstly concluding that before leaving for Bombay Dr. Sanjay Patil should have ensured that the patient should be taken care of by the doctors who are expert in the field and secondly that there was no requisite post care treatment to the respondent which she was not provided.
5. In order to fortify this contention that there is no post care treatment of IVF Procedure, the counsel for the appellants contended that IVF procedure is simple procedure which involves only three steps namely collection of the eggs from the ovary of the woman and collection of the sperms from the husband/donor and fertilization of the eggs in incubators and reintroducing the fertilised eggs in the uterus of the woman and once all the three procedures are over all the patients are discharged and from thereon the woman undergoes the normal highs and lows of the pregnancy. With regards to the procedure and the success rate the counsel for the appellant has relied upon WHO technical Report on the Recent Advances in Medically Assisted Conceptions. According to this report The techniques of ovarian stimulation, Occyte recovery and storage in vie fertilisation, gamete replacement and monitoring of subsequent outcome have been considerably refind but the ultimate success rate as judged in the live birth rate remain stubbornly low in most climes not exceeding 25%.
6. The counsel for the appellant has also assailed the observation of the District Forum that as per the complainant as no alternative was left with her she was rushed to Spring Meadows Hospital whereas she went there as the place was conveniently situated and not that she was provided requisite care and that the respondent did not disclose that she was an Asthmatic patient and that she was also suffering from PCOD besides she was a very obese lady and had tried the IVF procedure prior to this twice.
7. 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)
8. 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.
9. 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.
9. 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.
10. 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)).
11. 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?
12. 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.
13. It appears to be a case of more or less administrative deficiency. Whenever any hospital or nursing home or medical centre undertakes to provide treatment to a patient it is supposed to anticipate all the future complications and make arrangement in the absence of the expert or any subsequent complications.
14. In the instant case Dr. Sanjay Patil was the expert in the filed of IVF Procedure and apellant No.1 Dr. Anoop Gupta has not produced any material or document to show that he had also undertaken such cases or was competent to deal with such patients. Even if we assume that he was competent to attend to the patient still the fact remains that the long absence of Dr. Sanjay Patil created certain complications, which could not be controlled by the appellant Dr. Anoop Gupta and as a result the patient had to rush to some nearby hospital.
15. There is no procedure or operation which does not require post operative or post care requirement. Had it not been so then no patient would not have suffered complications after undergoing or subjecting himself/herself IVF Procedure or any other procedure. In the instant case the respondent not only suffered after IVF Procedure but also was admitted in the hospital and was treated for the complication that arose subsequent to the IVF Procedure.
16. It is not a case where the operation has not been successful. It is a case where the post care treatment has not been given, due to which respondent suffered immensely for getting treatment from some other hospital. In view of the report of the WHO that there is only success in 25% Dr. Sanjay Patil cannot be held guilty for medical negligence though the appellants were rightly held guilty for deficiency in service in as much as that post care requirement was not provided effectively. The report of the WHO itself shows that subsequent outcome has to be considerably monitored and over the period has been refined shows that post care monitoring is necessary requirement.
17. In the instant case only the appellant hospital or the nursing home have to be held guilty for administrative negligence in respect of lack of post care treatment in not making requisite arrangement in the absence of Dr. Sanjay Patil.
18. Since the insurance company was impleaded as OP No.4 with which the appellants had insured themselves against the medical perils, the first charge for recovery of the awarded amount shall be against the insurance company as the consumer cannot be subjected to multiplicity of litigation as the liability of the insurance company depends upon findings against the hospital and the doctor. If the hospital or doctor has been held guilty for medical negligence or deficiency in service, then the insurance company has to compensate the consumer. Insurance is obtained only to insure that the consumers interests are protected and not that the person who has insured himself will get the amount. The only liability of the insurance company is pay upto the insured amount only and any amount over and above insured amount becomes the liability of the defaulting hospital or the doctor.
19. In the result the appeal is dismissed.
Since we have held the appellants guilty for deficiency in service, the liability to pay the compensation if it is within the insurance amount shall be of the insurance company. The execution shall be filed by the respondent first against the insurance company.
20. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
21. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 03rd day of April 2007.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member Tri