DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.96/2014
Sh. Ranjit Kumar Sharma
Village- Barwa, PO- Areraj,
Ward No. 12, P.S. & Distt.- Govind Ganj,
East Champaan, Bihar- 845411
….Complainant
Versus
Director
All India Institute of Medical Sciences (AIIMS)
Ansari Nagar, Yusuf Sarai, New Delhi
….Opposite Party
Date of Institution : 06.03.2014
Date of Order : 12.05.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The complaint has filed the present complaint against Director AIIMS (OP) seeking compensation of Rs.12,00,000 for loss of life of his mother and Rs.50,000 plus cost of litigation. It is stated by the complainant that he brought his mother for treatment of cancer to Delhi to the hospital of the OP which is known for specialisation in various ailments including cancer. The mother of the complainant was diagnosed of suffering from stage IV cancer ‘Anaplastic Thyroid Carcinoma’. It is stated that normally stage IV cancer is not treatable and normally doctor’s advice in such cases is that the such patients should be in their normal residential environment so that the patients who are terminally ill be surrounded by relatives till their last breath.
It is further stated that the mother of the complainant was treated for cancer with three cycles of chemotherapy which were completed by 03.08.2012. The opinion of the doctors was that there was high risk in carrying out surgery on the mother of the complainant (Annexure B) and the matter was referred back for radiotherapy. For the treatment, cancer specialist Prof. Anurag Srivastava was of the opinion that surgery was not possible. On the other hand Dr. Pandey, another senior doctor stated that the patient is clinically operatable (Annexure D). Since there were two contrasting opinions of different doctors after heavy consultations in their meetings, the doctors decided to go ahead with the surgery on his mother when on stage IV cancer patients, which normally is not done. The surgery was done on 28.02.2013 and the patient was discharged on 11.03.2013, discharge summary is annexed with the complaint. It is the case of the complainant that complications led to a SOS corrective procedure being undertaken after the surgery called ‘emergency tracheostomy’ on 4th day of the surgery as the mother of the complainant was having persistent respiratory distress which the complainant alleges was the result of medical negligence of the doctors at OP hospital.
It is the case of the complainant that as the patient was a known case of stage IV cancer; surgery should not have been done. It is further stated that as an experiment to remove the lymphonodal mass, the OP doctors carried out the surgery on the mother of the complainant to satisfy their own ego. It is further alleged that the surgery hastened the death of the mother of the complainant who may have lived for some more time with the family. It is stated that mother of the complainant passed away on 23.04.2013 just about 40 days after the discharge from the OP hospital. It is the case of the complainant that she remained unconscious, bedridden, weak and her condition deteriorated leading to her death. For this act of medical negligence as alleged by the complainant, he is seeking compensation.
Per contra, the OP has taken a preliminary objection that in the present case no expert opinion has been taken from committee of doctors before issuing of notice and therefore the notice issued against the OP ought to be withdrawn. It is stated that any reasonable man entering into a profession which requires a particular level of learning to be called professional of that branch impliedly assures the person dealing with him has the skill which he professes to possess and it shall be exercised with reasonable degree of care and caution he does not, however, assure the client of the result. A physician would not assure the patient of full recovery in every case so does a surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial much less to the extent of 100% for the person operated on. The only assurance which a professional can give or can be understood to have given by implication is that he's possessed of the requisite skill in that branch of profession which is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence.
The OPs further stated that in view of the decision of the Hon’ble Supreme Court in Indian Medical Association vs VP Shantha 1995 SCC (6) 651, the medical practitioners, government hospitals, nursing homes and private hospitals. Nursing homes hereinafter called doctors and hospitals broadly fall in 3 categories:-
- Where services rendered free of charge to everybody availing the said service
- Where charges are required to be paid by everybody availing the service
- Where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are tendered service free of charges.
It is stated that doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of service undersection to 2(1)(o) of the Act. The payment of a token amount for registration purpose only would not alter the position in respect of such doctors and hospitals.
It is further stated that in Achutha Rao Haribha Khodwa vs State of Maharashtra (1996) 2 SCC 634, it was stated that in the nature of medical profession skill differs from doctor to doctor and more than one alternative course of treatment are available. All admissible negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and the due care and caution. Merely because the doctor chooses one course of action and preference to another one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
It is stated that OP is the healthcare institute in India where medical facilities to public at large are offered free of cost, no money is charged from the patients besides some nominal registration fee. It is stated that the medical practitioner faced with an emergency ordinarily tries its best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Further, a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end dose of medicine to his patient.
It is stated that the surgeons at Bhimrao Ambedkar Institute Rotary Cancer Hospital of All India Institute of Medical Sciences are extremely competent and possess profound experience and knowledge and treatment of advanced cancers, so their decision to operate cannot be questioned.
It is stated that the complainant along with his mother visited surgery OPD on 30.04.2012 for check-up and treatment, the thyroid of the mother of the complainant was swollen from past one and a half years and there was hoarseness of voice for past one month. It is stated that the complainant visited the OP hospital much later in time when the mother of the complainant was not able to sustain with her problem. It is stated that after investigation ‘Anaplastic Carcinoma Thyroid with multiple lymph node enlargement’ was diagnosed. The tumor was fixed since the same was considered not resectable. It is also stated that in patients with fixed anaplastic carcinoma of thyroid surgery as the initial mode of therapy should be avoided rather in these type of cases, patients should first receive chemotherapy and radiotherapy and after that the patient should be re-assessed for surgery. It is stated that since the tumor was not considered resectable so Dr. Anurag Shrivastava, Professor and head of department of surgical disciplines referred complainant’s mother to Professor PK Julka, head of Radiation Oncology, Bhim Rao Ambedkar Institute Rotary Cancer hospital of AIIMS on 04.05.2012. It is stated that after considering the excellent response from radiotherapy and six cycles of chemotherapy, decision of surgery was taken in multidisciplinary discussion including department of Radiology (Radiology conference) as well as with Professor PK Julka (department of Radiotherapy).
It is stated that the position was explained to the family of the patient that risk is involved in the surgery and before surgery all the concerned documents regarding consent of surgery was signed by the family members of the patient by their mutual decision. It is stated that on 28.02.2013 patient underwent surgery regarding the above mentioned tumour and post operatively the mother of the complainant, had respiratory distress for which tracheostomy was performed on day 4 post-surgery. The complainant’s mother also had a wound infection for which few sutures were removed to allow drainage. She was discharged on 11.03.2013 with tracheostomy in situ and was re-admitted on 17.03.2013 for wound infection and was discharged on 30.03.2013. It is stated that since there was a wound infection adjacent to the track host, the patient and her family was advised to stay with the son who stayed in Delhi as there might be a risk of aspiration of infected content into the tracheostomy.
It is stated that the complainant and his other relatives, who are the attendants of the patient were explained that for proper nursing and care, it was necessary for his mother to visit the hospital regularly but the complainant and his relatives prevailed over the doctors and hospital management and took his mother back to the native place, Bihar after a few days of discharge. The mother of the complainant did not get further clinical course and as a result of which patient unfortunately passed away on 23.04.2013. It is stated that there was no delay in operating the patient and a proper treatment was given to the patient to the best of their ability and capacity by the doctors at AIIMS and performed surgery at their best level.
It is also stated that a complaint regarding the same matter was placed before the Delhi Medical Council by the complainant and the executive committee of the Delhi Medical Council said that no case of medical negligence is made out on the part of the doctors of AIIMS.
The Commission has carefully gone through all the documents on record inclusive of reply, rejoinder, evidence affidavits and written arguments of both the parties. Before the allegations of medical negligence alleged by the complainant can be entertained, it must be established whether the case is maintainable against the doctors of a government hospital where no payment was made by the complainant for the services that he availed and thereafter complained of. In this regard the decision of the Hon’ble Supreme Court, in its decision in Indian Medical Association Vs. V. P. Shantha & Ors., reported in (1995) 6 SCC 651, held
(9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
Further, the Hon’ble Supreme Court in Bombay Hospital & Medical Research vs Asha Jaiswal Civil Appeal No. 1658 of 2010 decided on 30.11.2021 quoted Dr. Harish Kumar Khurana v. Joginder Singh & Others 14 (2021) SCC Online SC 673 held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence. The Court held as under:
“11. ........ Ordinarily an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated. The learned counsel has also referred to the decision in Martin F.D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 wherein it is stated that simply because the patient has not favourably responded to a treatment given by doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitor. It is further observed therein that sometimes despite best efforts the treatment of a doctor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is negligent.
xxx xxx xxx
14. Having noted the decisions relied upon by the learned counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. In the instant case, apart from the allegations made by the claimants before the NCDRC both in the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors who, on their own behalf had explained their position relating to the medical process in their affidavit to explain there was no negligence. ..................”
35. It may be mentioned here that the complainant had led no evidence of experts to prove the alleged medical negligence except their own affidavits. The experts could have proved if any of the doctors in the Hospital providing treatment to the patient were deficient or negligent in service. A perusal of the medical record produced does not show any omission in the manner of treatment. The experts of different specialities and super-specialities of medicine were available to treat and guide the course of treatment of the patient. The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures…….
The Bombay High Court recently in Medicos Legal Action Group vs Union of India (Through Secretary, Department of Consumer Affairs, Ministry of Consumer Affairs, Food and Public Distribution) on October 25, 2021 discussed whether repealing and replacing the 1986 Act with the 2019 Act had intended to give a meaning to the term “service” different from the one given by the Supreme Court, in its decision in Indian Medical Association Vs. V. P. Shantha & Ors. and decided that it is not so. The SLP filed in this regard has also been dismissed.
In light of the decisions of the Hon’ble Supreme Court in V.P Shanta it can be safely held that since the complainant was provided free services in AIIMS, the present complaint is not maintainable. This Commission is also of the view that the conducting of surgery by the doctors at AIIMS on the mother of the complainant does not amount to being negligent in view of the judgment of the Hon’ble Supreme Court in Bombay Hospital & Medical Research vs Asha Jaiswal decided on 30.11.2021 and quoted in paras 11 and 14. It seems the complainant has conveniently forgotten that these are the same doctors on whose advice the mother of the complainant had started feeling better after the prescribed treatment and simply because the surgery did not have the desired result, it cannot be stated that the doctors were negligent. The complainant being an educated man could have refused surgery to be conducted on his mother.
The complaint being devoid of any merit is dismissed without any order as to costs.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
