DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.775/2008
1. Sh. K. K. Sharma
S/o Sh. Baij Nath
2. Sh. Kamal Kumar Sharma
S/o K. K. Sharma
3. Sh. Vikas Sharma
S/o K. K. Sharma
All R/o
H.No.532, Sector-7, Urban Estate,
Karnal
4. Smt. Indu Sharma
D/o Sh. K. K. Sharma
W/o Sh. Pardeep Sharma
R/o Flat No.114, Princess Park,
Sector-6, Plot No.33, Dwarka,
New Delhi
5. Smt. Vandana Sharma
D/o Sh. K. K. Sharma
W/o Sh. Ashish Gautam
R/o H.No.1177/8,
Rudra Colony, New Canara Bank,
Kurukshetra. ….Complainants
Versus
1. Dr. D. Gosh, Specialist in Oncology
and other erring officials of Batra Hospital
& Medical Research Centre of Ch.
Aishi Ram Batra Public Charitable Trust,
1, Tughlakabad Institutional Area,
New Delhi-110062
2. Managing Director
Batra Hospital & Medical Research Centre of Ch.
Aishi Ram Batra Public Charitable Trust,
1, Tughlakabad Institutional Area,
New Delhi-110062
3. The New India Assurance Company Ltd.
2/2A, 3rd Floor, Laxmi Insurance Building,
Asaf Ali Road, New Delhi-110002
through its Divisional Manager
4. United India Insurance Company Ltd.
DO-18, A-11, First Floor, Sector-19,
Noida-201301 (U.P.)
through its Divisional Manager ….Opposite Parties
Date of Institution : 10.12.08 Date of Order : 08.08.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
According to the complainants, Smt. Nirmal Sharma, the wife of the complainant No.1 and the mothers of complainants No.2 to 5 had suffered from Carcinoma of breast in the year 1994 which was at initial stage and she got the treatment from OP No.2 hospital from OP No.1 and she got well and got rid off the abovesaid disease and thereafter the OP No.1 had been calling her every year for the examination. It was well within the knowledge of OP No.1 that she was a chronic diabetic patient and also suffering from hypertension. Thereafter, she was diagnosed as bronchitis, after the X-ray was done at Karnal and since the OP No.1 had cured her for Carcinoma of breast the complainant No.2 and his mother decided to get the treatment for bronchitis from OP No.1 and the complainant No.1 to 3 took her to OP No.1 for the treatment of bronchitis on 26.03.2008 and paid Rs.270/- as doctor fee and Rs.30/- as OPD registration charges. She was examined by the OP No.1 who advised the following tests:-
- Mammography of both breast
- CT Scan CT. Upperabdo with contrast
- CT Scan Contrast Media
- Ultra Sound Sonwhole Abdomen
A sum of Rs.6600/- was charged from the complainant No.2 for the abovesaid tests. Ultrasound, mammography and other tests were conducted but for conducting media contrast scan she was called in the room at about 5.00 p.m. After entering in the room one injection was administered to her by a nurse and after 15 minutes she came out of the room. As she came out of the room she fell down on the floor and the suds (jhag) were coming out of her mouth and nose. Nether any doctor nor any nurse nor any other official of OP No.2 hospital had come with her at that time, her condition started deteriorating, the complainant No.2 rushed to call the doctors and nurse but none of them came to attend her due to which reason she died. It is stated that she died because of gross negligence on the part of the OP No.1 and the officials of OP No.2 hospital; that the OP No.1 was well aware of the fact that she was a diabetic patient and was also suffering from hypertension and there was possibility of side-effects/reactions, if the patient suffered from diabetes, hypertension and respiratory problem. It is stated that contrast media is never given to a patient unless a doctor is present and patients are usually screened before being given contrast by means of series of questions and these “typically” include an allergy history and a history of any asthma and diabetes; that reactions can range from minor to severe, in the worst case scenario, resulting in death; every radiologist and others involved in radio diagnostic procedure should be aware of the potential life threatening effects; that especially patients with risk factors for side effects including cardiovascular disease, diabetes, renal impairment and particular comedication should be monitored carefully with an adequately organized and operating medial emergence team on duty; that appropriate guidelines for the treatment of acute adverse reactions and equipment should be available in the room where the contrast medium is given. However as per the averments made in the complaint, in the present case no such procedure was adopted by the OPs and equipments were not available in the room where the contrast medium was given to Smt. Nirmal Sharma. There had been gross negligence on the part of the OPs by not attending Smt. Nirmal Sharma as after administering the injection, her condition became precarious but nobody of the hospital bothered to attend her when she was struggling for her life. It is stated that had the doctors of OP No.2 hospital attended her immediately and provided required treatment to her, her precious life could have been saved but she died because of the gross negligence on the part of the OPs which amounts to deficiency in service on the part of the OPs. It is stated that complainant No.1 lost his consortium and the complainants No.2 to 5 love and affection of their mother and as such the complainants are individually entitled to compensation. Hence, the complainants have filed the present complaint for directing the OPs to pay Rs.5 lacs each (Rs.25 lac) and Rs.22,000/- as ligation charges to them.
Complaint was filed before the Delhi State Consumer Commission and registered as complaint No.08/151. Vide order dated 06.11.2008, the State Commission sent the matter to this Forum by reducing the claim of compensation to Rs.20 lacs.
In the joint written statement OP No.1 & 2 have pleaded as under:-
“i) That Mrs. Nirmal Sharma wife of Mr. Krishan Sharma was suffering from Carcinoma Breast and was diagnosed and treated by surgery and therapy 14 years back in respondent No.2 Batra Hospital and Medical Research Centre and was undergoing treatment under the respondent No.1 Dr. Gosh Head of Oncology. That she has been regularly coming to Batra Hospital for the last 14 years for check up, investigation and follow up treatment. That she came to the respondent No.1 Dr. D. Gosh on 26.03.2008 with complaints of Dyspnoea, cough and chest pain as well respiratory distress which was persisting for three months inspite of treatment by local doctors in Karnal. That considering the background of long standing cancer for 14 years and persistent cough and breathlessness respondent No.1 advised C.T. scan chest, mammography and ultra sound of the abdomen. That the contrast enhanced C.T. Scan which is mandatory in such patients was done at 4.37 p.m. on 26.03.2008 by technical supervisor Mr. Jojy Joseph and Mr. Rolland under the supervision of Medical doctors and the contrast was administered by the CT staff nurse. The CT was completed and no untoward effect was seen during CT scan. That after Mrs. Nirmal Sharma left the CT room two other patient Pratap Kaur and N.R. Kurana also underwent CT scan with same batch contrast at 4.54 p.m. That after the 30 minutes Mrs. Nirmal Sharma while using the bathroom in the hospital corridor collapsed. That she was promptly brought in the radiology room and all the doctors started emergency treatment. That the respondent No.1 Dr. D. Gosh along with his team of doctors reached immediately. That anesthetist, cardiologist and physician were called immediately and all the emergency treatment were started. The treatment given was comparable to the best in the city and country. The patient after resuscitation was shifted to medical ICU where unfortunately she died. That the allegations that the medicine (contrast) was not appropriate is appropriate is absolutely wrong. That she was administered omnipaque (Iohexol) 300 mg 50 ml with lot No.10652871. That date of manufacture was 11.11.2007 and expiry date was 10/2010 that it was procured from MS GE Health Care under import licence NOFF-98-A10003 Lot 10652874. That MS GE Health Care who provided this contrast is one of the top most companies in the world and this contrast is used all over the world. That it is submitted that the patient Mrs. Nirmal Sharma was well look after in respondent no.2 hospital for 14 years and best possible diagnosis and care was given and at no point there was any negligence at any stage. The medicine provided was one of the best in the world and treatment and investigation was provided by senior most doctors who have 30-40 years of experience in the field.”
Other averments made in the complaint have been denied.
In the written statement OP No.3 Insurance Company has pleaded that the deceased had been given the best available treatment and there is no negligence on the part of OP No.1 and the doctors followed the standard surgical and medical principles in treating the patient.
OP No.4 is exparte.
Complainants have filed the affidavit of the complainant No.1 in evidence. On the other hand, OPs No.1 & 2 have filed the affidavit of OP No.1 and the affidavit of Dr. Rakesh Kr. Chaturvedi, Director Medical Service in evidence.
OP No.3 has filed the affidavit of Sh. Subhash Chandra, officer in evidence.
OP No.1 died during the pendency of the complaint.
During the course of the proceedings, it transpires that the original medical record in respect of the treatment provided to Late Smt. Nirmal Sharma had been lying at P.S. Ambedkar Nagar in DD No.27A dated 26.03.08. The original record pertaining to DD No.27A dated 26.03.08 has been summoned from P. S. Ambedkar Nagar and tagged with the file.
On 14.07.17 the complainant filed the original letter F-13(74)/2006-07/MSNH/ RTI/DHS/HQ/61032 dated 26.11.10 on the record.
Written arguments have been filed on behalf of the complainant and OP No.2.
We have heard the oral arguments on behalf of the complainants and OP No.2 and have also gone through the file very carefully.
The main submission made on behalf of the complainants is that the OP No.1 (since died) had very well known that the patient Smt. Nirmal Sharma had been suffering from chronic diabetic and hypertension and, therefore, while conducting the media contrast scan on her on 26.03.08, the OP No.1 and the team of the doctors must have taken special care and attention and either the OP No.1 or some other trained doctor must have been present in the room while conducting the media contrast scan on her. It is further submitted that while conducting media contrast scan neither OP No.1 nor any trained doctor was present in the room as a result of which soon after conducting the said test, her condition became deteriorated and that she died because of non-providing medical aid to her in time. The contention, in sum and substance, is that the death of Smt. Nirmal Sharma took place due to the medical negligence on the part of the OP No.1 (since deceased) and the staff of OP No.2 hospital and, therefore, they are liable to compensate the complainants. In support of the contention that the OP No.1 & 2 had not given proper medical attention to Smt. Nirmal Sharma, our attention is drawn to the expert report filed on the file of D.D. No.27A dated 26.03.08 P.S. Ambedkar Nagar and also the letter dated 26.11.10 received under the RTI Act by the complainants and filed before this Forum on 14.07.17. On the other hand, the submission made on behalf of the OP No.2 is that Smt. Nirmal Sharma was an old patient getting treatment from OP No.1 and while providing the medical treatment to her on 26.03.08 including doing the media contrast scan all standard surgical and medical principles in treating her had been observed and she had been given best available treatment and, hence, it is not a case of medical negligence.
Let us proceed to examine the respective contentions made on behalf of the parties.
It is not disputed on behalf of the OP No.1 either in the reply or in the affidavit of the witness that Smt. Nirmal Sharma was a chronic diabetic and hypertension patient. Admittedly, she had been getting treatment from OP No.1 doctor (since deceased). It is not disputed on behalf of the OP No.1 & 2 that media contrast scan has to be undertaken /performed under the supervision of a doctor and it is never performed unless a doctor is present. Patients are usually screened before giving the said test by means of series of questions including allergy history and/or the history of an asthma and diabetes. It is also not disputed that reactions during the said test can range from minor to severe and in the worst case the death of the patient may also take place. It is not disputed that the patient with high risk factors can have the side effects including cardiovascular disease, diabetes, renal impairment and particular comedication and must be monitored carefully with an adequately organized and operating medical emergency team on duty. The complainants have filed the copy of the guidelines for conducting the media contrast scan test as Annexure-D which substantiate the above submission made on behalf of the complainants.
The casa of the OP No.1 and OP No.2 is that the said test had been done at 4.37 p.m. on 26.03.2008 by technical supervisor Mr. Jojy Joseph and Mr. Rolland under the supervision of Medical doctors and the contrast was administered by the CT staff nurse. We are sorry to say that the names of the medical doctors under whose supervision the said test had been conducted/administered have not been disclosed either in the reply or in the affidavit of witness of the OP No.1 & 2. Therefore, we are not inclined to believe that the said test had infact been conducted under the supervision of the team of doctors. The case of the OP No.1 & 2 is that the said test was thereafter conducted on two other patients and that after about 30 minutes Smt. Nirmal Sharma while using the bathroom in the hospital corridor collapsed and she was promptly brought in the radiology room and all the doctors started emergency treatment and also that the OP No.1 alongwith his team of doctors reached immediately and anesthetist, cardiologist and physician were called immediately and all the emergency treatments were started and the treatment given was comparable to the best in the city and country and that the patient after resuscitation was shifted to medical ICU where unfortunately she died. Copies of the medial record in this regard have been filed as Annexure R-5, Annexure R-6, Annexure R-7, Annexure R-8 & Annexure R-9. We find it very disgusting that the OP No.1 & 2 have not marked annexures nos. on relied documents though the copies have been placed on the record. Annexure R-5 is stated to be record of Code Blue. We mark it as Mark A for the purposes of identification. The time of arrival of doctors i.e. Medicine Resident, Anesthesia Resident and Cardiology Resident has been record as 4.45 p.m. On the other hand, the case of these OPs is that media contrast scan was conducted /administered to the patient at 4.37 p.m. and that it was only after 30 minutes that while using the bathroom in the hospital corridor she collapsed. Therefore, these 3 doctors could not have any reason to come to the rescue of the said patient at 4.45 p.m. The incident of collapse must have taken place at or about 5 p.m.
Anesthesia Notes is stated to be Annexure R-6. We mark it as mark B for the purposes of identification. The same was also recorded at 4.45 p.m. It inter-alia provides that the patient was attended at CT scan room and her B.P. was unrecordable, HR not recordable, heart sound not audible and CPR was done and some injection was administered. ECG was done and she was declared dead. It means that as per the Anesthesia Notes recorded at 4.45 p.m. Smt. Nirmal Sharma had died at 4.45 p.m. If the documents Mark A and Mark B are believed, then the theory/story presented/prepared by OP No.1 & 2 that when she was going to use the bathroom in the hospital corridor after about 30 minutes she collapsed will fall down flatly and if this theory/story is believed then the documents Mark A and Mark B are falsified. Cardiology Note and ECG report is stated to be Annexure R-7. We mark it as Mark C for the purposes of identification. The same is also recorded at 4.45 p.m. The same reasoning applied by us to the document Mark A and Mark B shall apply to Mark C.
Physician note is stated to be Annexure R-8. We are not able to lay our hands on any such Physician note though the same has been shown in the index of documents filed on behalf of the OP No.1 & 2. Copy of death summary is stated to be Annexure R-9 and the death certificate as Annexure R-10. We mark the copy of the death summary as Mark D for the purposes of identification. The same was prepared on 26.03.2008 at 6 p.m. It would be useful to reproduce the contents of the same which have been shown in the true typed copy of the death summary. The relevant portion of the same reads as under:-
“Diagnosi:- Carcinoma Breast, Extensive, ? Acute MI.
Known case of carcinoma breast with extensive metastasis was on treatment. She was having cough and SOB with orthopnoea therefore since long. She attended onco OPD and was advised CECT chest. After scan of chest was done. She was alight but after 20 min she complain of chest pain and she had a cardiorespiratory arrest. Blue code team was altered. CPR with intubation & Inj Atropin, Adrenaline were given. Despite all supportive measure she could not be received and declared dead at 6 pm on 26.03.08.”
As per the death summary she was declared dead at 6 p.m. and not at 4.45 p.m. as recorded in the document Mark B. It is not palatable to our mind that Smt. Nirmal Sharma had died twice once at 4.45 p.m. and again at 6 p.m. It shows that the OP No.1 & 2 infact tried to manipulate their medical records to suit their requirement but they could not do so and the documents filed by them have exposed their falsehood. According to the death summary, the patient had got a cardio respiratory arrest. In the copy of the death report which we mark as Mark E for the purposes of identification extensive metastasos Acute Anterior wall MI has been shown to be the cause of the death of the patient. The respiratory arrest and cardiac arrest were the severe life-threatening consequence in the case of the media contrast scan as mentioned in the medical literature Annexure-D and not disputed on behalf of the OP No.1 & 2.
From a perusal of the file of DD No27A dated 26.03.2008 P.S. Ambedkar Nagar it reveals that police investigation was got conducted in the matter on the direction of the Metropolitan Magistrate U/s 156(3) Cr.P.C. in a complaint case filed on behalf of the complainants against OP No.1 and some samples were sent for forensic examination to the Forensic Science Laboratory, Ahmadabad. The forensic medical examination is of no consequence so far as the present complaint is concerned.
The order bearing No. DMC/DC/14/2/Comp.493/2011/33561 dated 27.07.2011 of Delhi Medical Council passed on a complaint moved on behalf of the complainant No.1 against the doctors of the OP No.2 hospital has been placed on the police file which discussed the matter at length and made two observations. These two observations are material and they are reproduced as hereunder:-
“1. The time and version of events related to C.T. chest on 26th March, 2008 as narrated in the complaint, the written statement of the doctors of the said hospital and copy of medical records of the said hospital are at variance which could be due to minor difference in the time settings of the C.T. Machine. The record keeping of the said Hospital left much to be desired. The consent form for C.T. Scan did not bear the signatures either of the patient or her attendant and also does not specify the likely complication associated with the procedure.
2. It is noted that as per Post-Mortem report No.304/08, the viscera was to be subjected for chemical analysis “especially for contrast dye se”, however, the Forensic Science Laboratory report No.FSL/EE/2010/T/1759 did not give any finding/opinion in this regard. It only mentions that no poison was detected. Similarly the subsequent opinion dated 20th April, 2011 on Post- Mortem report no.304/08 give the cause of death as septicemia subsequent of breast carcinoma, whereas there is nothing in the clinical presentation as per medical records of the said Hospital to substantiate opinion as to septicemia. It seems from material on record that the patient after undergoing C.T. Scan most probably had an allergic contrast reaction. Such reaction can occur even inspite of giving best quality contrast agents by and following all precautions. The complication was managed by initiating emergency treatment as per standard protocol. However, inspite of the same, the patient could not be saved.
In the light of the observations made hereinabove, it is the decision of the Delhi Medical Council that no medical negligence can be attributed on the part of the doctors of Batra Hospital and Medical Research Centre in the treatment administered to late Smt. Nirmala Sharma. However, the hospital authorities of the said hospital are directed to take necessary steps to ensure better record keeping.”
Thus, Delhi Medical Council gave a decision that no medical negligence could be attributed on the part of the doctors of OP No.2 hospital in the treatment administered to Late Smt. Nirmal Sharma but at the same time the hospital authorities were directed to take necessary steps to ensure better record keeping. We are sorry to say that the Delhi Medical Council took a wrong decision in view of the observations reproduced hereinabove. Delhi Medical Council found variance which could be due to minor difference in the time settings of C.T. machine and the consent form for C.T. scan did
not bear the signatures either of the patient or her attendant and also did not specify the likely complication associated with the procedure.
In view of the specific observations made by the Delhi Medical Council it was not desirous for it to reach to the conclusion that no medical negligence could be attributable on the part of the OP No.2 hospital. Delhi Medical Council further observed that as per post-mortem report the cause of death was septicemia subsequent of breast carcinoma whereas there was nothing in the clinical presentation as per medical records of the OP No.2 hospital to substantiate opinion as to septicemia. This observation made by the Delhi Medical Council also categorically demonstrated that the doctors of OP No.2 hospital had made some interpolation with their record and instead of making out a case of death due to cardiac arrest they tried to show the cause of death as septicemia. Therefore, we do not place any reliance on the report of Delhi Medical Council. Let a copy of order of Delhi Medical Council dated 27.11.11 be placed on the file of the present case.
Thus, there is absolutely no evidence to show that media contrast scan had been conduced after taking written consent of the patient or her attendant or was done in the presence of or under the supervision of doctors or that medical treatment had been provided to the patient immediately after her condition deteriorated. In the information sought under the RTI Act filed on 14.07.17 the cause of death has been shown as cardiogenic shock.
In view of the above discussion, we hold that the OP No.1 & 2 were guilty of gross medical negligence while giving treatment to Smt. Nirmal Sharma. OP No.1 has since died. However, OP No.1 was insured from OP No.3 the New India Assurance Company Ltd. We allow the complaint and direct the OP No.3 and OP No.2 hospital jointly and severally to pay Rs.8,00,000/- (Rupees eight lacs only) in lumpsum to the complainants towards compensation for loss of consortium to complainant No.1 and love and affection to remaining complainants, Rs.25,000/- towards cost of litigation within a period of 30 days of the date of receipt of copy of this order failing which OP No.3 & 2 shall become jointly and severally liable to pay interest @ Rs.6 % per annum on the above said amount of Rs.8 lacs from the date of this order till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 08.08.17.
