Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.03/04.01.2021
Rakesh Kumar Uppal son of Shri Mangal Dass
R/o F-19/58. Sector -8 Rohini, Delhi-110085 ...Complainant
Versus
OP1. BLK Super Speciality Hospital through
its Medical Director, Pusa Road New Delhi – 110005
OP2. Dr. Ishwar Bohra, BLK Super Speciality Hospital
Pusa Road New Delhi – 110005
OP3. Dr. Dharma Chaudhary, BLK Super Speciality Hospital
Pusa Road New Delhi – 110005 ...Opposite Parties
Senior Citizen Case
Date of filing 04.01.2021 Date of Order: 09.02.2024
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1.(Status of parties in the complaint) - This complaint was filed by complainant/Sh. Rakesh Uppal u/s 34 of the Consumer Protection Act, 2019. He is husband of Smt. Madhu Uppal/patient (since dead, hereinafter referred as 'patient' or 'wife of complainant' or otherwise by her name) and she was initially treated as indoor patient of OP1-Hospital but discharged for want of recovery and then she died during her treatment as indoor patient at AIIMS New Delhi. OP1 is a Super- Specialty Hospital and OP2 is an Orthopedic Doctor of OP1, who attended and treated the patient Mrs Madhu Uppal. OP3 is also another Doctor (Haemato-oncology) of OP1 in the team of treating doctors.
1.2. (Introduction to consumer dispute) –The complainant has grievances against OPs for deficiency of services and unfair trade practice. His wife had pain in left leg, thus on 19.11.2019 she consulted Dr. Dinesh Mittal based in Shalimar Bagh and he advised Light Chain Assay (Kappa/Lambda) and bone marrow tests after examining her. On 20.11.2019, she was taken to Hospital/OP1 for her further diagnosis and treatment. Initially she was taken to Emergency-OPD of OP1, where she was examined by OP2/ Dr Ishwar Bohra, who advised immediate admission and operation of left leg. She was hospitalized as an indoor patient on advice of OP2, she was admitted and shifted from Emergency-OPD to Room no.3333, she remained under the treatment of OPs being team of doctors but her condition worsened day by day despite her shifting to MICU and then to HDU. She was not properly diagnosed, attentions were not given from the very inception and she became brain dead from 21.11.2019, which was not disclosed to the complainant and his family but revealed subsequently. She was receiving treatment as an indoor patient under OPs from 20.11.2019 till her discharged on 19.12.2019, when she was brought and admitted in AIIMS on 19.12.2019 but she died there on 05.01.2029.
The OPs failed to render urgent medical attention and care; she was sent from emergency OPD to ward room, without looking to need of immediate to record blood sugar level, BP and requirement for admission in ICU, for want of such attention and action, she was found unconscious, which persisted till last, whereas at the time of her examination and admission, she was conscious, responsive and alert. The OPs are negligent medically and otherwise too, since things were left to nursing staff vis a vis huge amount was charged from the complainant. She died on account of bad diagnosis, wrong treatment, gross negligence and inhuman approach on the part of OP1/Hospital and its attending doctors The complainant seeks refund of medical expenses of Rs.20 lakhs, compensation of Rs. 50 lakhs for death by negligent medical treatment, deficiency of services, Rs.10 lakhs compensation in lieu of mental agony, litigation expenses of Rs.1,00,000/- and other appropriate relief.
But the OPs in their joint written statement deny all such allegations of want of diagnosis, treatment, negligence, attention approach. The OP1 has high duties towards its patient and she was given the best and timely treatment needed, all requisite attention, care and treatment was rendered; it was started from the very inception on her admission on 20.11.2019 by appropriate tests for planned surgery. There was not requirement to shift her from emergency- OPD to ICU, that is why she was admitted in ward. However, during intervening night of her stay in the ward, she developed medical complications which attended by nursing staff and then medical team led by Doctor/OP2 with the counseling of attendant and she was shifted to MICU, subsequently to HDU. But later she got discharged by the complainant of their own. The complainant is not entitled for any of the reliefs sought for.
1.3. (Other factors) - The complaint has been in narrative with details including of date, names of doctors, condition of patient and attending of patient from time to time, nature of treatment, tests, investigation, prescriptions etc. Similarly, the OPs in their reply have also given details of treatment with clinical and other reports. In the same way, when case was at evidence stage, these features have been repeated by the parties, which were further reiterated at the stage of final arguments. Therefore, it is appropriate to put the case of each party at one place for the sake of brevity and clarity vis a vis to avoid its repetition,
1.4 (Medical terminology with simple ordinary meanings ) - Since, the complainant's wife/patient was subjective to various examination, tests, investigation, treatment etc. There are many medical terminology mentioned in such progress notes, investigation, etc. however, they are not explained. They are material and relevant, they are being mentioned with their ordinary/simple meanings to depict the nature of disease, its diagnosis, tests and treatment and also to appreciate the rival plea and to unfold circumstances. The same are being introduced at this stage -
(i) Light Chain Assay (Kappa/Lambda) – There is two types of light chain - Kappa and Lambda light chains. A free light chain test measure the amount of lambda and kappa free light chain in the blood. If the free light chain is higher or lower than normal, it means there is disorder of the plasma cell. This is a test to ascertain plasma chain disorder and it is conducted by blood or urine investigations
(ii) Tracheostomies state - tracheostomies is a surgically created hole in the wind-pipe that provide an alternate air passage for breathing.
(iii) Multiple-myeloma - Multiple myeloma is a cancer that forms in a type of white blood cell called a plasma cell. Since the plasma cells are a type of white blood cell in the bone marrow. With this condition, a group of plasma cells becomes a cancerous and multiples. This disease can damage the bone, immune system, kidney and red blood count.
(iv) Multiple-myeloma ISS-III - it means stage 3 is the terminal stage and most advanced stage of this type of rare cancer. The doctors use the international staging system to determine the stage of this cancer. This system is based on the levels of serum beta-2 micro-globulin and serum albumin.
(v) Fronting from mouth - It is called foaming coming from mouth, it happens when excess fluid in month or lungs mixes with air, causing froth to appear. This symptom can be caused by several serious health conditions. Further unexpected front or foam coming from mouth is rare and serious symptoms.
(vi) Altered sensorium (or clouded-sensorium ) - altered sensorium is a medical condition characterized by the inability to think clearly or concentrate or altered level of consciousness.
(vii) Digital X-ray left knee - Digital X-ray left knee is an imaging technique to assess the left knee joint for bone quality, alignment and the extent of degenerative changes within the knee.
(viii) pathological fracture - It is fracture in a bone, A break is called a pathological fracture when force or impact did not cause the break to happen but underlying disease leave the bones weak and brittle. In case one moves wrongly or shift its body weight in a way that puts pressure on weak bone, then facture happens.
(ix) lytic lesion rooted over skull - Lytic lesion are area where bone has been deteriorated leaving hole in the bone [OR spots of bone damage that result from cancerous plasma cell building up in bone marrow.
(x) Hypoglycemic encephalopathy - It is a metabolic encephalopathy due to extremely low blood glucose. Such patients often suffer from the disease suddenly, which is initially characterized by multiple symptoms such as lags in response, confusion, mental and behaviour disorders, and adverse physical activity.
(xi) T Piece with 7 liter of oxygen - It is T-shape tubing connecting to an endotrached tube is used to deliver oxygen therapy in an intubated patient who does not require ventilator.
(xii) Refractory septic shock - a clinical condition characterized by persistent hyper-dynamic shock even though adequate fluid resuscitation (individual doses) and high doses of nor-epinephrine.
(xiii) candidemia – Candidemia is defined as the presence of candida species in the blood. It is the common fungal bloodstream infection in hospitalized patients.
2.1. (Case of complainant) –In November 2019 complainant’s wife Smt. Madhu Uppal had pain in her leg, she consulted Dr. Dinesh Mittal, based in Shalimar Bagh, Delhi. He examined the complainant’s wife and suggested light chain assay (kappa/Lambda) and bone marrow test. On 20.11.2019 she was taken to OP1/hospital in the emergency ward, she was examined by OP2/Dr. Ishwar Bohra, who advised immediate admission and operation of leg. The OP2 also advised various tests namely digital skiagram chest-AP, digital Skiagram left knee-AP and lateral and transfusion medicine investigation. Complainant’s wife was admitted, she was shifted from emergency OPD to ward in room no. 3333 and complainant had deposited Rs. 20,000/- besides health insurance card of ICICI Lombard GIC Ltd. for Rs. 5 lakh.
2.2 However, none came to attend patient Smt Madhu Uppal on 20.11.2019 till 7:30 pm, when OP2 visited and informed that operation plan for 21.11.2019 would not be conducted since cancerous cell were found in the blood. He also added that there will be born marrow test firstly and then next course of treatment would be decided. There was no efforts to properly check and examine the condition of patient, the attending nurse just administered glucose strip; there was no blood pressure and sugar level measured. The patient was conscious and fully in the senses.
2.3 It was 3:30 am in the intervening night of 20.11.2019 & 21.11.2019, the complainant being awaken found the patient was uncomfortable, with blood oozing from her mouth. It was immediately reported to nursing staff, who in turn informed the doctor, who visited and examined her for 10-15 minutes; she was un-conscious and she put to oxygen by bringing cylinder but it was stated by doctor that it may be due to lowering of sugar level considerably. She was shifted to MICU, there was RBS 32mg/dl, she was unresponsive and fronting at mouth. She was intubated and put on ventilator support. The complainant was just informed by MICU that she is on ventilator, without further information of her physical condition and cause for her such condition, it was pacified that after examination, exact cause will be identified and treatment would be followed.
2.4 In the morning of 21.11.2019, it was apprised that patient is not recovering and dialysis would be required vis a vis many tests were performed during that period, but not disclosed to the complainant. The actual position of patient was with-held from the complainant; however, she remained in MICU from 21.11.2019 to 04.12.2019. The complainant was also made to purchase medicine of lakhs of rupees out-side during this tenure. No movement was found in the patient during visiting hours between 4.00pm to 4:15pm, she was always found on ventilator. Thence on 05.12.2020, she was shifted from MICU (medical intensive care unit) to HDU (high dependency unit) by stating the infection in MICU may affect adversely her condition. She remained on ventilator even in HDU. However, the prolonged treatment increased worries and her anxiety of the complainant, the complainant sought true position of the patient then Dr. Satinder, Neurologist revealed that brain of the patient became dead long back on 21.11.2019, there are no chances of her recovery and there is no treatment for the same. The complainant was advised to take back patient at home. It shocked the complainant. The complainant paid to OP1 an amount of Rs. 12,13,563/- medical bill to OP1 and payment of other amount of Rs. 5,70,000/- approximately on medicines and tests besides amount of Rs. 3,50,000/- on medicines purchased from outside.
2.5. The complainant was disappointed and he looked for an alternate and ultimately he shifted his wife at AIIMS New Delhi on 19.12.2019 and got her admitted there. When complainant’s wife was admitted in AIIMS on 19.12.2019, the hospital found that she was brought with altered sensorium and in tracheostomised state with ventilator support. She was previously admitted in a private hospital with multiple myeloma, left femur pathological fracture, renal dysfunction, encephalopathy and candidemia and was being treated for the same. She remained admitted at AIIMS from 19.12.2019 till her death on 05.01.2020. As per death summary, she remained critical following that and developed cardiac arrest on 05.01.2020, CPR was started immediately but despite all efforts she could not be revived and died.
2.6 The OP is not only indulged in deficiency of services but also guilty of unfair trade practice, since because of deficient services and medical negligent, complainant’s wife died. She was admitted in the hospital/OP1 on 20.11.2019 as quite conscious and in her senses but she was not examined carefully thoroughly or deeply to ascertain actual condition of the patient, the urgent medical attention or care ought to have been given was not extended. She was left at the care of nursing and support staff, which reflect negligent approach of the OP. She was admitted as a patient under orthopedists but her other health conditions were not examined and she was sent to ward room from emergency OPD instead to ICU to monitor her condition. There is also unfair trade practice by falsely mentioning in the discharge summary that Smt. Madhu Uppal got discharged against medical advised. The attending doctors of AIIMS also opined that the patient was brought in critical condition and her treatment in private hospital rendered her this health condition, in that condition there was belated stage of AIIMS.
2.7. OP2/Dr. Ishwar Bohra was unit head along-with Dr. Kshiteej since admission and OP3 Dr. Dharma Chaudhary have indulged in mis-conduct and because of death of Smt. Madhu Uppal, the complainant and his family members suffered great loss of love, affection and consortium. That is why the present complaint for the relief claimed. The complaint is accompanied with copy of death summary report by AIIMS, medical record of OP1, bills of amount charged by OP1 and identity proof of complainant.
3.1. (Case of OPs)- The OP1 through its authorised representative Dr. Suhas Parmani, the OP2 and the OP3 filed their joint written statement by denying all allegations of complaint against OPs with the support of documentary record of patient; the OPs make reference of medical record in respect of the patient Smt. Madhu Uppal and except that record, all other allegations are denied by them.
3.2 The OP denies that the patient did not have previous history till November 2019 but on the contrary she was patient of diabetes and hypertension. She had pain swelling and decreased movement in her leg in the month of June 2019. At the time of her admission in OP1 hospital, her urine acid and serum creatinine level were high, indicating renal function compromise, she was suspected to be suffering from multiple myeloma. At the time of her admission, she had a fracture in her left distal shaft of femur and was planned for surgery namely plating/nailing of left femur.
She was under observation of emergency doctor and she was examined by emergency medical officer, orthopedics doctor and Haemato-oncology team. She was given all necessary treatment in emergency department as per standards of medical practice and then admitted in the Ward, there was no need of her sending to ICU from emergency OPD. Moreover, subsequently in the ward she was immediately attended by the assigned nursing staff and all treatment orders were executed as per directions of the doctors. Her blood pressure and sugar level were also checked, the BP was checked at 5:30 pm and 10 pm on 20.11.2019; her sugar level was measured at 7:15 pm and 11 pm on 20.11.2019 and at 4:30 am on 21.11.2019 and was found to be 32mg/dl, immediately 25% dextrose intra-venous infusion was given and it was found 182mg/dl. The OPs deny that RBS was found to be 32 mg/dl after shifting to MICU. Whereas, after examining the patient, the doctor’s counseled the patient attendant for shifting the patient for MICU for observation. The attendant was also counseled for need to intubate the patient and consent was taken from the son of patient. The condition of patient was also explained to the son of patient as well as plan of care in detail. The family members (son, husband, sister-in-law and her nephew) were also explained the condition of patient and plan of care on regular basis in detail. Moreover, through-out of stay of the patient in the hospital, the family of patient were briefed regularly about the condition of patient.
The patient was advised for shifting to HDU from MICU by the treating team on 07.12.2019 as per established standard and criteria of patient transfer, clinical judgment and in the interest of patient. The patient was on T-piece with seven liter of oxygen maintaining saturation of 98% and not on ventilator support. The OPs deny the allegation of any statement that patient was brain died long back on 21.11.2019 or there were no chances of any recovery or no treatment is available. Further, there is no such doctor by name Dr. Satinder in that team. The family member had desired against further escalation of treatment on 14.12.2019 and the attendants took the patient away against medical advice by citing no improvement in the condition of patient. The OPs also deny allegations of fleecing the attendants. There is no medical negligence of the treating doctors or of hospital authorities. There is neither any wrong treatment given, nor any negligence to the patient. The complaint is liable to be dismissed. The reply is accompanied with in-patient history, nurse notes, informed consent of procedure, patient family communication record on daily basis, doctors progress notes, denial of consent for proposed treatment, resolution.
4. (Replication of complainant) - The complainant filed detailed rejoinder by re-affirming the complaint correct with explanations but to deny the allegations of written statement. The complainant contends that in order to avoid the responsibility, the OPs are trying to put their onus on attendants regarding shifting of the patient; however, the circumstances do not escape OPs from their liabilities. The patient was not properly attended and treatment was deficient considering the condition of patient. The complainant and other family members were not briefed about the condition of the patient and the facts of fleecing are correct. The complainant was constraint to look for another hospital despite huge payments to OP1 and insurance policy.
5.1. (Evidence)- In order to establish the case, the complainant Shri Rakesh Uppal led his exclusive evidence by filing his detailed affidavit with the documentary record already filed with the complaint
5.2. The OP1 led evidence by filing affidavit of its authorised representative Dr Suhas Parmani (who also authored the written statement) with the support of documents filed with written statement.
OP2 Dr. Ishwar Bohra, Orthopedic, of OP1/Hospital and OP3 Dr Dharma Chaudhary, Haemato-Oncology of OP1 also filed their respective affidavits, by narrating the facts and circumstances to their cognizance and actions; the affidavits of evidence of all the OPs are based on their joint written statement.
6.1 (Final hearing)- The complainant filed written arguments which is blend of their reply and evidence, followed by oral submissions by Shri J.K.Chawla, Advocate of complainant. The complainant also derives reasons from the decision in following cases:
(i) Chandigarh Nursing Home & Anr: Vs. Sukhdeep Kaur 1(2022) CPJ 228 (NC)- there was wrong diagnosis and then wrong treatment, standard protocol for treatment as Syndrome was not followed, whereas the patient was very young age as 12 years, the compensation was directed .
(ii) Indira Gandhi Hospital Vs. Abriham P. Simon 1(2021) CPJ 178 (Ker)- the staff of ICU was negligent and there was also lapse of time in the treatment, which led to the complications, the compensation was determined.
(iii) Yashumati Devi & Anr. Vs. Christian Medical College IV (2021) CPJ 228 (NC)-there was delay in diagnosis and management of stock was a deficiency, which could not be a reasonable or standard practices vis-à-vis there was also urgent need of brain CT scan but it was delayed for more than three hours because of just want of fresh receipt of Rs. 1850/-, despite the amount of Rs.1,50,000/- were deposited in advance, compensation of Rs. 25 lakhs was determined.
(iv) Manoj Kumar Bhagat Vs. Masomat Kanchan Devi III(2020) CPJ 119 (NC)- the patient was prescribed medicine without examining the patient, there was wrong diagnosis since patient was suffering from jaundice and treatment could have been started but it was missed. Compensation with interest was awarded.
(v) Pushpa Vyas Vs. Dr. Sajan Daga & Anr. II (2018) CPJ 111 (NC)- There was lack of diagnostic tests and also delay in referral, it was held deficiency of services and lump sum compensation was awarded on the basis of medical negligence.
(vi) M.C Katare Vs. Bombay Hospital and Medical Research Centre & Ors. II (2010) CPJ 128 (NC)- the patient was suffering from DVT but the surgeon failed to diagnosed it on the basis of clinical examination besides ICU staff/doctor were not alerted about the complication suffered by the patient during surgery vis-à-vis there was failure to maintain full record of diagnosis and treatment, it was held case of medical negligence and relief claimed was allowed which also includes compensation.
(vii) R. K Sharma (Dr.) Vs. Murttiya Devi II (2010) CPJ 401- the order of award of compensation was upheld as there was medical negligence because of wrong diagnosis as a case of TB.
(viii) Basujit Gangopadhyay (Dr.) Vs. Ajayendu Nag II (2010) CPJ 91 (NC)- the critical patient was left under the observation of another doctor and concerned doctor given priority to the commitments elsewhere besides patient was shifted to Ward from ICU because of inability to bear the ICU expenses. It was held case of deficiency of services and medical negligence, the compensation awarded was upheld.
6.2. Similarly, OPs also filed their joint written arguments, which is also based on their reply and evidence, followed by oral submissions by Ms Simran Sharma, Advocate, while opposing the complaint and claims of complainant vis a vis case law presented by the complaint do not apply to the features of present case. However, the OPs fortify their reasons from the decision of following cases:-
(a) Bombay Hospital and Medical Centre Vs Asha Jaiswal & Ors. Civil Appeal no. 1658 of 2010 decided on 30.11.2021 held (para) 36. "....A team of specialist doctors was available and also have attended to the patient but unfortunately nature had the last word and the patient breathed his last. The family may not have coped with the loss of their loved one, but the OP-I and the Doctor cannot be blamed as they provided the requisite care at all given times. No doctor can assure life to his patient but can only attempt to treat his patient to the best of his ability which was being done in the present case as well."
37. "Therefore, we find that the findings recorded by the Commission holding thehospital and the Doctor guilty of medical negligence are not sustainable in law. Consequently, the present appeals are allowed. The order passed by the Commission is set aside.
(b) Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors 2010 (3 ) SCC 480 {para-89, clauses VII to XI} [it is mentioned with other material detail in sub -paragraph 7.2 (Ibid) , that is why it is not detailed here).
(c) Devarakonda Surya Sesha Mani & Ors Vs Care Hospital, Institute of Medical Sciences & Ors. Civil Appeal no. 4596/2022 dod 26.08.2022,held (para 2) Unless the appellants are able to establish before this Court any specific course of conduct suggesting a lack of due medical attention and care, it would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment which was administered to the spouse of the first appellant. In the absence of any such material disclosing medical negligence, we find no justification to form a view at variance with the view which was taken by the NCDRC. Every death in an institutionalized environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care".
7.1 (Findings)- The contentions of both the sides are considered, keeping in view the material on record, which also comprises documentary record besides statutory provisions of law, case law presented and other precedent. Since the plea of complainant is of medical negligence, deficiency of services and of unfair trade practice against Hospital/OP1 and its treating doctors/OP2 & OP3 but case of OPs is the there is no such medical negligence, or of deficiency of services or unfair trade practice on their parts.
7.2. Thus, in order to determine whether or not there is medical negligence or else, it is appropriate at this stage to first refer a precedent on the point of medical negligence, test, guidelines and scale to be applied to determine it, ethics involved and so on. It is laid down in precedent 'Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8, 9 and 12; in which the previous precedent Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050 is also referred with its relevant paragraphs are Para 22 & 89] -
[Para 8] "22. Negligence. -Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such à person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient"
[para 9]. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam v. Friem Hospital Management Committee -1957 1WLR 582). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
A situation, thus, cannot be countenanced, which would be a dis-service to the community at large, by making doctors think more of their own safety than of the good of their patients.
[12]. In para 89 of the judgment in Kusum Sharma & Ors. the test had been laid down as under:
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one avail-able, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/ hospitals particularly private hospitals or clinics for extracting uncalled for compensation. The malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professional.
It is relevant to mention since certain tests, guidelines and rule have been laid down in precedents Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8 9 and 12] & Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050, therefore, from that point of view, certain duties are prescribed in the medical profession, they are (i) a duty of care "in deciding whether to undertake the case"; (ii) a duty of care in deciding "what treatment is to be given" and (iii) a duty of care "in administration of that treatment". On failure to observe them or any of them, it will be case of medical negligence.
8. Since the complainant has grievances of medical negligence, diagnosis, want of attention and treatment besides mismanagement on the part of OPs vis a vis there are guidelines or certain duties are prescribed for the medical profession, which are (i) a duty of care in deciding whether to undertake the case; (ii) a duty of care in deciding what treatment is to be given and (iii) a duty of care in administration of that treatment. Therefore, it would be appropriate to take the feature of this case one by one from that tests/points of view.
9. Firstly, issue of duty of care in deciding whether to undertake the case? The first issue is whether the OPs had taken proper care to undertake the case of complainant. The case of parties and their documentary record are self-explanatory.
Since, on 20.11.2019 the patient visited emergency of OP1 after her examination and advices (of 19.11.2019) by Dr. Dinesh Mittal, since she had pain in her leg. The OPs have proved the record that she came with complained of pain above left knee, swelling over left knee and inability to stand and walk, by recording k/c/o diabetes and hypertension. After examination she was found a suspected case of multiple myeloma, which find mentioned in the in-patient and physical examination record by the OPs. To say, on the inception of examination, the complainant was diagnosed a suspected case of myeloma. Simultaneously, there is case summary of 20.11.2019, wherein the patient was diagnosed of fracture left shaft femur besides multiple myeloma. Moreover, in the cause of death multiple myeloma was opined cause of death, which find mentioned in summary issued by AIMMS.
Thus, so far the task of OPs to undertake case of Smt. Madhu Uppal is concerned in Emergency-OPD and IPD, there is no negligence on their part as OPs are in the medical field and services, the OP2 is Orthopedic and OP3 being Haemato-Oncology. There is nothing on record by the complainant that hospital or its doctor were not having qualification or competence to undertake the case of Mrs. Madhu Uppal for treatment, diagnosis or disease diagnosed was not correct. There is no negligence in respect of 'duty of care in deciding to undertake the case'. This clearly proves that OPs had undertaken the duty to entertain the case of patient/wife of complainant properly. The first component stand determined accordingly.
10.1 The second point being taken is 'of duty of care in deciding what treatment is to be given to the patient/wife of complainant'?
According to complainant there was no immediate attention to the patient or she was shifted directly from emergency-OPD to the ward, instead of shifting to ICU. The patient had also suffered from fronting on the midnight after her admission as indoor patient, it was because of want of preliminary examination like, BP, sugar level and nutrition care. But on the other side, the patient was given all attention in continuation of her examinations in emergency OPD, then to the ward. However, she was not taken to ICU for want of any such requirement. She was rendered all medical and other needs promptly. The things developed subsequently and care was also taken thereof in the best interest of the patient. All the standard medical practice for treatment, care etc. were followed throughout.
10.2 This rival contentions of parties are considered on this issue, in the light of their respective pleadings and documentary record. The documentary record has been filed by the complainant, which includes investigation report, clinical reports, discharge summary issued by OP1, death summary issued by AIIMS, etc. vis-à-vis the OP had filed other documentary record of doctor notes, nurses note, consent form, patient family communication record etc.
The investigations/tests report are from very first day of 20.11.2019 onward and doctor progress report also begins from 20.11.2019. There are many tests carried and recorded besides nurses notes of compliances of prescriptions by the treating doctors, which also mentions about measurement of sugar level. This pattern has been followed for subsequent date also, inclusive of prescriptions and tests like digitial skiagram-chest, digital skiagram-left knee, digital skiagram-skull, she was diagnosed of fracture of left femur and multiple myeloma, MRI brain, CT brain. All these aspects have also been compiled in the form of discharge summary (LAMA). The patient was brought to AIIMS, New Delhi on 19.12.2019 itself after discharge from the hospital/OP1 and the death summary also mentions the course previously adopted by the OP1/hospital as well as the condition of patient when brought to AIIMS, New Delhi. The AIIMS, New Delhi also took all possible measures but the patient remained sick and she developed cardiac arrest on 04.01.2020 at 6 pm, CPR was started immediately and revived but patient remained critical following cardiac arrest on 05.01.2020 at 1:30 am; CPR was started immediately but despite all possible efforts, the patient could not be revived and she died at 2:05 am on 05.01.2020. This sequence of events reading with the doctor’s progress notes of OP1/hospital followed by the nursing staff to execute those prescriptions etc and then bringing the patient in that condition at AIIMS, New Delhi, she could not be revived. She died of various causes inclusive of multiple myeloma. Further, as appearing from the evidence, the patient had developed fronting and unconsciousness after her admission in the hospital/OP1, which is narrated in the medical record and further state of affair developed as mentioned in the death summary issued by AIIMS, New Delhi. The OP1 hospital took the appropriate decision to shift the patient from ward to MICU and then to HDU, which was consequent to appraisal of the condition of the patient developed while under treatment. There is no medical opinion or evidence on behalf of complainant that the patient brain was declared dead on 21.11.2019 by a Dr. Satinder nor there was any doctor by name Satinder nor there is any contrary evidence that the treatment met out by the OPs was not proper/correct treatment but else diagnosis or treatment was expected.
Therefore, by taking into account the detail given in discharge summary issued by Hospital/OP1 from the beginning till discharge about the diagnosis, treatment & conditions, test conducted and the progress followed vis-à-vis the death summary issued by AIIMS, there is nothing on record which may infer the decision of OPs in following standard procedure was wrong decision or it was not as per the norms or there was flaw therein to be construed/inferred as negligence in deciding and undertaking the treatment. The complainant and the circumstances could not establish about negligence of OPs in this regard.
11.1 The third component is of 'duty of care in administration of that treatment' to the patient.
There are reservations of the parties too on the point of administration of the treatment to the patient. According to the complainant, after admission as indoor patient, the patient remain in hospital/OP1, however, the patient was not attended completely and the OPs withheld actual information about the condition of the patient, even when the patient was in MICU, she remained throughout on ventilator support, which was observed during visiting hours. This was done by the OPs intentionally in order to exhaust the insurance amount and to fleecing the complainant. But on the other side, there is juxtaposition that the patient was attended promptly from time to time and all requisite steps were taken during the course of diagnosis, treatment and care of the patient that too in the interest of the patient. The family members were also apprised of day to day condition of the patient, which were endorsed by them on the forms.
11.2 To locate the answer of this issue, the documentary record is to be seen. In fact, the circumstances are to be read in continuation of record already discussed in paragraph 10.2 above. At the cost of repetition, not only there are nurses notes, doctor’s progress reports but also other reports of clinical and pathological examinations. On one side, there were prescriptions by the doctor and on the other side there were compliances by the nurses and other supporting staff, it is manifesting from the documentary record so mentioned. To say, by reading the event taken place in chronology, the patient was being attended by the doctors and compliances were done by the nurses and other supporting staff. It is never the case of complainant that the documentary record proved by the complainant as well as by the OPs is not result of those prescriptions, after examining the patient and administering the treatment. The family communication record is reflecting day to day information of condition of patient to them.
Thus, there is nothing emerging against OPs in the record that in the pre-discharge there was negligence or want of duty of care in administration of that treatment nor the complainant could establish that there was wrong diagnosis or consequent wrong medicine was administered, which caused effect nor any such observation in the discharge summary issued by OP1 or death summary issued by AIIMS, New Delhi. There is also no proof by complainant either by expert medical evidence/opinion or otherwise, that had there been some other diagnosis or treatment or course of administering of medicine, it would have other results possible to the patient. The OP1 hospital through its doctors/OP2 & OP3 of concerned specialized filed had diagnosed and then given treatment to cure the wife of the complainant.
Since, there was no recovery despite proper diagnose and treatment, it would not mean that the OPs failed to discharge their duty or indulged in medical negligence. The effect of treatment and medicine is in fact reaction of body to the medicine, which may vary person to person or may affect an individual or another may not be affected, because of individual medical and pathological conditions. But it cannot be inferred as medical negligence. These proved circumstances on record do not establish the third ingredient against the OPs to infer medical negligence.
12.1 There is no allegations that medicine purchased outside were not served to the patient nor it is case of complainant, that medicine charges were taken but medicines were not provided to the patient.
12.2 There is also no evidence by the complainant that he was fleecing by the OPs.
12.3 There is no evidence of unfair trade practice against the OPs or of deficiency of services.
13. So, the complainant could not prove medical negligence or circumstances of medical negligence against OPs. It also stand established that OPs were not negligent in performing its duty of care in undertaking the case of patient, or deciding what treatment is to be given and duty of care in administration of that treatment'. What appearing is that the patient had developed those medical issues/complications after her admission but the complainant could not establish that those medical issues were directly or consequent to treatment given by OPs for the diagnosed disease.
14. In view of the above conclusions, it is held that for want of establishing the case of medical negligence against OPs, or of deficiency of services or of unfair trade practice; this complaint fails. It is dismissed. No order as to cost.
15. Announced on this 9th day of February 2024 [माघ 20, साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[ijs-24]
