Delhi

StateCommission

CC/09/298

MRS. REKHA PANDEY AND ORS. - Complainant(s)

Versus

CITY HOSPITAL AND ORS. - Opp.Party(s)

05 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                                                         Date of Decision : 05.04.2016

                        Date of arguments heard : 30.03.2016

Complaint Case No.298/2009

Mrs. Rekha Pandey

W/o Late naresh Chand Pandey

R/o Quarter No. 4, Pakka Talab Colony,

Itawa, U.P.

……Complainant No.1

Manish Pandey Pandey

S/o Late naresh Chand Pandey

R/o Quarter No. 4, Pakka Talab Colony,

Itawa, U.P.

……Complainant No.2

Rahul Pandey

S/o Late naresh Chand Pandey

R/o Quarter No. 4, Pakka Talab Colony,

Itawa, U.P.

……Complainant No.3

Rajat  Pandey (Minor)

S/o Late naresh Chand Pandey

R/o Quarter No. 4, Pakka Talab Colony,

Itawa, U.P.

Through

Complainant No. 1 (Mother)

……Complainant No.4

Vs.

 

City Hospital

B-1/1. N.E.A, Pusa Road

New Delhi.

Through the Chairman of

Its Management Committee

 

…Respondent No. 1

Dr. D.S. Rana

Chairman Management Committee

City Hospital

 

…Respondent No. 2

Dr. Dinesh KhullarCity Hospital

B-1/1. N.E.A, Pusa Road

New Delhi.

 

…Respondent No. 3

Dr. Jyoti

B-1/1. N.E.A, Pusa Road

New Delhi.

 

…Respondent No. 4

 

CORAM

 

O.P. Gupta,Member(Judicial)

 

S.C. Jain (Member)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.       To be referred to the reporter or not?

 

 

O.P. Gupta, Member (Judicial)

 

1. The case set up by the complainant is that complainants are widow and three sons of deceased Sh. Naresh Chand Pandey. One of the son is minor who has filed the complaint through his mother/natural guardian. The deceased visited City Hospital for problem of urine infection and consulted OP No.3. OP No.3 alongwith other OPs forced him and Complainant No. 1 to undergo kidney biopsy. Both the kidneys of the deceased were normal as per report dated 13.7.08 of Agra Ultrasound Centre, Agra. The deceased and Complainant No.1 said that kidneys were normal and kidney biopsy was not required. On this OP No. 4 & 3 told the Complainant No. 1 that if deceased wanted to live, he had to immediately undergo kidney biopsy otherwise there was imminent danger to his life. Complainant No.1 told OPs that she was having only Rs.5,000/- and could not make the payment and would come alongwith the payment and would get the deceased admitted. OP No. 3 & 4 forcefully said that they could get deceased self admitted first and then could arrange funds stating that there is imminent danger to life of the deceased. Under the tremendous pressure asserted by OP No. 3 & 4, Complainant No. 1 was compelled and forced to get her husband admitted in the hospital on 18.3.09 at 2.00 pm. And they deposited Rs.5,000/-. OP No. 3 & 4 carried out kidney biopsy of husband of Complainant No. 1 on 19.3.09 at City Hospital. Biopsy was not done by the kit supplied by the deceased but by the test kit supplied by the City Hospital which was later on told by OPs to Complainant No. 1. On objection by Complainant No. 1 and deceased unreasonable excuse was given that it was done so to save cost of kit. Husband of the Complainant No. 1 was discharged from the hospital on 21.03.09 after kidney biopsy. On 22.3.09 condition of the husband of the Complainant No.1 started deteriorating day by day and he was having severe pain in lower abdomen area. Complainant No. 1 alongwith her husband approached to the hospital doctors. OP No. 3 & 4 ensures that it happens in some cases and the patients should continue with the prescription and condition will improve in few days. Complainant No. 1 and her husband believed the assurance and continued the treatment as they had no other option. There was no improvement in the condition of the husband of the Complainant No.1. When Complainant No. 1 approached City Hospital to admit her husband, doctors refused to admit him and asked her to take the patient to some other hospital. Hence the patient was taken to nearby Sir Ganga Ram Hospital where he was admitted on 28.3.09. As per test conducted by New Delhi Scan Research Institue on 30.3.09 it was found that the left kidney was replaced by a large heterogeneous hyper-dense area of blood collection admixed with swollen renal parenchyma. The patient was treated there for some time and finally he died on 11.4.09 due to sudden Cardiac arrest. Cause of death as per report was SLE – Lupus Nephritis Class IV, Septicemia, shock, Acute on CDK. The patient died due to gross negligence of doctors of City Hospital, the kidney biopsy without any need and that too from a test kit. The patient developed the perinephric haematoma due to kidney biopsy done by the OPs by conducting gross negligence in following due medical procedure.
2.         OPs did not use sterilized kit provided by Complainant No.1 but used some other unsterilized kit for performing kidney biopsy due to which deceased developed septic. He would not have died untimely death, had biopsy not being done. Biopsy was done for monitory gain, in gross negligent manner and finally the OPs were unresponsive to the complaint made by the deceased regarding pain in infected area. The deceased would have earned Rs.15,00,000/- as salary @ Rs.25,000/- per month, the complainants spent about Rs.2,00,000/- on the medical treatment of deceased with the OPs. The complainant have suffered loss of injury which can not compensated in terms of money but for the time being the same was being valued as Rs.2,00,000/- per complainant. The complainants spent about Rs.25,000/- on transportation of dead body and funeral expenses. Hence the complainant has claimed awaited damages to the tune of Rs.15,00,000/- as loss of income, Rs.2,00,000/- on medical expances per complainant for loss of love, mental trauma and pain. They have also prayed for interest @18% p.a. from the date of complaint till realization and litigation costs. Exemplary and punitive cost have also been prayed.
3.         OPs filed written statement raising preliminary objection that patient had a history of polyathritis involving large joints of the body. He was investigated elsewhere including All India Institute of Medical Sciences (AIIMS)and Antinuclear antibody (ANA) and Rheumatoid factor (RF) were found to be positive three years back suggesting the possibility of a collagen vascular disease – a chronic disease associated with considerable morbidity and mortality. At the same time he was diagnosed to have ILD (Interstitial lung disease) – another debilitating disease with very poor outcomes which is evident from the Annexure-A. On 17.3.09 when he was seen by OP-3 at OPD of Ganga Ram Hospital, he was advised investigations including tests of rheumatoid arthiritis in view of debilitating joint pains. Rheumatoid is also an arthiritis like systemic Lupus Erythematosus (SLE). He was also detected to have proteinuria (protein excretion in the urine). His S. Creatinine which reflects kidney function was 1.5 mg/dl whereas the normal value ranges between 0.6 to 1.3 mg/dl as is evident from the perusal of Annexure B. For that the patient took Ayurvedic treatment from 2-3 months. The patient complained of multiple joint pains, shortness of breath, general weakness & low grade fever. One month prior to admission, he developed generalized erythematous rash and treated for drug rash elsewhere.  Two weeks prior he also complained of Worsening of breathlessness, fever of low grade, cough with expectoration & swelling over feet. He also had difficulty in speaking and hoarseness of voice and was detected to have laryngeal edema (swelling of vocal cords as the cause of the above) on 18.3.09. during his first visit to OPD on 17.3.09 at Sir Ganga Ram Hospital, he was found to be in a sick condition and debilitated mainly due to the joint involvement. He was wheel chair bound. He was advised to undergo few investigations to help in evaluation of his condition. The details of investigations report are mentioned in preliminary report No.1 in his statement which contains thereby verifications under each category. In view of the strong possibility of collagen vascular disease especially SLE & rheumatoid arthritis, he was seen by Dr. Lalit Duggal, Sr. Consultant in Rheumatology (SGRH) who also agreed with possibility of male SLE and suggested Kidney Biopsy as is evident from Annexure-D. For his chest condition, he was seen by Dr. Arup Basu, Senior Consultant, Chest Medicine (SGRH) who advised HRCT scan of chest which showed features of idiopathic pulmonary fibrosis as is evident from Annexure-E. The patient improved considerably with the treatment. His S. creatinine declined to 2.5 mg/dl. It was very important to make an early renal diagnosis as well as to stage and classify the type of kidney involvement due to SLE with the help of Kidney Biopsy show that appropriate treatment could be instituted. As per the WHO classification of Lupos Nephritis there are 6 classes with different line of management and outcomes as is evident from Annexure-F. Since patient had history of taking Ayurvedic medicines which he had taken.
4.         The patient was discharged in stable condition on 21.3.09 as is evident from discharge summary Annexure-G. It was clearly mentioned in the discharge summary that next appointment was review with Dr. D. Khullar in Room No. 246, SGRH on Tuesday with reports. But the patient failed to report for review. Instead his wife came and showed the Biopsy report dated 24.3.09 which is Annexure-H which showed poor prognosis (Class IV Lupus Nephritis). The patient again visited Ganga Ram Hospital on 27.3.09 and underwent certain tests like blood tests and Renal Biochemical profile which are Annexure-I. He was advised admission at Ganga Ram Hospital. He visited OP-3 on 28.3.09 and was found to be pale and was asked to immediately report at emergency of Sir Ganga Ram Hospital. Immediately fluid resuscitation was stated and he was transfused blood and started on broad spectrum antibiotics. Intrarenal bleeding and perinephric haematomas (i.e. bleeding inside or outside the kidney) are well known complications of Kidney Biopsy. However the vital information and clues towards the final diagnosis obtained by kidney biopsy far outweigh the potential risks & complications associated with the procedure. All precautions like control of blood pressure (BP), ensuring adequate platelet count & prothrombin time & bed rest was strictly followed.  Biopsy was performed after written consent signed by his son. Total  4 units blood transfusion were given and his condition stabilized. His haemoglobin gradually improved to 11.5 and TLC declined to normal 8200/cumm. His serum creatinine came back to normal value of 1.04 mg/dl Annexure-L thereby reflecting that overall kidney function was normal. The patient remained absolutely right between 2.4.09 to 8.4.09. He was, therefore, planned for discharge on 10.4.09. However, on 9.4.09 he developed fever. Fresh blood cultures and urine cultures were sent. His repeat HGB was 11.5 thereby rulling out any evidence of fresh bleeding. Repeat imaging (CT scan) was done which did not show any change in the size of hematoma to imply that there was active bleeding. His WBC count was found to be elevated. Urology consultation was taken from Dr. S. Chadha, who opined that no active management for hematoma was required as is evident from perusal of Annexure-O. Biopsy report was available on 24.3.09 which confirmed a diagnosis of Lupus Nephritis (SLE involving the kidney), WHO class IV. SLD is predominantly a disease of female and is rare in males. Once it occurs in males, it generally carries worse prognosis and disease is very aggressive in nature. Various causes of septicemia which resulted in his death were complications of SLE and ILD. Biopsy was conducted using a new and fresh biopsy needle. Keeping in mind the financial hardship and difficulty being faced by the complainant and as a humanitarian and ethical approach, biopsy needle was returned to the Pharmacy and money was refunded to the patient. Biopsy was conducted free of costs. On merits, the OPs took the same plea.
5.         Complainant files rejoinder and affidavit of Complainant No. 1 in evidence. The affidavit is reproduction of contents of the complaint.
6.         On the other hand the OPs filed evidence by way of affidavit of OP-3 who reiterated the defence taken in the written statement.
7.         Both the parties have filed their written arguments.
8.         We have gone through the material on records and heard arguments advanced by the Counsel for the parties.
9.         It is interested to note that the case of the complainant is not that OP-3 was not a qualified doctor. It is not their case that he ought to have used some extra cautions which he did not do. Biopsy was done after consent signed by Mohit son of the patient. The consent form is available at page 108.
10. The Counsel for the complainant argued that Mohit who gave consent was minor son of the patient. According to him there is no reason why the consent of wife of the patient who is Complainant No. 1 was not taken.
11. We are unable to appreciate the arguments. The complainants never set up a case of no consent or incomplete consent, in the complaint. They never pleaded that Mohit was minor. They did not disclose the age of Mohit. The plea now sought to be raised is after thought.
12. As regards non taking of consent from wife of the patient it may be observed that as per general practice consent is taken from the relatives whosoever is immediately available. Doctor can not wait for consent of a particular person and thereby allow the condition of patient to deteriorate.
13. The Counsel for the complainant also submitted that signatures of the doctors at the bottom of the consent form are not there. We fail to understand as to how said omission is material. Consent must contain signatures of relative of the patient and not of the doctors. Signatures of doctors are taken only as abundant precautions to prove the consent, if consent is disputed. In the instant case there is no dispute about the consent.
14. The grievance of the complainants is that biopsy was done with sample kit which could be infected. According to them, the biopsy should have been done by the kit provided by the complainant.
15. The Counsel for OP suitably replied that sample kit does not mean that it is not of proper quality or standard. Rather sample kit is one which is provided by sales representatives to doctors for convincing the quality and effectiveness of the kit. It is generally seen that sample kit is better in quality and more effective. He drew our attention to para 12 of the written statement where OPs have mentioned from the beginning that Kit provided by the complainant was returned to help the complainant in saving the expenses. This was done so on humanitarian grounds and keeping in view the background given by the complainant that they did not have enough money for biopsy. If having a sympathetic attitude towards financially weak person is a sin, it is not clear as to how the medical profession would survive.
16. The Counsel for the OPs highlighted that not only in the background given by the patient and complainants before the OP, even in the case set up in the complaint before this Commission, the complainant have mentioned that Complainant No. 1 was having only Rs.5,000/- which was insufficient for admitting the patient. Still the doctor did not defer admission of the patient. Rather he preferred to admit the patient in the first instance and then giving a chance to the complainants to arrange money later on.
17. The counsel for the OP did not miss to argue that patient was not charged for biopsy as is clear from page 112 of the bunch of documents filed by OPs. The amount of kit purchased by the complainant was returned to her on the date of biopsy itself i.e. much much before untoward instance of death of the patient. This shows that doctors did not have any monetary interest in doing the biopsy. Had the biopsy not been required, OP-3 would not have done the same. He also pointed out the patient was shifted from ICU to Room No. 111 due to financial conditions of the patient.
18. Counsel for the OP drew our attention to the papers of admission of the patient in hospital which shows that patient was not well for three years, he was treated in premier institute like AIIMS, his kidney stopped working.
19. The Counsel for the complainant submitted that previous report of ultra sound done in Agra in July, 2008 did not suggest biopsy. The same has not left any impression on our mind. The said report was more than eight months before the incident in question. Conditions of the kidney can change during the intervening period of eight months. If condition is to remain same, then repeated tests are not at all required but the same is against medical norms.  Doctors go on getting the latest reports so as to find out the changes, if any.
20. Counsel for the OPs submitted that OPs have filed copies of medical literature titled as ‘BRENNER & RECTOR’S The Kidney Vol.I, Seventh Edition – 2004’ which is Annexure-J and is at page 44-51 of the bunch of documents filed alongwith the affidavit of OP No. 3. At page 47 under the heading ‘Clinical Utility’ it is mentioned that a kidney biopsy may be obtained to help establish the diagnosis, suggest prognosis, or direct therapy. The information obtained from the biopsy is still largely qualitative. He submitted that in the right column bottom of page 47 it is mentioned that question about roll of kidney biopsy in patient with idiopathic nephritic syndrome have also emerged. But in this case there was no history of idiopathic. Thus the OP took a rationale decision.
21. The Counsel for the OP submitted that plea of refusing admission to the patient when he visited OP No.3 after discharge is hollow. The patient was readmitted in Sir Ganga Ram Hospital. According to him City Hospital and Sir Ganga Ram Hospital are one and the same thing. The former is extension of Sir Ganga Ram Hospital and the team of doctors in both the hospitals are same. Thus complainant have tried to kick dust in the air by leveling the allegations that patient was refused the admission in City Hospital.
22. Lastly, the Counsel for the OP submitted that both the parties may be interested in putting forward their respective case but Medical Board and that too comprising of three independent doctors from a government hospital is more reliable. The present case was referred to Moulana Azad Medical College which is not only hospital but college also. Report dated 1.4.13 has been received from there which is signed by Dr. Richa Dewan, HOD (Medicines), Dr. R.C. M. Kaja, Director Professor (Surgery), MAMC and Dr. R.S. Ehlawat, Professor (Medicines), MAMC. The report recites that committee has gone though the records of the patient during his stay and time of death in the City Hospital. He was reported to be a case of SLE with type 4 lupus nephritis on long term therapy. He was admitted twice in City Hospital, first on 18/3/09 to 21.3.09 when he was investigated for proteinuria and deranged renal functions and left kidney biopsy  was done to assess involvement of kidney. A written informed consent was taken from his son. There was no immediate complication following left kidney biopsy and the patient was discharged on 21.3.09 in a stable condition as per records of the hospital. He was readmitted on 28.3.09 and diagnosed to have a large haematoma in association with the left kidney. He was also found to have fever and leucocytosis. Patient was put on conservative management and a urological consultation was taken to consider the possibility of nephrectomy/drainage of haematoma/embolization. A consenus decision was arrived at by the team of continued conservative management in view of the stable condition of the patient. However, the patient developed septicaemic shock and expired on 11.4.09. Detailed review of the case record and the events that lead to the death of the patient do not indicate any negligence on the part of the medical team. The patient was biopsied after due process of consent and followed up thereafter until his death.
23. The concluding part of expert opinion showed that death of patient do not indicate any negligence on the part of medical team. The team done biopsy after due process and consent and followed up thereafter until his death. To our mind, this leaves no scope for contending that OPs were negligent.
24. Last but not the least is the legal position regarding medical negligence. In Indian Medical Sciences Vs. V.P. Santha (1995) CPJ-1, Hon’ble Supreme Court held that negligence is absence of reasonable care which reasonable person is expected to observe in given set up of circumstances. But negligence for which the consumer can claim under Consumer protection Act must cause some loss or injury. Mere loss or injury without negligence is not contemplated by Consumer Protection Act.
25. In N.S. Sahota Vs. new Ruby Hospital & Ors. Vol.II (2000) CPJ 345 Punjab State Consumer Disputes Redressal Commission held that burden of negligence is upon complainant. When no expert opinion is produced by the complainant, the complaint was dismissed. Similarly, in Abdulla Modiwala & Ors. Vs. G.D. Birla Memorial Health Centre & Ors. Vol.II (2000) CPJ 502, Madhya Pradesh State Consumer Disputes Redressal Commission held that unless expert evidence indicating negligence is produced, OP cannot be held negligent. Similar view was taken by National Commission in Kamalakar Dhyaneshwar Mate Vs. Ranade Hospital Organisation & Ors. IV (2000) CPJ 238. In the case in hand, the complainant had not produced any expert opinion. They do not have filed any paper filing the affidavit of complainant No. 1 who is a lay man so far as medical expertise is concerned.
26. In case of Martin F Desouza Vs. Mohd. Ishfaq 1(2009) CPJ 32, Hon’ble Supreme Court held as follows:-

“47.            Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be stake. A singe failure may cost him dear in his lapse.

49.    When a patient dies or suffers some mishap, there is tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.”

27. To sum up we find that complainants has failed to prove negligence on the part of OP. The complaint is dismissed.
28. A copy of this order as per the statutory requirements be forwarded to the parties free of charge.
29. File be consigned to record room.

 

(O.P. Gupta)
Member (Judicial)

 

 

(S.C. Jain)

Member