Sri Kamal De, President
FINAL ORDER
This is a case in respect of alleged medical negligence on the part of the OPs.
Briefly, case of the Complainant, is that his wife, namely, Dipti Nanda, felt headache and chest pain with fever 101oF on 11-08-2012. So, she visited the chamber of OP No. 1 on 13-08-2012, who prescribed some medicines, including Dolomide tablet, without advising any investigation or checking the BP of the patient. It is alleged by the Complainant that the OP No. 1 did not prescribe any antacid. Since there was no improvement, rather chest pain of the patient aggravated, she was rushed to Contai SD Hospital, but they referred the patient to a Teaching Institute. So, they took the patient to the OP No. 3 Hospital, CMRI. The patient was admitted overthere at 00.12 a.m. on 20-08-2012 and after examination; the patient was put on ventilation under OP No. 2. It is alleged by the Complainant that while pushing a tube into the chest of the patient, due to negligence of OP No. 2, there was internal bleeding in her chest which caused infection and because of gross negligence of the OPs, the patient died on 27-08-2012 at 11.45 p.m. It is stated by the Complainant that the patient died at the age of 38 years due to negligence of OPs. It is also stated by the Complainant that the OP Nos. 2&3 charged him approx. Rs. 4,50,000/- as treatment cost of his wife. Complainant has claimed a sum of Rs. 19,90,000/- and Rs. 10,000/- being compensation and litigation cost from the OPs.
The case of the Complainant has been defended by each OP separately.
Case of the OP No. 1, in short, is that the patient visited him only once on 13-08-2013, when she complained of fever and was running a temperature of 100oF. After duly examining the patient, he prescribed a high antibiotics analgesic and vitamin capsule. Although he prescribed medicines for 3 days, neither afterwards nor during the said period, the patient party made any contact with him. This OP denied that he did not prescribe antacid and claimed that he prescribed tablet Digene. It is asserted by this OP that when a patient visits a doctor’s chamber with 100oF fever and headache, physicians tend to wait for 3/4 days before advising pathological tests. According to this OP, unnecessary advice for pathological tests runs counter to the ethics of a medical practitioner. This OP prayed for dismissal of the case against him with punitive costs.
OP No. 2 also contested the case by filing W.V. wherein it is contended inter alia that as the condition of the patient was very serious, although it was past midnight, she was immediately attended to by him. He also strongly disputed the assertion of Complainant that while pushing the tube into the chest of the patient, due to his negligence, there was internal bleeding into her chest and as a result, infection developed. It is stated by the OP that no tube was ever inserted or pushed into the chest of the patient by him or by any doctor and such fact can be clearly ascertained from the bed head tickets of the hospital. During the stay of the patient at the OP No. 3 hospital, this OP visited the patient at least 13 times and has provided quality service banking upon his long experience, expertise, and knowledge, along with the ITU In-Charge, Dr. Saswati Sinha and her whole team supported by other staff. Accordingly, he prayed for dismissal of this case against him.
W.V. has been filed on behalf of OP No. 3 as well who has stated that the patient was admitted at the hospital in a grave and serious condition on 20-08-2012. The patient was admitted under the OP No. 2 and on her admission, a case history note and Doctor treatment orders/bed head ticket was instantly made by the OP No. 2, wherefrom it could be noted that she had a Type I Respiratory failure with severe metabolic acidosis, multiorgan dysfunction secondary to severe sepsis caused by pneumonia. Thereafter, the OP No. 3 provided all such medical assistance, including ventilation (with written consent of the Complainant), I.T.U., under observation of the ITU medical team, guided by ITU Incharge, Dr. Saswati Sinha and also provided all sorts of medicines, lifesaving drugs, injections, pathological instruments etc. and in this way, took utmost care and provided the best possible medical service approved by international medical protocols to the patient form 20-08-2012 to 27-08-2012. It is further stated by this OP that notwithstanding it is claimed by the Complainant that he had incurred an expenditure of Rs. 4,50,000/- as treatment cost of his wife, as per record, the actual bill amount is Rs. 2,15,453/-, out of which Rs. 2,00,000/- has been paid and balance amount has been treated as discount.
Points for consideration
- Whether there is any deficiency in service on the part of the OPs in imparting due medical assistance to the patient, i.e., wife of the Complainant?
- Whether the Complainant is entitled to any relief, or not?
Decision with reasons
Point Nos. 1 & 2:
Both these points are taken up together for the purpose of convenience of discussion.
We have carefully gone through all the materials on record that include, report of the expert committee headed by (Prof.) Dr. Asutosh Ghosh, Department of Medicine, IPGMER-SSKM Hospital, Kolkata, deposition of parties, medical papers pertaining to the treatment of the patient.
It appears, the patient was initially treated by OP No. 1. Ongoing through the concerned prescription, it appears that suspecting Enteric fever, the OP No. 1 prescribed some medicines. It is claimed by the OP No. 1 that the patient visited him with complain of fever of 100oF and headache on 13-08-2013 and after duly examining the patient, he prescribed a high antibiotics analgesic and vitamin capsule. In his deposition before us, the OP No., 1 strongly denied that he did not prescribe any antacid to the patient and claimed that he prescribed Digene along with Dolomide for 3 days.
On scrutiny of the photocopy of prescription issued by the OP No. 1, we find that it does not contain any details of vital parameter of the patient, e.g., BP, body temperature. It is quite unheard of a medical practitioner not mentioning the body temperature of a patient in a case of fever. During cross, this OP stated that although the condition of the patient was not so grave, she was reasonably ill. We wonder, how justified he was prescribing high antibiotics analgesic when in his own admission, the condition of the patient was not grave and more importantly, when he himself was not at all confident about his own prognosis in respect of the patient. Prescribing Dolomide tablet without measuring temperature of the patient appears to be erratic; more so, when it is meant for restrictive use given the enormity of side effects of this medicine. Also, contrary to his claim, we do not find any mention of Digene in the prescription; even (Prof.) Dr. Asutosh Ghorh, Chairman of the Medical Board constituted by Medical Superintendent-cum-Vice Principal, SSKM Hospital, in his cross informed this Forum that he was not sure if Digene had been prescribed by the OP No. 1.
It is claimed by the OP No. 1 that he made a provisional diagnose of enteric fever or typhoid fever in respect of the patient over symptom of body temperature 100oF and headache. As we know, common symptom of typhoid fever include: a high temperature (103oF-104oF), headache, muscle aches, stomach pain, feeling sick, loss of appetite, constipation or diarrhea, a rash made up of small pink spots on the trunk of the body, exhaustion etc. We find that, apart from headache, none of the afore-mentioned symptoms was present in the patient. Therefore, on what basis, he suspected it as a case of enteric fever or typhoid fever, remains doubtful. That apart, in our considered opinion, if a doctor has reasonable doubt about his own diagnosis, he would better prescribe necessary tests to ascertain the real cause of illness than shooting in the dark. Human life is precious, a physician, or for that matter, none can fiddle with it.
Although it is claimed by the OP No. 1 that he had carefully examined the patient, a glance through the prescription does not inspire any confidence in our mind about his sincerity of purpose. No wonder, therefore, the medical board entrusted with the job of examining the possible medical negligence on the part of the OPs, opined in its report dated 19-12-2014 that, “On 13th August, 2012, when the patient was attended by OP No. 1 – certain routine tests could have been done – at least peripheral blood smear for Malaria Parasite, Malatial antigens, chest x-ray, TC, DC, ESR, Hb, platelet ct.” Further, the said Medical Board opined that, “Instead of combination of Tab. Paracetamol+Nimesulide (Dolomide), only paracetamol would have been a better choice”.
In case of fever, without knowing the cause of fever, tablets meant for malaria, typhoid etc, are freely used on trial and experimental basis. OP No. 1 cannot absolve himself of such medical negligence. The prescription also appears to be highly questionable. It is claimed by the Complainant that he visited the OP No. 1 on 16-08-2012 after his initial visit on 13-08-2012, which is, however, denied by the OP No. 1. On going through the prescription in question, it appears that the same is written in two parts. In respect of the first part although the OP No. 1 has put the date beneath his signature, it is not the case with the second part of his prescription – neither it bears his signature nor any date is mentioned below the second part of his prescription. Be that as it may, the prescription appears to be a dubious one. Gross medical mistake will always result in a finding of negligence. Use of wrong drug frequently leads to imposition of liability and in some circumstances; even the principle of res ipsa loquitur can be applied.
The Medical Board of SSKM Hospital also put under scanner the line of treatment followed by the OP No. 2 in respect of the patient, Dipti Nanda, since deceased and reported in its wisdom that when the patient was admitted in CMRI on 20-08-2012, certain tests, viz., MP, Malarial antigens, Dengue Serology, HIV serology, in addition could have been done. It appears, the OP Nos. 2&3 have not challenged such view of the Medical Board.
The said Medical Board further opined that on 21-08-2012, when non albicans candida was detected in E.T. c/s and the patient was not responding to antibacterial on ventilator, perhaps antifungal could be introduced at that point.
In this regard, it is articulated by the OP No. 2 during cross that he did not prescribe anti-fungal medicines for many reasons, contending further that it was not infection, but simply colonizer. He claimed that he prescribed medicines following all the international guidelines, including that of IDSA.
It is contended by the Ld. Lawyer of OP Nos. 2&3 that if non albicans candida is detected in Eadotracheal Tube culture, it is considered as “colonization” which is very common in cases of patients who are undergoing prolonged steroid treatment or abdominal surgery or through parental nutrition. According to the Ld. Lawyer, it was not a sign of fungal infection, and thus, it did not require treatment through antifungal medicines. He further stated that if non albicans candida is detected in blood or urine culture after 3 - 4 days of hospitalization, it is considered as infection and in that case, only medicinal treatment is required. So, OP No. 2 prescribed Fluconazole in specific dose after the patient developed a second sepsis after 7 days of hospitalization.
In a bid to gain first-hand knowledge in this regard, we have perused some medical journals/books which have dealt with this subject and our findings are appended below:
While reviewing treatment of candidemia in adults in a journal titled “Treatment of candidemia and invasive candidiasis in adults”, Carol A Kauffman, MD, Professor of Internal Medicine, University of Michigan Medical School, Veterans Affairs observed as under:
‘In all cases, candidemia requires treatment with an antifungal agent……Several studies have noted the high mortality rates associated with candidemia and have shown that mortality is highest in those patients who were not treated with an antifungal drug. Furthermore, prompt initiation of therapy is crucial’.
Dr. Burke A. Cunha, MD, Specialist in Infectious Disease Medicine, in a book, namely, “Infectious Diseases in Critical Care Medicine”, opined as under:
“It should be stressed that removing as many risk factors as possible is as important as antifungal therapy……. The time to initiate antifungal therapy, like fluconazole, depends to a great extent on the patient’s immunocompetence and clinical condition. In febrile immunocompetent patients in whom attempts have been made to exclude other sources of fever, it makes clinical sense to initiate empirical anti-fungal therapy only if Candida is isolated from two or more sites (e.g. oropharynx, sputum, stool, urine, drain sites) or there is evidence of hematogenous candidiasis (e.g. blood cultures positive for Candida; endophthalmitis). On the other hand, in febrile immunocompromised patients, particularly those with a worsening clinical condition after 5 days of antibiotic therapy, empirical antifungal therapy may be justified even without cultural evidence of Candida at any body site”.
According to the author – ‘the term candidemia describes the presence of Candida species in the blood. Candidemia is the most common manifestations of invasive candidiasis. Candida in a blood culture should never be viewed as a contaminant and should always prompt a search for the source of the bloodstream infection. For many patients, candidemia is a manifestation of invasive candidiasis that could have originated in a variety of organs, whereas for others, candidemia originated from an infected indwelling intravenous catheter’.
Dr Marco Tubaro, Dr Pascal Vranckx, while discussing the issue in a book titled, ‘The ESC Textbook of Intensive and Acute Cardiovascular Care’, observed that,
“Depending on the context, the initial antibiotic therapy must be early (within the first 4 hours) and include broad-spectrum antibiotics covering Gram-negative bacilli. IDSA guidelines define high-risk patients to be those with anticipated prolonged (>7 days’ duration) and profound neutropenia (absolute neutrophil count (ANC) <100 cells/mm following cytotoxic chemotherapy), and/or significant medical comorbid conditions, including hypertension, pneumonia, new-onset abdominal pain, or neurological changes. Low-risk patients have an anticipated brief (<7 days’ duration) neutropenic periods, or no or few comorbidities, and can receive oral antibiotic therapy. High-risk patients require hospitalization for IV empirical antibiotic therapy with an anti-pseudomonal β-lactam agent. The addition of an aminoglycoside has to be considered in patients with severe sepsis and septic-shock and if antimicrobial resistance is suspected or proven (e.g. previously known carriage of extended spectrum β-lactamase-producing enterobacteria). In this case, a daily dose of aminoglycoside is used, with the same usual dose. Methicillin-resistant Staphylococcus aureus (MRSA) should be covered in some situations, including the presence of a central line catheter, cutaneous lesions, and nasal MRSA colonization. Antifungal therapy depends on the context. Whatever is chosen, a de-escalation strategy must be the rule.
In all cases, the efficacy of antibiotics must be checked at 48-72 hours. If the patient is persistently febrile and remains in a haemodynamically unstable state, the change of antibiotic +/- the addition of an agent active against Gram-positive cocci (staphylococci, enterococci, and streptococci) +/- an antifungal (particularly if neutropenia is >10 days) is recommended”.
It appears from the documents on record that non-albicans candida was detected in E.T. c/s on 21-08-2012 and the patient was not responding to antibacterial on ventilator and the OP No. 2 prescribed Fluconazole on 27-08-2012.
Although the OP No. 2 sought to paint detection of non-albican candida in the E.T. c/s of the patient as a case of colonization, fact remains that we do not come across any cogent documentary proof as of prolonged use of steroid by the patient and there is also no such document to show that the patient ever underwent abdominal surgery or that it was developed through parental nutrition. Also, no authenticated medical journal is put forth from the side of OP No. 2 to support his contention that if non albicans candida is detected in blood or urine culture after 3 to 4 days of hospitalization, then it is considered as infection and in that case only medicinal treatment is required.
Be that as it may, keeping in mind the opinion of Medical Board of SSKM Hospital, as articulated vide its report dated 19-12-2014 as also the opinion of afore mentioned eminent authors on one hand and the contention of Ld. Lawyer of the OP on the other, it appears to be a clear case of deviation of standard procedure by the OP No. 2.
The OP No. 2 has filed photocopy of IDSA guideline which states that when Candida is isolated from respiratory secretions, this therapy is not recommended. It is further observed there that Candida lower respiratory tract infection is rare and requires histopathologic evidence to confirm a diagnosis. However, its relevance in the present context is not understood.
The relationship between a doctor and a patient is a matter of contract between the two. In paid services, a doctor promises to treat, serve and try to cure a patient of his illness and patient promises to pay the doctor for his service, expressly or impliedly agreed upon between them. The doctor is bound to fulfill his promises of service. It is the duty of the doctor to keep himself abreast of progress in the profession and utilize accepted and recognized methods to diagnose an illness and chalk out suitable treatment plan accordingly. We are afraid, both the OP Nos. 1 & 2 committed negligence in the matter of rendering proper treatment to the patient.
Now let us consider the conduct of OP No. 3 hospital. Hospital administration involves maintenance of clean and hygienic condition in the hospital. A study conducted by the Centre of Disease Control Atlanta reveals that every year over 2 millions Americans develop infection during hospital stay and 90% of them die due to it. Going by it, one can easily gauge the gravity of situation in developing countries like us. According to WHO, every fourth person admitted in hospital in India is likely to develop hospital acquired infection.
We find that the patient was admitted in CMRI on 20-08-2012 and the infection, as we find, manifested within 48 hours of her admission to the hospital. Firstly, the OP No. 2 prescribed anti-fungal medicine after 7 days of admission on 27-08-2012, a few hours before the death of the patient. The patient, as we find, developed sepsis during her stay at the hospital for such gross negligence on the part of the OP No. 2&3, who failed to read the situation correctly. Sepsis, as we know, is the presence of harmful bacteria and their toxins in tissues, typically through infection of a wound. Septicemia, as we know, is blood poisoning especially that is caused by bacteria or their toxins. From the death certificate, we find that the patient died of sepsis and multi organ failure. The hospital authority cannot evade its responsibility for such development of infection in the patient during her stay overthere which may also be termed as hospital acquired infection. High standard of aseptic and sterile condition should be maintained in hospital which is not done here by OP No. 3. Insofar as the patient was on ventilation, more sterile condition should have been maintained there. Maintenance of sterile and aseptic condition in hospital to prevent cross infection should ordinarily be a routine maintenance of hospital. But owing to lack of such sterile and aseptic condition, the patient developed such infection.
The liability of the hospital authority cannot be brushed away. The hospital authority of course could not do it all by themselves as they have no ears through the stethoscope and does not hold the surgeon’s knife. They, however, do it through their employees that they employ and if their staff are negligent in rendering proper service, the hospital authorities are just as liable for that negligence as anyone else who employ others to do its duty. OP No. 3 is an institution. It was the duty of the nursing home to get her treated by Dr. Todi or some other doctor of similar stature.
The hospital authority accepted the patient for treatment and as such, it was their duty to treat her with reasonable care. OP No. 2 referred the patient to Dr. S.K. Todi on 20-08-2012 to see the patient. Most surprisingly, the OP No. 3 could not arrange it in a week’s time. While deposing before us, the OP No. 2 sought to defend the OP No. 3 stating that Dr. Todi was not available at that moment. However, there is no explanation from his side as to why another eminent doctor of his caliber from the same discipline could not be consulted, if Dr. Todi was indeed unavailable during that period. Although we have no such intention to cast any shadow into the competence of Dr. S. Sinha, we feel, while the condition of the patient was quite serious and was on ventilation since the very beginning of her admission, more caution should have been exercised on the part of the hospital authorities to arrange best medical assistance to the patient.
We thus find gross negligence and/or deficiency in service on the part of each of the OPs and accordingly, hold them liable to pay compensation to the Complainant.
Next, we embark on determining the quantum of compensation. It appears that the deceased was 38 years old at the time of her death. She died leaving behind her son and daughter, apart from her beavered husband, as submitted by the Ld. Lawyer appearing from the side of the Complainant. She died an immature death. Her death was a great loss to her family and we think that no death can be compensated in terms of money. It is, however, true that she was not an earning member of the family. Be that as it may, her family suffered great emotional loss and her son and daughter lost their mother and her husband lost his beloved wife.
OP No. 2 has candidly submitted before the Forum that he received only Rs. 6,000/- as consultation fees out of the total billing amount of Rs. 4,50,000/-, as alleged by the Complainant. OP No. 3 has, however, submitted in its written version that the actual bill amount stood at Rs. 2,15,453/-, out of which Rs. 2,00,000/- has been paid by the Complainant and balance amount has been treated as discount.
Giving anxious thought over the nature of dispute and considering all aspects of this case, we think that proportionately greater amount should be imposed upon the OP No. 3 hospital out of total amount of compensation given the fact that lion’s share of profit is bagged by the hospital/nursing home authority in general, as we know.
Consequently, we think it would be just and proper to award a total compensation of Rs. 6,00,000/- in favour of the Complainant.
Both these points are, thus, decided in favour of the Complainant.
Hence, it is,
ORDERED
that C.C. No. 18/2014 be and the same is allowed on contest against the OPs. OP No. 1&2 are liable to pay compensation of Rs. 1,00,000/- each and OP No. 3 to pay rest amount of compensation, i.e., Rs. 4,00,000/-, as also the litigation cost for a sum of Rs. 9,000/- to the Complainant within 40 days from the date of this order failing which the Complainant would be at liberty to execute this order in accordance with law and in that case, OPs would be liable to pay fine in the form of interest @ 8% p.a. over the compensation amount according to their proportionate share of liability from this day till full and final payment is made.
