Delhi

North East

CC/25/2013

Smt. Shabana - Complainant(s)

Versus

Dr. R. Singh DHMS , Mavi Hospital Pvt. Ltd. - Opp.Party(s)

31 May 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.25/13

 

In the matter of:

 

	Smt. Shabana W/o Sh. Zafar Ali R/o C-78, Gali No.1, Munga Nagar Delhi-110094	Complainant
	Versus
1           2	Dr. R. Singh DHMS (Medical Director) Mavi Hospital Pvt. Ltd. B-2/11, Nehru Vihar, Karawal Nagar Road Delhi-110094   Dr. Deepali Bisht M.D. (Gynecologist) Mavi Hospital Pvt. Ltd. B-2/11, Nehru Vihar, Karawal Nagar Road Delhi-110094
		Opposite Party
Order

 

	DATE OF INSTITUTION:	21.01.2013
	DATE OF DECISION      :	31.05.2017

 

Nishat Ahmad Alvi, Member

1. As per complaint complainant went to OP1 hospital where she got treated by OP2. As per advise of OP2 after regular checkups and medicines she was admitted in OP1 hospital on 20.02.2012. On 21.2.2012 at about 12:00 hours she gave birth to a child, through operation. Thereafter at about 2:30 PM one staff nurse, namely Menaz, gave metro 100 injection to her, intramuscular and not intravenous. After some time complainant’s hand started getting swelling and innumerable pain. On complaint various medicines were given, by OPs to her, but with no result. Rather condition of the hand kept on deteriorating day by day, inspite of OPs’ false assurances to cure the same, on one pretext or the other. Finding no way out complainant had to visit another doctor to whom she could not produce treatment records, as OPs didn’t provide the same to her, despite approaching them several times, on the false excuse that the documents being with senior doctor, on leave, report could not be prepared. Notice dated 01.10.2012 to OP2 for requiring the same was also not responded to by OP2. Even police complaint with copies thereof to ACP and DCP concerned had no bearing on OPs. Despite severe unbearable pain and swelling in the hand of the complainant treatment record has not been provided to her. In this manner due to negligence of OPs, life of the complainant has spoiled and ruined. She is not able to do household chores from her hand and has become totally dependent upon others. Pleading negligence, deficiency in service, unfair trade practice and consequent harassment, mental pain and agony complainant has prayed for grant of compensation in a sum of Rs. 18,00,000/- beside Rs. 15,000/- as litigation cost.
2. After notice OPs, by filing their reply, have alleged that there was no negligence on their part. They took complete care in treatment of the complainant, by following all standard procedures and keeping the complainant informed of the same at all stages. The treatment was done by qualified doctors. Rather complainant is guilty of concealment of the fact that prior to it she had been pregnant thrice while she stated that it was twice only. Since it was 4^th pregnancy, which was possible through operation only, she was a high risk patient. She was prescribed medicines and was asked to come back for review but she did turn up after a delay of two months, that too without any investigation report, on 25.1.2012. Again on 1.2.2012 she came with pain over scar site. Keeping in mind her fragile condition, she was advised immediate admission which she refused and it was after 20 days that she approached OPs with pain in abdomen, on 20.2.2012 OPs considering her condition got her admitted for C-Section. Preoperatively, she was given medicines as per standard procedures and for administering medicines intravenously a cannula was also inserted in the dorsum of her right hand. On 21.2.2012 a healthy baby was born without any complication. After delivery she was kept nil per orally and was on medication and fluids intravenously. She was advised to restrict the movement of her right hand to prevent displacement of the cannula which she did not adhere and acted in blatant defiance. She complained of a swelling and pain in her right hand around the cannula site at 3:30-3:45 PM on 21.2.2012 which was immediately attended to by OP2, by removing cannula and placing it on other hand. Opinions of other anesthetist and other orthopedic surgeons were also sought and she was diagnosed initial stage of ‘compartment syndrome’ with palpable radial pulse. Orthopaedicion suggested fasciotomy. Meanwhile she was advised to undergo color doppler of right upper limb, which she refused. On the next morning she was again evaluated by OP2 and orthopaedicion. As hand swelling was still present, fasciotomy was performed on 22.2.2012. Over next three days hand swelling and pain decreased. She was explained that it will take one month for the hand to heal properly. Color doppler test was arranged on 24.2.2012 which showed patent vessels and subcutaneous edema. On complainant’s insistence she was discharged with necessary advise / precautions and necessary requirements. She was given a complete discharged summary and necessary documents. One of the necessary requirements was to get the right hand dressed/bandaged daily by a doctor to ensure proper heeling. Complainant regularly came for dressing for 5 to 6 days but stopped thereafter. At no point of time movements of hand and fingers of the complainant was affected due to swelling which was also painless. She was given treatment free of cost as she could not afford the expenses for the same. But she did not adhere to the medical advice and after some days, complainant and her husband came alongwith 50 to 60 persons and threatened the OPs and demanded Rs. 2,00,000/-. Fact of giving Intramuscular metro-100 is denied by the OPs, further stating that on 21.02.2012 the nurse namely Menaz was not even attending the complainant. On that day her duty was not on the ground floor, where complainant was admitted. Even otherwise said nurse is duly qualified nurse. Fact of not providing medical reports is false while same was provided on discharge alongwith discharge summary. Complaint is based on unscientific layman conjectures, misbelieves, assumptions & presumptions and denying negligence and harassment on their part, OPs have prayed for dismissal of the complaint.
3. Prior to reaching any conclusion Medical Opinions from GTB Hospital as well as Delhi Medical Counsel were sought. Both the parties filed their respective affidavits of evidence alongwith relevant documents.
4. Heard and perused the records.
5. Admittedly, there was no problem in the pregnancy and delivery took place without any complication. Dispute alleged is of the post delivery period when swelling, pain and discolouration in the right hand and forearm of the complainant appeared. Fact of this problem has been admitted by OP. OP further states that this too was treated and even after discharge, though on the insistence of complainant herself, OP entertained complainant by dressing her hand for 5 to 6 days in the OPD.

Now, question to determine remains about negligence, if any, on the part of OPs particularly staff nurse while giving Metro 100 injection or other medicine, during treatment, problem in hand could be the side effect whereof. We have to see also the negligence, if any, on the part of OPs in not providing discharge summary, to the complainant, on discharge or thereafter, in the absence of which the other doctor, to whom complainant consulted, was not able to give proper treatment of this swelling, pain and discoloration.

6. We sought clarifications from GTB Hospital on its opinion on the questions ;

1.  What are the side effects of Metro 100 injection particularly if given to patient like in complainant’s condition? If no side effect, as to whether there is any other medicine, injection, as given in treating the complainant, which could cause such side effect like swelling, blackening of skin and losing grip / strength in the hand and the arm.
2. If any side effect of Metro 100 injection or any other medicine or injection, given in treating complainant – patient, whether it could cause swelling, blackening of skin and losing grip/ strength in hand and the arm? If so, under what circumstances?
3. Whether Metro 100 injection can be given intramascular? If not, its after effect, if given intramascular.
4. Whether disturbance in the cannula, as complained of by the OPs, can cause such swelling, blackening of skin and loosing grip/ strength in hand and the arm?

In response GTB Hospital vide its letter dated 04.09.2015 sent report of its Committee which avoided to give specific replies of the queries aforesaid, just stating that names and doses of some drugs are not very clear.

We further sought medical opinion from Medical Counsel of Delhi which opines –

•  

7. Complainant has referred two cases (i) Spring Meadows Hospital V/s Harjot Ahluwalia 1998 SC 4 SCC 39 and (ii) Doon Valley Hospital and others V/s Master  Shivabshu & Anr. IV (2016) CPJ 43 (NC).
8. In Spring Meadows matter Hon’ble Supreme Court has held that wrong injection by Nurse amounts to negligence on the part of Doctor as well as Nursing Home.
9. In Doon Valley Hospital case Hon’ble National Commission has held the hospital guilty for negligence, that being a case of res ipsa Loquitur, observing – the treating doctor and nursing staff should monitor the patient with utmost care during treatment, especially at the time of IV Infusion and held doctors liable for negligence and hospital for not being able to explain how gangrene of hand occurred within 2-3 days after IV Infusion. Other cases referred by complainant are Malay Kumar Gauguli & Dr. Kunal Shah V/s Dr. S. U. Kumar Mukhjerjee & Ors. (2009) 9 SCC 221. In this case Hon’ble Supreme Court has held that medical opinion is only advisory and not binding.
10. On the other hand OP has referred only Kusum Sharma V/s Batra Hospital AIR 2010 SC 1050 – which held that exercise of ordinary degree of professional skill and competence is sufficient for the doctor to exonerate him from the liability of any medical negligence.
11. Going through the judgement / orders referred by both the parties and other relevant orders / judgements i.e. Jacob Mathew V/s State of Punjab (2005) 6 SCC 1 V. Krishna Rao V/s Nikhil Super Speciality & ors. III (2010) CPJ 1 (SC), Bolam V/s Friern Hospital (1957) 1 WLR 582 Indian Medical Association V/s V.P. Shantha (1995) 6 SCC 651 Martin F.D’souza V/s Mohd. Ishfaq (2009) 3 SCCI and literature on medical science, we find that it is not necessary for him to have any special skills and competence but only an ordinary skill and competence required by an ordinary doctor of that field is sufficient. To prove medical negligence things to prove we have to see that the doctor has failed (i) to have an ordinary degree of professional skill and competence and (ii) to show that his conduct doesn’t fall below that of the standards of care required from a reasonably competent doctor.
12. Harm resulting from mischance or misadventure or through an error of judgement would not necessarily attract such liability. Thus, we have to restrict ourself to the standards of care only as required, on the part of OP. For this purpose we have gone through the records and medical opinions.
13. Taking into consideration both the medical opinions, cause of the problem in hand could be due to displacement of cannula as well as extravasation of drug being administered i.e. the intravenous fluids being flown out of the veins. OPs’ own admission of disturbance in the cannula supports the opinion of medical experts. OPs only defence is that the patient was of a restless nature and she was asked to take care which she didn’t. It is rather strange , even if we go alongwith OPs for a moment, can we accept that the doctors and nursing staff have taken adequate or proper care of the patient? Was it not the duty of treating doctors and nurses to periodically check or atleast check on giving any intravenous drug  as to whether the drug were going on into the veins of the complainant as it was supposed to in that special condition. Was it not the duty of doctors and nursing staff, to take special care particularly, when they were aware that the patient is of a restless nature and extravasation of any drug could lead to gangrene if flown out of veins? In that case in our opinion the duty of care was greater.   Not     only     this      as         stated                               by      complainant    herself,     at   the   time of arguments,

that while giving Metro 100 injection she complained stiffness and severe pain in the hand and arm but the nurse giving injection took it lightly and continued without  bothering to check if everything was alright. Rather told the complainant that it is normal thing. It appears that doctor and nursing staff were negligent while the complainant was a helpless victim of this negligence. If the medication had been given properly and inside the veins and the doctor and nurse were not negligent the injury would not have happened and the gangrene could not have set in the hand, its fingers and the arm and the same could have been saved. It is a case of gross negligence on the part of doctors and nurses of the OP hospital to allow this to happen.

14. Not only this though, as per OPs own contentions, complainant was discharged against medical advise, as per wish of complainant herself. But there is nothing on record to show why complainant after treatment of this problem for so many days continued to attend outpatient department after her discharge, for receiving treatment/ dressing.
15. In this case when the patient as alleged, if found, rowdy and irritable and when hospital has been administering medication which could cause injury if not properly administered, the principal of res ipsa Loquitur applies. The principle of res ipsa Loquitur is explained in Ashish Kumar Majumdar v/s Aishi Ram Batra Charitable Hospital Trust II (2014) CPJ-V (SC) in para 8 & 9 of this judgement Hon’ble Supreme Court has held “(8) the maxim res ipsa Loquitur in its classic form has been stated by Erle C.J. in Escort V/s London and Katherene Docks Co. (1885) 3 H&C 596.

`………. Where the thing is shown to be under the management of the defendant or its servant, and the accident is such as in the ordinary course of things doesn’t happen if those who have the management use proper care, it affords reasonable evidence of explanation by the defendants, that the accident arose from want of care.’

The maxim applies to a case in which certain facts proved by the plaintiff, by itself, would call for an explaination from defendant without the plaintiff having to allege and prove any specific act or omission of defendant.

16.  In Shaym Sundar V/s State of Rajasthan 1974 ACJ 296 (SC) it has been explained that the principal function of maxim is to prevent injustice which would result if the plaintiff was invariably required to prove the precise cause of accident when the relevant facts are unknown to him but are within the knowledge of defendant. It was also explained that the doctrine would apply to a situation when the mere happening of the accident is more consistent with the negligence of the defendant than with other causes”
17. In V. Krishna Rao V/s Nikhil Super Speciality hospital III (2010) CPJ 1 (SC) – Hon’ble Supreme Court observed – Michael Jones in his treatise on medical negligence has explained the principle of res ipsa Loquitor as essentially an evidential principle and opined that the said principle is intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred. In this case treatise also has referred the same principle as explained in scott case (supra) and has verified and gave illustrations where principles of res Ripsa Loquotor have been made applicable in case of medical negligence. The illustrations inter alia provide – where gangrene developed in complainant arm following an intra mascular injection.

In this case also gangrene had developed in complainant hand and the arm following and intravenious injection where the extravasation of drug was ruled by the medical opinion. Therefore, it was for the OPs to prove the absence of any negligence and due care and attention on their part in which they have failed.

18. On the basis of above findings we are of the view that though OPs do have required professional skill and competence but their conduct fell below the standards of care, required from a reasonably competent doctor. Thus, there is clear cut negligence on the part of OPs. Due to which even after best efforts the problem in arm, hand and fingers of the complainant could not be cured and has become permanently disabled while still she has a longlife to pass and responsibility of her children and she has been left only as a helpless victim of OPs’ negligence.

Therefore, holding OPs guilty for, deficiency in service as well as , adopting unfair trade practice we direct both the OPs to pay to complainant,

jointly and severally ;

1. A compensation of Rs. 15,00,000/- (Rupees Fifteen lacs only); and
2. Litigation cost of Rs. 11,000/-; (Rupees Eleven Thousand only)

Within 30 days from the receipt of copy of this order, beyond that interest @ 12% per annum shall be charged till final realization of this amount.

19. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
20. File be consigned to record room.

Announced on  31.05.2017       

 

(N.K. Sharma) President

(Nishat Ahmad Alvi) Member