DR. S. M. KANTIKAR, MEMBER

1.       This appeal has been filed under Section 19 of the Consumer Protection Act, 1986 against the order dated 7.12.2011 passed in Complaint case No. 8 of 2009 by UT State Consumer Disputes Redressal Commission, Chandigarh   (in short, ‘the State Commission’) whereby the complaint filed by the complainant, has been allowed directing the OP/appellant to pay total sum of Rs.6,60,000/- as a compensation along with litigation costs of Rs.10,000/-.

2.       The brief facts:

Pritpal Kaur, since deceased (hereinafter referred as ‘the patient’) aged about 55 years, was suffering from  eye problem and on 23.1.2008, she was admitted in emergency at Advance Eye Care Centre in Post Graduate Institute of Medical Education and Research(PGIMER), Chandigarh- the OP.  She was also suffering from other health problems, like fever, difficulty in breathing with pain in abdomen, backache and diarrhea.  The on duty resident doctor had  treated her and kept overnight. At about 10.00 a.m, on 24.1.2008, even though patient’s condition was not improved, she was discharged from Eye Centre; with an advice to take antibiotics. Patient was a known case of Restrictive Cardiomyopathy having diastolic heart failure, raised JVP with tender hepatomegaly. Her BP was 70/50 mm of Hg.  The complainant alleged that the patient instead of being discharged; should have been referred to Cardiac emergency.  On the same day at 10.30 a.m., the complainant took his wife to Medical OPD at PGI, who referred her to Cardiac OPD.  The Senior Resident (SR),  Dr. Ashish/OP-2 at Cardiac OPD examined her and prescribed her ORS and Ciplox TZ tablets.  However, Dr. Ashish/OP-2 did not consult any senior Cardiologist; he ignored extremely low BP and serious condition of the patient.  The complainant took her back home but again, on 25.1.2008, he brought her to Advanced Eye Centre for further check-up.  Dr. Usha Singh examined her and advised her to take ENT consultation.  Accordingly, the patient  had visited   ENT OPD.  Despite her sick condition and diastolic failure with low BP, Dr. Usha Singh did not advise the patient to get admitted in hospital. The doctors failed to realise the seriousness and did not admit either in ICU or CCU; but sent her to home without proper advise. Thereafter, on 30.1.2008, the complainant took the patient to PGI in more deteriorated condition.  She was treated in medical emergency ward by junior doctors.  For 24 hours, no doctor either from cardiology or medicine attended her.  At 4.30 p.m., due to her critical condition,  one tube was inserted in her trachea and she was put on Ambubag.  Complainant had made several requests to the doctors to shift the patient to ICU/CCU , but till her death, she was not shifted to ICU; ultimately patient died on 3.2.2008.  It was alleged that the death was due to medical negligence and deficiency in service on the part doctors at OP/PGI.  Harbans Singh, the husband of deceased patient,. filed complaint before the State Commission seeking proper relief.  Harbans Singh died; during the pendency of the complaint, therefore, his three daughters were brought as legal heirs on record.

3.       The OPs filed their written statements before the State Commission and resisted the entire allegations of the complainant.  The OPs submitted that on 23.1.2008 the patient was presented to emergency department at Advanced Eye Centre, PGI. It was the case of Orbital Cellulitis. Also, she had other symptoms of pain in abdomen and diarrhea, therefore, she was immediately put on IV fluids, antibiotics viz Ceftriaxone  1.5 mg. + Sulbactam 0.5 mg. bd, and injection Metrogyl 500 mg tds.  She was kept overnight under observation  and treatment.  The Internal Medicine consultation was taken and urgent CT scan was done on the same day.  At 11.00 p.m., the patient was seen by SR of Internal Medicine and continued the same treatment.  The BP recorded by SR was 90 mmHg systolic. The patient improved significantly, the swelling in her eye had decreased and she was in mobile condition.  She was discharged on 24.1.2008.  At the time of discharge, she was advised to seek Medical consultation in view of her past history of Cardiomyopathy.  The patient visited Cardiology OPD on 24.1.2008.  The BP was 80/60, mm of Hg but, there were no signs of decreased urine output or altered sensorium, thus it shows , the peripheral perfusion was normal.  The patient was advised to stop Diuretics and Diltiazem to increase the blood pressure.  The patient was given a date for Echocardiogram and advised to attend medical emergency on SOS basis.  She was assessed by SR of Cardiology and properly advised.  On 25.1.2008, for the follow up; patient was re-examined in eye OPD.  As there was Orbital Cellulites secondary to Frontal Sinusitis (sinus infection), she was referred to ENT for opinion, wherein she was advised proper medicines. Subsequently, on 30.1.2008, she was admitted in Medical Emergency ward. The SR from Cardiology performed Echocardiography, it showed the Restrictive Cardiomyopathy.  A Central Venous Catheter was inserted for volume resuscitation with inotropic support.  On 31.1.2008, needle aspiration was carried out from an abscess over left orbit, and she was put under cover of appropriate antibiotic regimen of ‘Vancomycin’, ‘Levofloxacin’ and ‘Piperacillin-Tazobactam’ with inotropic drug support. The diagnosis of  severe sepsis was made.  Because of her poor respiratory effort, an endotracheal tube (ETT) was inserted. Because of unstable respiratory status, she was put on a mechanical ventilator from 31.1.2008.  Cardiology review was done by the SR on-duty. Dr.Yashpal Sharma – the Additional Professor of Cardiology advised to continue on the same line of management.  The patient was given one unit of blood and one unit of platelet rich plasma.  On 1.2.2008, ENT consultation was also sought for sinusitis, who also suggested the same management.  On 1.2.2008, her condition showed some improvement, she was responding to commands, but on 2.2.2008, she again developed shock, therefore, Inotropic support was further augmented.  She was again reviewed by Cardiology department, on 3.2.2008. She had further developed Acute Renal Failure (ARF), therefore, peritoneal dialysis was initiated, but unfortunately, she succumbed to death on 3.2.2008.  There was no negligence on the part of treating doctors at PGI or at their Advanced Eye Centre.

4.       On the basis of evidence from both the parties and relying upon the expert opinion ;the State Commission allowed the complaint and directed the OP-PGI, to pay total amount of Rs.6,60,000/- along with litigation costs of Rs.10,000/- to the complainant. Being aggrieved, the OP filed the instant appeal before this Commission.

5.       We have heard the learned counsel for the parties.  Learned counsel for the appellant/OP submitted that the State Commission proceeded on surmises and conjectures, ignoring the expert opinion given by Government Medical College.  There was no evidence to prove that, the patient was required to be shifted to ICU or CCU. The patient was under treatment of  team of expert doctors.  Moreover, the Medical emergency ward was perfectly well equipped to deal with such emergency situation.  Every case does not require ICU or CCU admission.  The patient’s death was due to her deteriorated health condition because of Acute Renal Failure.   During hospitalization, many Senior and Junior residents were monitoring the patient.   The patient was given treatment in accordance with the standard guidelines of “Surviving Sepsis Campaign”.  The counsel further submitted that, without any direction from State Commission, complainant had produced an expert opinion from a private Cardiologist i.e. Dr. Anil Grover; the opinion is not authentic. The State Commission erroneously accepted the opinion from the independent doctor, whereas rejected the expert opinion submitted by the Government Hospital, Chandigarh. As a matter of record, Dr. Anil Grover had an element of personal animosity with the appellants having served the PGI earlier, and having indulged in litigation for the post of Director of the Institute from time to time. 

6.       On the other hand, the learned counsel for the complainant had heavily relied upon the opinion given by Dr. Anil Grover. The counsel submitted that proper treatment and monitoring of such a patient was not possible without hospitalization. The OP doctors had knowledge of patient’s Restrictive Cardiomyopathy.  Despite  of patient’s critical condition, she was made to run from one OPD to another. Her BP was as low as 70/50 ; thus  she was in  Diastolic Heart Failure; also, she was grossly dehydrated and needed immediate treatment.  Instead of admitting her in CCU/ICU, the doctors had discharged her wrongly.  The medicines were discontinued; there was no monitoring in the house, which further deteriorated her health and led to her death.

7.       We gave our thoughtful consideration to the arguments of both the parties, perused the medical record and evidence on file. During the proceedings, the State Commission had sought an expert opinion from the Government Medical College and Hospital, Chandigarh.  The Committee of Medical Experts headed by Dr. Atul Sachdev opined that the treatment given on 24.1.2008 was correct and use of antibiotics for the deceased eye infection was proper.  The Committee also endorsed the fact that there was no worsening of patient’s Restrictive Cardiomyopathy.  The advice of ORS and antibiotic (Ciplox TZ) was correct for management of dehydration of deceased patient.  Per contra to the aforesaid expert opinion, complainant on his own without seeking any direction from State Commission, had produced another opinion from Dr. Anil Grover. According to the OPs the State Commission ignored the reliable expert opinion from Government Institute, but accepted the entire opinion of private expert.

8.       We would consider the chronology of events in this case.  Firstly, on 23.1.2008, the patient was admitted in the Eye Emergency of Advanced Eye Centre at PGI Chandigarh for eye problem.  It is an admitted fact that the patient was suffering from Restrictive Cardiomyopathy since 1999, and the same was mentioned by the SR who was on the emergency duty. According to the medical records, the patient was very sick and had difficulty in breathing, pain in abdomen and diarrhea.  After overnight stay, she was discharged from Emergency Advanced Eye Centre at about 10 a.m. on 24.1.2008, with the advice to take antibiotics.  At the time of discharge, her BP was 70/50 mm of Hg and she was in Diastolic Failure, with raised JVP and tender hepatomegaly.  Thus, in our view, under such serious condition, the patient should not have been discharged, but either admitted or it was necessary to refer her to Cardiac emergency. On 23 and 24.1.2008, her BP remained between 60/40 to 80/50 on both the days.  On 24.1.2008, even the patient was examined by Dr. Ashish, the Senior Resident in Cardiology, but he failed to take care of serious condition of the patient having extremely low BP and the infection in the eye.  He without consulting any Senior Cardiologist, simply advised for ORS and Ciplox TZ ; the patient was sent back home.  On the next day, on 25.1.2008, the complainant took the patient again to Professor Dr. Usha Singh at Eye Centre, who after examination referred the patient for ENT consultation.  Even the ENT doctors also ignored the patient’s low blood pressure, elevated JVP and Tender Hepatomegaly; neither Dr. Usha Singh nor ENT doctors admitted her in medical emergency, but she was sent back to home. Subsequently, on 30.1.2008 patient in the deteriorated condition was taken to PGI medical emergency OPD. She was treated there from 30.1.2008 to 3.2.2008 in OPD medical emergency ward by the junior doctors.  For the first 24 hours, none of the senior doctors attended the patient; but after  hue and cry from the complainant , one  Dr. N. Sharma attended the patient and put her on  ventilator.  Thereafter, the condition of the patient became bad to worse; even then, the patient was not shifted to ICU or CCU till her death.

9.       Thus, it is amply clear that, there were many lapses on the part of treating doctors in various departments at PGI, namely, viz. Ophthalmology, ENT, Medicine and Cardiology.  It was an institutional negligence.  Therefore, we hold the institute vicariously liable for the acts of their doctors. It was not a standard of care to the emergency patient. Considering the patient’s deteriorated health condition,   hospitalization was needed, but she was discharged; and was subjected for OPD follow up, which is not justified in the instant case. 

10      Now, the second point for consideration is the expert opinions which are on the record filed by both the parties.  The complainant had filed an opinion of Dr.Anil Grover, a Private Consultant, Cardiologist.  According to him, there was deficiency in service during the treatment of the patient.  He opined that Ophthalmologist at Advanced Eye Centre after treating eye complaint had properly advised the patient to take follow-up in Medical/Cardiac emergency.  According to Dr. Grover, there is lot of difference in examining the patient in emergency OPD/Ward and in Cardiology OPD.   Also, the examination of patient by Consultant or Junior or Senior Resident (SR) has lot of difference.  The SR from internal medicine after seeing the patient in emergency can admit the patient under Cardiology department.  Under such circumstances, the patient was not seen by any Consultant or Cardiology for detailed examination.  Even there were no verbal instructions to the SR about the treatment aspects.  Thus, it was the fundamental mistake amounting to criminal negligence.  Dr.Grover also submitted that one does not send the patient to home, who was perceived to be “sick, septicemic” and has systolic BP of 80 mmHg with raised JVP.

11.     In addition, the State Commission had referred the matter to the Government Medical Hospital at Chandigarh for the expert board opinion.  Dr. Atul Sachdeva opined that, the treatment given at OP/hospital by the concerned doctors was correct at the relevant time.  According to him, the finding of low BP, elevated JVP and Tender Hepatomegaly, could be part and parcel of possible disease and restrictive cardiomyopathy.  The administration of IV fluids in such patient can lead to cardiac failure, if not monitored properly. Therefore, for the said reasons, SR Cardiology had advised to continue ORS and referred the patient to Gastroenterology OPD and called her to emergency OPD SOS. Thus, the overall treatment given at PGI was correct. 

12.     On considering both the opinions, in our view, the opinion from Government Hospital, Chandigarh had not commented about need for hospitalization of the patient, who was very sick; whereas Dr. Anil Grover clearly opined that patient’s condition was very sick and she was in the diastolic failure, her admission in the hospital was necessary.  Moreover, the OP/hospital and doctors have not clarified as to why the patient was not admitted in ICU or CCU despite knowing that her BP was persistently low. The OP/Hospital also has not clarified whether the ICU beds were available or not?  The patient was discharged and sent home twice in sick condition, which further caused deterioration of her health.  It is transpired from the medical record that on 30.1.2008, even after admission in the emergency OPD ward, the patient was not attended by any senior doctor or consultant for more than 24 hours.  Therefore, we agree with the well-reasoned opinion given by Dr. Anil Grover.  It is justified.

13.     The catena of judgments from Hon’ble Supreme Court had discussed about medical negligence. In the case of Dr. Laxman Balakrishna Joshi Vs Dr. Trimbak Bapu Godbole AIR 1969 SC 128, which laid down that a doctor when consulted by a patient, owes him certain duties, namely,

(a)     a duty of care in deciding whether to undertake the case;

(b)     a duty of care in deciding what treatment to give; and

(c)     a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.

The principles were reiterated in A.S. Mittal Vs. State of U.P. AIR 1989 SC 1570. In Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors, 2010 (3) SCC 480, the Apex Court took note of various decisions. According to Halsbury's Laws of England Ed.4 Vol.26 pages 17-18, the definition of Negligence is as under:-

"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 a 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."

          Also, in Whitehouse vs Jordon House of Lord Edmund-Davies, Lord Fraser and Lord Russell (WLR p.258 B & D):

  "The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon (dictum of McNair Jo. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 at 121).

14.     Taking reference from the above judgments; we are of the considered view that the doctors at the OP, PGI from the Departments of Ophthalmology, ENT, Medicine and Cardiology, failed in their duty to provide reasonable care and treatment to the deceased wife of the complainant. The allegations of medical negligence levelled in the consumer complaint, thus, stand proved.  In so far as the award of compensation is concerned, the State Commission directed the Institute as well as the two doctors, arrayed as parties in the consumer complaint to pay the compensation of Rs.6,60,000/- alongwith other compensation to the complainant.  We, however, deem it appropriate to modify the said order and direct that since the OP/PGI is vicariously liable for the negligence of their doctors, the OP, PGI shall pay the amount awarded to the complainant in the first instance.  However, the OP, PGI shall be at liberty to conduct their internal disciplinary proceedings in the matter in order to fix responsibility for the lapse and then to recover the amount from the erring doctors, if considered appropriate.

          The appeal is ordered to be dismissed with the aforesaid modification in the order of the State Commission.