Chandigarh

StateCommission

CC/438/2018

Bharat Bhushan - Complainant(s)

Versus

Post Graduate Institute of Medical Education and Research - Opp.Party(s)

Abhishek Sethi, Adv.

04 Mar 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	438 of 2018
Date of Institution	:	26.11.2018
Date of Decision	:	04.03.2020

 

1. Bharat Bhushan son of Lt. Sh. Raj Dev, aged about 56 years, resident of H. No. 864, Ward No. 14, Near Bus stand, Jindal Road, Jakhal Mandi, Jakhal, Tehsil Tohana, District Fatehabad, Haryana, PIN-125133.
2. Lata Rani wife of Sh. Bharat Bhusan, aged about 49 years, resident of H.No. 864, Ward No. 14, Near Bus stand, Jindal Road, Jakhal Mandi, Jakhal, Tehsil Tohana, District Fatehabad, Haryana. PIN-125133.

 …..Complainants

 

Versus

 

1. Post Graduate Institute Medical Education & Research, Chandigarh through its Director.
2. Dr. (Prof.) Surinder Rana, Deptt. of Gastroenterology, son of not known, 2nd Floor, Block D, Nehru Hospital, PGIMER, Chandigarh, resident of H.No. 205-B, Type-V, Sector 24-A, Chandigarh.
3. Dr. (Prof.) Rajesh Gupta, Deptt. of General Surgery, son of not known, 5 th Floor, Block F, Nehru Hospital, PGIMER, Chandigarh; resident of H.No. 92, Sector 24, Chandigarh.
4. Dr. Kunal, Surgeon, Deptt. of General Surgery, son of not known, Nehru Hospital, PGIMER, Chandigarh.
5. Dr. Venu, Surgeon, Deptt. of General Surgery, son of not known, Nehru Hospital, PGIMER, Chandigarh.
6. Dr. Sneha, Senior Surgeon, Deptt. of General Surgery, wife/ daughter of not known, Nehru Hospital, PGIMER, Chandigarh.

…..Opposite Parties

 

7. Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi, Delhi-110060, through its Chairman, Board of Management. (deleted vide order dated 01.04.2019 in MA/198/2019.) 

Complaint under Section 17 of the Consumer Protection Act, 1986

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS. PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present:               Sh.Abhishek Sethi, Advocate alongwith Ms Richa Sethi,        Advocate for the complainants.

       Sh.Rajesh Garg, Senior Advocate assisted by Ms.Nimrata       Shergill, Advocate for the opposite parties no.1 to 6.

       Name of opposite party no.7 deleted vide order dated     01.04.2019 in MA/198/2019.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   Doctors must be immune and intrepid, if not negligent. It is not the intention of law that the Damocles' sword should always be hanging above the head of the physician or the surgeon. A doctor has been deemed synonymous to the greatest blessing of humanity because in our span of life, the person whom we all need, even if it’s for one time, is invariably doctors. The staunchest of human can deny the services of all others, but can never deny the service, the doctors provide, because they are always considered as a Messiah of life and death. The observation of famous physician Hippocrates is relevant to reproduce hereunder:-

          “Wherever the art of Medicine is loved, there is also a love of           Humanity.”

Equally it is well settled that the doctors must do their duty with due care and caution and without an element of negligence.

2.           Factual scenario:-

The instant case relates to the untimely death of a young boy of 23 years of age namely Sh.Manoj Kumar Goyal (hereinafter shall be called as the patient) who was suffering from abdominal pain since 2010, although he got treatment from various hospitals, yet no proper diagnose and unfortunately he breathed his last on 30.06.2018. This complaint has been filed by his parents alleging that the opposite parties were negligent while conducting his medical treatment, and especially, the surgical operation.

Undisputedly, Sh.Manoj Kumar Goyal was initially investigated at Rajasthan Medical Centre, Tohana (Haryana) by Dr. Subhash Gupta in the last week of December 2010, as the patient complained of pain in abdomen and distention abdomen. The doctor had noted that there was no history of loose motions and constipation but was history of nausea and occasional vomiting; although the patient lost his weight and appetite yet no history of fever. Dr.Subhash Gupta diagnosed him as the case of sub acute intestinal obstruction i.e. SAIO as such he advised surgical treatment which the patient had refused.

Thereafter, the patient Sh.Manoj Kumar Goyal remained admitted in Amar Hospital, Patiala, for the period from 03.01.2011 to 07.01.2011 and ever thereafter he got treatment as outdoor patient. The doctors of Amar Hospital diagnosed the abdominal disease as SAIO but cause of obstruction could not be found. Then, on 01.11.2011 he was taken to Dayanand Medical College and Hospital, Ludhiana, where Dr.Ajeet Sood treated him for one a half years. He was advised various laboratory tests and radio imaging. Endoscopic examination of gut was also done and biopsy was taken from various parts of intestines. Dr.Ajeet Sood also treated him for tuberculosis for nine months and gave him steroids for a short period, where he improved a little bit.

On 08.02.2013, the patient was registered as an OPD Patient as well as got admission from 06.07.2013 to 11.07.2013 at AIIMS, New Delhi,where he was examined and investigated thoroughly. The doctors at AIIMS performed the biopsy and lab investigations and it also diagnosed the disease as SAIO and its cause was intestinal obstruction, small bowel strictures and the pathology behind the stricture was found out to be inflammatory bowel disease (IBD) which is also known as Crohn’s Disease. It is alleged in the complaint that he was admitted for surgery but thereafter the same was refused because it was opined that the disease was non-operative.

In January 2016, the patient was referred to the PGIMER, Chandigarh, with the symptoms of pain in abdomen, distention abdomen and doctors found that he is suffering from chronic, undiagnosed and debilitating small intestine illness since 2010. Sh.Manoj Kumar Goyal was thoroughly investigated. He was ultimately diagnosed as recurrent sub acute intestinal obstruction, small bowel strictures, adhesions due to chronic IBD. The additional finding in their investigation was pericaecal hernia for which he was referred to Dr.Rajesh Gupta, Professor General Surgery at PGIMER, who opined that after surgical treatment, the patient could be cured. As such, surgery was performed on 30.04.2018 but on 08.05.2018, the patient left PGIMER against the medical advice (LAMA).

It is specifically asserted in the complaint that patient was taken to Sir Ganga Ram Hospital, New Delhi, on 08.05.2018, where he improved slowly and steadily; a revised surgery was performed on 21.05.2018 vide which both the ends of intestine i.e. one of small intestine and the other one of large intestine were taken out in the form of two openings in the abdominal wall; that the fecal matter and small intestine contents were continuously pouring out of these two openings in two separate bags, which was very disgusting and nauseating. However, the patient was discharged from Sir Ganga Ram Hospital, New Delhi, on 01.06.2018 and was asked to report after 15 days.

It is also added in the complaint that in the interregnum, the patient was nursed at home by professional nurses and was visited by the specialist doctors for the period from 04.06.2018 to 09.06.2018. The patient was again admitted on 15.06.2018 at Sir Ganga Ram Hospital, New Delhi, for second surgery, which was performed on 22.06.2018. Surgery i.e. closure of colostomy was performed and intake of oral fluids were started on 25.06.2018. However, Sh.Manoj Kumar Goyal took his last breath on 30.06.2018.

3.           It has been alleged in the complaint that death of the patient had occurred due to sheer negligence of the opposite parties and there was no need to conduct the operation and due to this wrong decision the patient had lost his life. 
4.           It has also been pleaded in the complaint that observations made  in Bolam Vs. Friern Hospital Management Committee 1957, are questionable on various grounds. It was stated in para no.34 of the complaint as under:-

“That even though Bolam test was accepted by the Hon'ble Supreme Court as providing the standard norms in cases of medical negligence, in the country of its origin, it is questioned on various grounds. It would not be out of place to mention at this juncture that Bolam test is a test that arose form English tort law which is used to assess medical negligence. Bolam holds that the law imposes a duty of care between a doctor and his patient, but the standard of that care is a matter of medical judgment. It has been found that the inherent danger in Bolam test is that if the Courts defer too readily to expert evidence medical standards would obviously decline. Michael Jones in his treaties on Medical Negligence (Sweet & Maxwell), Fourth Edition, 2008 criticized the Bolam test as it opts for the lowest common denominator. The learned author noted that opinion was gaining ground in England that Bolam test should be restricted to those cases where an adverse result follows a course of treatment which has been intentional and has been shown to benefit other patients previously. This should not be extended to certain types of medical accident merely on the basis of how common they are.”

5.           Through this complaint, the complainants are seeking following reliefs:-

“1. Direct the opposite parties/respondents No. 1 to 6 to pay the complainants the expenditure incurred on the treatment of their son (Present burden of expenses) i.e. an amount of Rs.18,05,671/- (Rupees Eighteen Lakhs Five Thousand Six Hundred & Seventy One Only);

2. Direct the opposite parties/respondents No. 1 to 6 to pay the complainants an amount of Rs. 25 Lakhs (Rupees Twenty Five Lakhs) on account of pain & suffering as well as loss of amenity;

3. Direct the opposite parties/respondents No. 1 to 6 to pay the complainants an amount of Rs. 25 Lakhs (Rupees Twenty Five Lakhs) on account of enjoyment of life & loss of life of their son due to medical negligence;

4. Direct the opposite parties/respondents No. 1 to 6 to pay the complainants an amount of Rs. 25 Lakhs (Rupees Twenty Five Lakhs) on account of future earnings/ income of their son;

5. Direct the opposite parties/respondents No. 1 to 6 to pay the complainants an amount of Rs. 2.5 Lakhs (Rupees Two Lakhs Fifty Thousand) on account of cost of litigation;”

6.           The complaint has been contested by the opposite parties by filing joint reply wherein it was submitted that the patient was suffering from chronic, undiagnosed and debilitating small intestine illness since 2010. The said disease was causing frequent attacks of abdominal pain, distension of abdomen, vomiting and severe mal-absorption. The patient was got admitted in various private hospitals as well as in AIIMS, New Delhi but without any relief. Ultimately, he was admitted in the PGIMER in 2016 and took consultation in surgery unit (GS-II) as there was no improvement.  Again he visited the PGI-OPD in September 2017 and was found to be severally malnourished because of chronic undiagnosed debilitating small bowl illness. It was specifically stated in para nos.9 to 13 of the reply as under:-

9. The patient visited the OPD of PGIMER first in September 2017 and was found to be severely malnourished because of this chronic undiagnosed debilitating small bowel illness. His all metabolic parameters suggested severe malnourishment with markedly low serum protein (5.6 g/dl: Normal: 6.4 to 8.3 q/dl), Vitamin D levels (7 ng/ml; Normal 11-42 ng/ml), Triglyceride levels (28.45 mg/dl; Normal: 50-200 mg/dl) and Cholesterol levels (53.54 mg/dl: Normal: 50-200 mg/dl) and delayed puberty (annexures 96-109 attached by the complainant). And  all these parameters were gradually deteriorating since the onset of disease with partial improvement only with aggressive nutritional rehabilitation.

10. The patient was re-investigated at PGIMER with a battery of blood, radiological and endoscopic investigations (annexures 96-125 attached by the complainant). The standard investigative approach in such patients is from non-invasive to minimally invasive to invasive surgical approach. The same approach was followed in this patient and no definite diagnosis could be established even after performing minimally invasive investigations like endoscopy and biopsy and high end and sophisticated radiological investigations. The patient was treated with enteral (oral) nutritional rehabilitation program  and locally acting anti-inflammatory drugs like Budesonide. Despite these extensive measures there was no response and patient continued to with symptomatic be symptomatic with deteriorating metabolic parameters (progressively decreasing albumin, iron stores, haemoglobin and progressive weight loss with weight on 22-11-2017 of 39Kg and 34 Kg on 4-1-2018).

11. The radiological investigations done at PGIMER again suggested presence of small bowel strictures and these strictures had not responded to empirical treatment. Therefore to establish the diagnosis as well as relieve the obstructive symptoms, one has to proceed to invasive methods of investigation. It is pertinent to mention that there are innumerable causes of small bowel strictures and histology is required for correct diagnosis. If endoscopy  and colonoscopy and biopsy have not revealed the diagnosis, the next step is laparotomy and resection for full thickness histopathological examination of the small intestine. This is the standard of care as well as standard teaching for managing such patients.

12. Therefore, the patient was referred to surgery unit after thorough non-invasive and minimally invasive investigations  and non-response to all possible empirical treatment. It is important to note that patient was not immediately operated. The patient was re-investigated by surgery team and repeat contrast enhanced computed tomography of abdomen was performed alongwith various blood investigations. The repeat CT (annexures 114 attached by the complainant) also suggested presence of small bowel strictures along with a possibility of peri-cecal hernia (a type of internal hernia which requires laparotomy for confirmation as well as treatment).

13. At this point the treating team at PGIMER was faced with a young patient having a rare undiagnosed chronic small bowel 8 years duration causing severe debilitative obstruction of symptoms with immune and nutritional depletion. Also, the radiological investigations were suggesting small bowel strictures and peri-cecal hernia. The standard medical teaching and care in such cases is exploratory laparotomy (surgery) with the following objectives:

1. Confirm presence of strictures and site of strictures
2. Resect strictures if technically possible with dual purpose of obtaining tissue for histological diagnosis and at same time achieve relief of obstruction to allow resumption of oral feeding.
3. Surgical treatment of internal hernia if confirmed on surgery
4. Obtaining surgically a segment of small intestine that would allow pathological analysis of full thickness of small intestine and subject it to battery of specialised tests to identify any treatable cause of intestinal obstruction”.”

 

7.           The allegations of negligence leveled in the complaint have been empathetically denied. It is added in the reply that surgery was done by Dr.Kunal Vikram Deo under the supervision of Prof. Rajesh Gupta and with the assistance of Dr. Venu Bhargava and Dr. Sneha Gulati. The qualifications of  the surgeons who performed surgery is as follows:- 

1. Dr Kunal Vikram Deo: MBBS, MS (General Surgery), Post MS experiences of 4 years, 4^th semester senior resident in MCh Surgical Gastroenterology.
2. Dr Venu Bhargava: MBBS, MS (General Surgery), Post MS experience of one and a half years, 1^st  semester senior resident in MCh Surgical Gastroenterology.
3. Dr Sneha Gulati: MBBS, 3^rd Semester Junior resident in MS General Surgery.

8.           According to the opposite parties surgery was performed by a team of highly competent surgeons who are individually capable of doing such surgeries and this is the practice followed in the PGIMER. It was further added in para nos. 21 to 32 of the reply as under:-

“21. During surgery, massively dilated small intestine was found with transition point at lleo-cecal junction (ICJ). After careful on table evaluation, no stricture or growth was found. Multiple enlarged mesenteric lymph nodes were found. Therefore patient underwent lleocecal resection with end to side ileocecal hand sewn anastomosis along with mesenteric lymph node biopsy(attached as Annexure C10 by the complainant). The resected specimen was sent for histopathological examination for full thickness evaluation of the small intestine. This is the standard surgery with such intra-operative findings.

22. Post operatively patient was allowed oral liquids on 1^st  post-operative day and given the standard post-operative care and all his vitals were carefully monitored and maintained. Post operatively patient showed satisfactory recovery initially. He was accepting orally with passage of flatus and stool.

23. Subsequently, he developed bowel distension and nasogastric tube had to be reinserted to decompress the intestine. Keeping in view the failure to maintain oral nutrition, central line was inserted and total parenteral nutrition was started on postoperative day 4 of surgery.

However, the new onset ileus did not recover in this patient and he continued to have abdominal distension along with vomiting. Therefore patient was treated with naso-gastric tube to decompress his stomach along with intra-venous nutrition.

25. Because of lack of significant improvement after surgery and persisting paralysis of intestine, patient was further investigated and a request for expedited histopathological evaluation of resected specimen was made.

26. Persisting dilatation of small intestine despite ileocecal resection with new transition point as evident on CT done 30.4.2018(attached as Annexure C5/201 by the complainant) was noted. It is important to note that there was no surgical complication with intact ileocolic anastomosis. The same were the findings on CT as well as gastrografiin study done later at Sir Ganga Ram Hospital, New Delhi thus ruling out any surgical complication (attached as Annexure 206, 211-213 by the complainant).

27. However the patient responded to conservative management and was passing stools as per records available. Since the abdominal distension settled, therefore, Nasogastric tube was removed on 5^th  May when the output reduced to 100ml in 24 hours. Patient was allowed orally and he tolerated small amount. However, again on 7^th May (16" Post-operative day), patient developed distension and Nasogastric tube had to be inserted. This pattern of illness having exacerbations was similar pattern.

28. The post-operative clinical course and investigations were as follows:

a. Persisting dilatation of small intestine despite ileocecal resection with new transition point as evident on CT done 30.4.2018 (attached as Annexure C5/201 by the complainant).

b. Persisting ileusi

c. Reactive mesenteric lymph nodeson histological examination

d. No treatable pathology identified on full thickness evaluation of small intestine. The intra-peritoneal fluid analysis was also normal. There was no granuloma nor any evidence of vasculitis in the resected specimen thereby suggesting "idiopathic motility disorder".

29. This clinical course of the patient as well as post-operative histopathological examination of full thickness small intestine suggested a diagnosis of a very rare, debilitating, progressive and non-treatable disease namely, Idiopathic chronic small intestinal pseudo-obstruction (ICSIPO).

30. The possibility of this disease as well as its clinical course along with intestinal transplantation being the only possible treatment was fully explained to the patient as well as complainant (attached as annexure 203-205 by the complainant).

31. Since post-operative ileus was persisting and his condition was deteriorating, patient was shifted to intensive care unit (ICU) and all standard of care was provided to the patient.

32. The next step in the management of this patient was:

1. Further specialised tests on the resected specimen to sub type ICSIPO
2. After stabilisation, divert the paralysed intestine outside.”

 

9.           In nutshell, the case of the opposite parties is that the patient had been treated for the complicated, chronic, rare, progressive and non-treatable gastrointestinal disease in a scientific and compassionate manner and thus, for the proper diagnosis and treatment surgery was required. According to them, all the doctors performed their duty very carefully and there was no alternative to detect the real cause of the chronic small bowel obstruction except to undergo for surgery.  
10.           We have heard the contesting parties and carefully gone through the evidence available on record, as well as the written submissions submitted by them.
11.           Learned Counsel for the complainants has submitted  that the decision of conducting surgery was basically wrong, indeed there was no need to conduct surgery upon the patient, rather, treatment may be provided orally by putting the deceased on medicines; that there was also negligence on the part of the doctors at the time conducting surgery/operation as cutting of intestine left fecal matter in the abdomen which resulted into infection and was the ultimate cause of death. In support of his contentions, he has placed reliance on Joginder Singh  and Ors. Vs. Dr.Rajeev Kumar Majumdar and Ors. 2009 (9) RCR Civil 587, All India Institute of Medical Sciences (AIIMS) Vs. Ayesha Begum, 2010 (3) CPC 558, LK Indnani  (Dr.)  Vs. Indraprastha Apollo Hospital, 2007 (53) RCR Civil 154, Bombay Hospital and Medical Research Centre Vs. Sharifabai Ismail Syed and Ors., 2008 (44) RCR Civil 936 and Dr. Sagnik Roy  Vs. Jagat Bandhu Debbarma and Ors. 2014 (77) RCR Civil 448.
12.           On the other hand,  Counsel for the opposite parties submitted that surgery was advised by all the previous hospitals i.e. Rajasthan Medical Centre,  Tohana; Amar Hospital, Patiala; Dayanand Medical College and Hospital, Ludhiana; and All India Institute of Medial Sciences (AIIMS)  New Delhi; that the purpose of surgery was duly mentioned in para no.13 of the written statement filed by the opposite parties. All the doctors of PGIMER had carefully conducted the surgery in a highly professional manner and skills and there was no question of any negligence on their part; that the surgery was successful; that the decision of the opposite parties to conduct surgery was fully correct as per the condition of the patient and other circumstances of the case; that nothing was observed by Sir Ganga Ram Hospital, New Delhi, to the effect that surgery was not conducted in a proper manner. According to him, there is not an iota of suspicion, if any of the members of the medical team of the opposite parties was negligent or failed to perform the duty with care and caution. In support of his contention he placed reliance on the extract from various medical journals and medical books as well as the judgments of the Hon’ble Supreme Court Martin D’Souza Vs. Mohd. Ishfaq, (2009) 3 Supreme Court Case (Civ) 735 and Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1.
13.           We have considered the rival contentions, and gone through the written submissions submitted by the complainants and material available on the record.  In this case, following questions have arisen for consideration of this Commission:-

1. Whether disease was diagnosed properly by all the hospitals referred to above i.e. Rajasthan Medical Centre,  Tohana; Amar Hospital, Patiala; Dayanand Medical College and Hospital, Ludhiana; and All India Institute of Medial Sciences (AIIMS)  New Delhi
2. Whether the decision taken by the surgery team of the PGIMER to conduct surgery was in any way improper?
3. Whether doctors of the PGIMER were negligent in performing their duties?

 

14.           Term Negligence :- First of all we shall discuss the legal term ‘negligence’. Which has three constituents namely:-

1. A legal duty to exercise due care on the part of the party complained of towards the complainant.
2. Breach of said duty.
3. Consequential damage.

                   The Black’s Law Dictionary defines negligence per se as under:-

“Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of statute or valid Municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes”.

 

                    While diagnosing ‘medical negligence’, the first and the foremost rule is the duty of care. It would be absurd to hold any person liable for his every careless act that causes damage. He may only be liable for negligence if he is under a legal duty to take care but he disobeyed it. We know that the legal duty is different from the moral, religious or social duty and therefore the consumer has to establish that the wrongdoer owed to him a specific legal duty to take care of which he has made a breach.                  Doctors generally have certain duties towards their patients. Some of the important duties include:-

1. to exercise a reasonable degree of skill and knowledge and a reasonable degree of care;
2. to exercise reasonable care in deciding whether to undertake the case and also in deciding what treatment to give and how to administer that treatment;
3. to extend his service with due expertise for protecting the life of the patient and to stabilize his condition in emergency situations;
4. to attend to his patient when required and not to withdraw his services without giving him sufficient notice;
5. to study the symptoms and complaints of the patient carefully and to administer standard treatment; etc.

 

15. 
              The test of medical negligence which was laid down in Bolam  Vs Frien Hospital Management Committee reported in (1957) 2 All ELR 118, has been accepted by the Hon’ble Supreme Court in various judgments including in Jacob Mathew Vs. State of Punjab and anr. 2005 SCCL.COM 456, laying down correct tests in cases of medical negligence.  Mc Nair, L.J. observed that:

"I must explain what in law we mean by 'negligence'. In the ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action."

Explaining further as to how to test whether the alleged act or failure is negligent and the answer given by the court is: "that in an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man in the street...But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this man exercising and professing to have that special skill. ...A man need not possess the highest expert skill at the risk of being found negligent. It is a well established law that it is  sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

 

16.           A Doctor is not guilty of negligence if he has acted in accordance with a practice  accepted as proper by a responsible body of medical men skilled in that particular art. It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. The Supreme Court has spelt out the duties of a doctor in Laxman Balakrishna Joshi Vs. Trimbak Bapu Godbole and Ors. (AIR 1969 SC 128) case:-

Earlier the high Court had held that, the death of the son of the claimant was due to the shock resulting from reduction of the patient's fracture attempted by the doctor without taking the elementary caution of giving anaesthetic. In this context, with reference to the duties of the doctors to the patient, this Court, in appeal, observed as follows:-

"The duties which a doctor owes to his patient are clear. A person holds himself ready to give medical advice and treatment impliedly undertakes that he is of skill and knowledge for the purpose. Such a person when consulted by a patient  owes him certain duties, viz., a duty of care in deciding whether to undertake case. A duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence  to the patient. The practitioner must bring to his task 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 particular circumstances of each case is what the law requires."

          "The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to course of action to be taken by a doctor treating a patient, but as long as a doctor acts in  a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."

 

 

17.           We may classify the negligence under civil and criminal law, which are indeed distinguishable.
    There is a clear cut distinction between medical negligence under criminal, civil and consumer protection law. Rigorous tests are laid down under criminal law for proving criminal medical negligence, whereas the tests are much less rigorous under the civil law.                       Furthermore, there is a marked difference as to the effect of evidence, namely, the proof in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. The Hon’ble Supreme Court of India in P.G. Inst. of Medical Education & ... vs Jaspal Singh & Ors , CIVIL APPEAL NO. 7950 OF 2002, decided on May 29, 2009  had discussed this especially in para no.12 to 16 as under:-

“12. Insofar as civil law is concerned, the term negligence is used for the purpose of fastening the defendant with liability of the amount of damages. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law.

13. In Syed Akbar v. State of Karnataka6, this Court dealt with in details the distinction between negligence in civil law and in criminal law. It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt.

14. In Bhalchandra Waman Pathe v. State of Maharashtra7, this Court held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

15. With regard to the professional negligence, it is now well settled that a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in (1980) 1 SCC 30 1968 ACJ 38 the given case the skill which he did possess. It is equally well settled that the standard to be applied for judging, whether the person charged has been negligent or not; would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

16. In Jacob Mathew1 as well as Martin F D'Souza2, this Court quoted with the approval the opinion of MacNair, J in Bolam v. Friern Hospital Management Committee :

"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ... It is well- established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

 

18.           Diagnose of the disease prior to admission in PGIMER- After the overall analysis, even critically, we observed that the real disease could not be detected by the doctors at different levels and in different hospitals for the 8 years i.e. from 2010 to 2018. Although surgery was advised by previous hospitals referred to above but it could not be conducted either by the refusal of the patient and his attendants or due to some other reasons. It has come into evidence that the patient was initially taken to Rajasthan Medical Centre, Tohana, then to Amar Hospital, Patiala, in the year 2010 where he took treatment and remained there for about a year. It has been specifically mentioned in the complaint that the patient was advised surgery, which was refused by him. It is stated in para nos.4 and 5 of the complaint as under:-

“4. That the brief facts of the case are that the patient was suffering from some abdominal ailment in the year 2010. When the first symptoms of the disease appeared the patient was investigated in Amar Hospital at Rajasthan Medical Centre by Dr. Subhash Gupta in the last week of December 2010. His complaints were pain abdomen and distention abdomen. There was no history of loose motions & constipation but there was history of nausea and occasional vomiting. There was some loss of weight & appetite but there was no history of fever. After all the investigations Dr. Subhash Gupta diagnosed the patient as a case of sub acute intestinal obstruction in medical parlance known as SAIO. But the cause of the obstruction was not clear. He advised surgical treatment which the complainant refused.

5. That from 03-01-2011 to 07-01-2011 the patient remained admitted in Amar Hospital, Patiala for the same illness. They also investigated and treated the patient conservatively. They also came to the same conclusion that the patient was suffering from SAIO i.e. sub acute intestinal obstruction but they also could not find the cause of the obstruction. The record (collectively) of the patient pertaining to Amar Hospital (and the said period) is being filed herewith as Ex. C-1 for a kind perusal of this Hon'ble Commission.”

 

 

19.           Thus, it is evident from the perusal of the complaint that Dr.Subhash Gupta of Rajasthan Medical Centre, Tohana, diagnosed the patient as the case of sub acute intestinal obstruction i.e. SAIO, as such, he advised surgical treatment which the patient had refused. Similar was the diagnosis at Dayanand Medical College and Hospital. In its treatment plan dated 15.12.2012 (at page 51 of the paper book), the doctor concerned of Dayanand Medical College and Hospital has categorically stated that the patient be admitted in Gastroenteritis (GE) unit, for the purpose of surgery and to consult and discuss GE Surgeon. Even in the AIIMS, the doctors advised surgery, this is why the patient was admitted for surgery.
20.           Even in its advice dated 11.07.2013 (at page 94) the AIIMS advised surgery/operation in case of pain abdomen/vomiting. There was no proper diagnose of the deceased. Generally the doctors were of the opinion that it was intestine obstruction. Dr.Ajeet Sood of Dayanand Medical College and Hospital, Ludhiana treated him for one a half years and he advised various laboratory tests and radio imaging. Endoscopic examination of gut was also done and biopsy was taken from various parts of intestine. Dr.Ajeet Sood also treated him for tuberculosis for nine months and also gave him steroids for a short period, whereas he improved a little bit but the chronic disease continued and could not be cured at Dayanand Medical College and Hospital, Ludhiana.
21.           Thus, the doctors at all the hospitals, referred to above, were of the opinion that for the proper diagnosis, a surgery is required to be conducted. When the patient was admitted as an indoor and outdoor patient at PGIMER surgery was not conducted immediately, rather, when all the alternatives to cure the chronic disease found to be futile, then the surgery was advised. The object of surgery has been described in para no.13 of the written statement as under:-

“13. At this point the treating team at PGIMER was faced with a young patient having a rare undiagnosed chronic small bowel 8 years duration causing severe debilitative obstruction of symptoms with immune and nutritional depletion. Also, the radiological investigations were suggesting small bowel strictures and peri-cecal hernia. The standard medical teaching and care in such cases is exploratory laparotomy (surgery) with the following objectives:

1. Confirm presence of strictures and site of strictures
2. Resect strictures if technically possible with dual purpose of obtaining tissue for histological diagnosis and at same time achieve relief of obstruction to allow resumption of oral feeding.
3. Surgical treatment of internal hernia if confirmed on surgery
4. Obtaining surgically a segment of small intestine that would allow pathological analysis of full thickness of small intestine and subject it to battery of specialised tests to identify any treatable cause of intestinal obstruction”.

 

22.           Before taking the decision to conduct surgery, the doctors of PGIMER have gone through the entire past history (for about 8 years) of the patient. They were of the opinion that for the proper diagnosis, surgery has to be conducted. The patient was extensively investigated from non-invasive to minimally invasive to invasive surgical approach, however, no definite diagnosis could be established even after performing minimally invasive investigations like endoscopy and biopsy and high end and sophisticated radiological investigations. The patient was treated with enteral (oral) nutritional rehabilitation program and locally acting anti-inflammatory drugs. Despite these extensive measures there was no response and patient continued to be symptomatic with deteriorating metabolic parameters (progressively decreasing albumin, iron stores, haemoglobin and progressive weight loss with weight on 22-11-2017 of 39Kg and 34 Kg on 4-1-2018).                             However, the radiological investigations done at PGIMER again suggested presence of small bowel strictures and these strictures had not responded to empirical treatment. Therefore to establish the diagnosis as well as relieve the obstructive symptoms, one has to proceed to invasive methods of investigation. Endoscopy, colonoscopy and biopsy did not reveal the diagnosis, and as such the next step taken was laparotomy and resection for full thickness histopathological examination of the small intestine. This infact is the standard of care as well as standard teaching for managing such patients. Due to these reasons, the patient was referred to surgery unit after thorough non-invasive and minimally invasive investigations and non-response to all possible empirical treatment. As observed above, the patient was not immediately operated but was re-investigated by surgery team and repeat contrast enhanced computed tomography of abdomen was performed alongwith various blood investigations. The repeat CT also suggested presence of small bowel strictures along with a possibility of peri-cecal hernia (a type of internal hernia which requires laparotomy for confirmation as well as treatment). At that point of time, the treating team at PGIMER was faced with a young patient having a rare undiagnosed chronic small bowel 8 years duration causing severe debilitative obstruction of symptoms with immune and nutritional depletion.

Also, the radiological investigations were suggesting small bowel strictures and peri-cecal hernia. The standard medical teaching and care in such cases was exploratory laparotomy (surgery) with the following objectives i.e. Confirm presence of strictures and site of strictures; Resect strictures if technically possible with dual purpose of obtaining tissue for histological diagnosis and at same time achieve relief of obstruction to allow resumption of oral feeding and Surgical treatment of internal hernia if confirmed on surgery. Due to these reasons, the patient was referred to surgery unit, after thorough medical investigations.

23.           It has come into evidence that the attending doctors thought thrice before going for surgery. Lastly, the patient was re-investigated by surgery team and repeat contrast enhanced computed tomography of abdomen was performed alongwith various blood investigations. Even the repeat CT also suggested presence of small bowel strictures along with a possibility of peri-cecal hernia (a type of internal hernia which requires laparotomy for confirmation as well as treatment).

                   Decision to conduct surgery:- A doctor is a general of war against a disease. He has to take decision in the circumstances of the case in his hand. Such decisions are made to save the life and welfare of the patient, albeit, a doctor has no interest or intention adverse to the patient. Sometimes, such decision may not be correct, and would not mean that the decision taken surgeon is guilty of negligence. Our view has been fortified by the pronouncement of Hon’ble Supreme Court of India in Anjana Agnihotri and anr. Vs. The State of Haryana and anr., Criminal Appeal No.770 of 2000, decided on 06.02.2020, wherein, it has been observed as under:-

“Medical professionals deal with patients and they are expected to take the best decisions in the circumstances of the case. Sometimes, the decision may not be correct, and that would not mean that the medical professional is guilty of criminal negligence. Such a medical profession may be liable to pay damages but unless negligence of a high order is shown the medical professionals should not be dragged into criminal proceedings”.

 

24.           In this case, decision of the doctors to conduct surgery cannot be taken as a negligence or careless step, rather, it was done for the proper diagnose and treatment with the objects as stated in written reply and reproduced above. All the doctors were having sufficient medical qualifications and experiences. They follow the practice prevalent in the PGIMER, in such cases.  

Even after surgery which was conducted in PGIMER on 30.04.2018, the patient was operated in Sir Ganga Ram Hospital, New Delhi for revised surgery which was performed on 21.05.2018 vide which both the ends of intestine i.e. one of small intestine and the other one of large intestine were taken out in the form of two openings in the abdominal wall. The fecal matter and small intestine contents were continuously pouring out of these two openings in two separate bags. Had there been any leakage of the intestines or the operated part, then the patient would not have survived upto 30.06.2018 i.e. after two months of the operation/surgery conducted by the opposite parties.

25.           After going through the entire material available on the record, this Commission is of the considered opinion that conduct of surgery upon the patient was essential for the proper diagnosis and treatment and none of the opposite parties were negligent or careless with regard to conducting surgery and to take decision to perform surgery. All the attending doctors of the PGIMER exercised a reasonable degree of skill and knowledge and a reasonable degree of care and they all were well qualified in their stream. They took the decision of surgery after going through the entire record and facts and circumstances of the case.  In these circumstances, the sad demise of the young patient does not itself establish negligence. The Hon’ble Supreme Court in Martin D’Souza Vs. Mohd. Ishfaq, (2009) 3 Supreme Court Case (Civ) 735 in para no.112 as under:-

“It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.”

 

26.           So far as expert opinion by way of affidavit dated 22.01.2019 of Dr.J.P. Sethi is concerned, it may be stated here that the same is not acceptable because, admittedly, Dr.J.P. Sethi is neither a General Surgeon nor a specialized Surgical Gastroenterologist nor a specialist in internal medicines. Although he remained in Government service yet he failed to establish the field of his working. His opinion is not supported by any cogent evidence.
27.           However, the precedents relied upon by the complainants are distinguishable on facts. In Joginder Singh’s case (supra), the patient has poor tolerance to the anesthesia but second surgery was performed within eight days of the first surgery inspite of fact that there no emergency existed and there was no imminent threat to the life of patient.  The National Commission observed that the surgery could have been postponed till the patient could have recovered fully from the first surgery. Apart from it, the consent was not taken properly and the patient died due to cardiac arrest at the time of surgery but no cardiologist was present before start of the high risk surgery.

In Ayesha Begum’s case (supra), it was diagnosed that the patient was suffering from breast cancer and malignance alleged to be defective. Apart from it, radiotherapy was given for 36 hours on the wrong diagnosis. But in the case in hand the past history of four hospitals i.e Rajasthan Medical Centre,Tohana; Amar Hospital, Patiala; Dayanand Medical College and Hospital, Ludhiana and All India Institute of Medial Sciences (AIIMS)New Delhi, transpired that the disease could not be cured and there was no proper diagnosis except by way of surgery.

                   LK Indnani (Dr.) case (supra), was also case of wrong diagnosis and lack of proper care and caution, and pre and post operation. In that case, the deceased lady aged 73 years was suffering from unstable angina and hypothyroidism. There was failure of heart due to wrong treatment.

In Bombay Hospital and Medical Research Centre’s case (supra) the Senior Resident Doctor (Radiologist) failed to study and interpret correctly the report of MRI and scan images, which was presented to him by his junior staff but this situation is not available in the case in hand.

In Dr. Sagnik Roy’s case supra, the junior doctors were engaged by the nursing home without making proper arrangement to guide them in rendering proper treatment but this situation is not available in the case in hand. However, in the present case, the complainant has failed to prove that the opposite parties were negligent or they failed to perform their duties with due care.

28.           For the reasons recorded above, we are of the considered opinion that this complaint is devoid of merit and as such the same deserves dismissal. Consequently, this complaint is hereby dismissed with no order as to costs.
29.           Certified copies of this order be sent to the parties, free of charge.
30.           The file be consigned to Record Room, after completion.

Pronounced

04.03.2020

Sd/-

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

 MEMBER

 Rg.