STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1]      Jug Jeevan Pal s/o Late Sh.Amar Nath, aged about 39 years,

2]      Chander Mohan S/o Late Sh.Amar Nath, aged about 38 years,

          Both residents of House NO.4810/3, Chowk Ghandan, Near Pipli Bazar, Ambala City, Haryana.

……Appellants/Complainants

V e r s u s

1]      Post Graduate Institute of Medical Education and Research (P.G.I.M.E.R., Chandigarh) Sector 12, Chandigarh through its Director.

2]      Director, P.G.I.M.E.R., Chandigarh, Sector 12, Chandigarh.

              ....Respondents/OPs.

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by:  Sh. Deepak Aggarwal, adv. for the appellants

                   Sh. Rajesh Garg, Adv. for the respondents

PER  NEENA SANDHU, MEMBER

                   This appeal is directed against the order dated 7.7.2011, rendered by the learned District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it dismissed the complaint filed by the appellants/complainants.

2.                      The facts of the complaint, in brief, are that the mother of the complainants was suffering from jaundice and was admitted to the Post Graduate Institute of Medical Education and Research, Chandigarh (PGIMER) for treatment on 01.07.2007. The opposite parties diagnosed the cause of jaundice to be blockade and resultantly a 10 cm. Straight biliary stent was placed inside the patient. A biopsy sample was taken during the process of ERCP on 2.7.2007.  The patient was discharged from the hospital on 6.7.2007 and was advised to follow-up after seven (07) days on Tuesday in GE-OPD i.e. 17^th July, 2007 as per schedule. Her general condition was conscious/oriented at the time of discharge.   She was brought to PGIMER for a CT Scan abdomen on 7.7.2007, report of which was provided at a later date.  It was stated that the continuation of hospitalization of the patient was most essential on 6.7.2007, till reports of CT Scan and biopsy were received, for final decision of treatment and, in fact, she should have been operated upon immediately, but the opposite parties discharged her on 6.7.2007.       It was further stated that the condition of the patient deteriorated and the complainants took her to the PGIMER on 17.7.2007 in the OPD for check-up where various tests were prescribed by the doctors, which were done on the same day.  Antibiotics were also advised to the patient and she was advised to visit again in case of emergency. As the condition of the patient did not improve, the complainants again rushed her to the emergency of the PGIMER on 28.7.2007.  It was stated that though the patient was crying with acute abdominal pain, but the doctors refused to admit her.  Later on, an Ultra sound was advised, report of which showed blockade in the stent deployed earlier.  It was further stated that HCV test was conducted twice by which once the patient was declared HCV (-ve) but later on as HCV (+ve).  She was later on shifted to the Gastroenterology Ward.  On 29.7.2007 the opposite parties planned to place a drain to remove the infection of the patient.  On 30.7.2007 again the HCV test was done which declared the patient HCV (-ve).  On 30.7.2007 another stent was deployed besides the old blocked stent, which, according to the complainant, was major negligence on the part of the opposite parties.  It was further stated that the patient was treated with high doses of antibiotics due to which, on 1.8.2007 the initial problem of respiration arose.  It was further stated that Dr.Viney wrongfully executed the ABG test by taking blood samples from veins instead of arteries.  Thereafter, the condition of the patient worsened and she was put on excessive Oxygen.  As per the complainant, the doctors were unable to decide the quantity of Oxygen i.e. whether 100% pure or 31% pure.  It was further stated that the report of the ultrasound done on 3.8.2007 showed partial blockade in the new stent deployed on 30.7.2007.  In the early morning of 5.8.2007, at about 3:00 a.m., acute respiration failure stage developed.  The complainants requested the doctor, on duty, who kept on sleeping in spite of repeated requests.  Even the x-ray technician conducted the x-ray after a gap of five hours.    It was further stated that as the patient’s condition was very critical, the doctor advised for placement of Central Line, in the patient. The complainants gave consent for Central Line to Dr. Suraj but the same was placed by Dr. Viney and, as soon as, the Central line was placed, there was acute blood loss and large swelling on the neck of the patient due to which three bags of plasma had to be injected.  It was further stated that when the Senior doctors reached the ward, they realized that the Central line had been wrongly executed and there was no chance of survival of the patient.  The treating team told that the process of manual ventilation would also not be helpful to save the life of the patient and, therefore, the complainants took the patient home, against medical advice. The patient, ultimately, died on the way before she reached home.   It was further stated that no record regarding the supply of stents was maintained by the PGIMER.  It was further stated that the aforesaid acts of the doctors of the PGIMER amounted to medical negligence and deficiency, in rendering service.  Hence a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                      The opposite parties, in their written reply, took up the preliminary objection that as per the opinion of the Committee of doctors, constituted by the Govt. Medical College and Hospital, Chandigarh, they should not have been summoned, in terms of the judgment of the Hon’ble Apex Court in case of Martin F. D’Souza.  It was stated that the deceased was an elderly lady, with tumor causing biliary obstruction and had suffered two episodes of severe cholangitis. An effective initial management with endoscopic stent placement and antibiotics therapy was promptly done on the patient.  It was further stated that when the patient was discharged from Gastroenterology Department, she was referred to Surgery Department and the written as well as verbal instructions, given to her relatives, were not complied with for a period of three weeks i.e. from 7.7.2007 to 28.7.2007, due to which the condition of the patient worsened.  It was further stated that standard medical care was provided, to the patient, with a thorough professional approach, within the parameters of existing expertise and infrastructure, but the relatives of the deceased did not comply with the instructions, and did not consent to life saving measures such as intubation.  The attendants took the patient from the hospital, against medical advice. The factum with regard to admission and treatment of the patient was admitted, but it was stated that that though the patient was referred to Surgical Services, the family of the patient, did not bring her there on the appointed date.  It was further stated that in view of the serious medical condition of the patient, the opposite parties had even obtained an out of turn C.T. appointment on 7.7.2007 itself.  It was further stated that the Biopsy Report showed adenoma and dysplasia as the cause of obstruction.  It was further stated that the relatives of the patient did not bring her to the ward the same evening with fresh investigation report and the patient was not brought to G.E. Unit-I OPD/Surgery OPD from 18.7.2007 to 28.7.2007.  It was further stated that all the claims of harassment by the treating doctors, were wholly and absolutely incorrect.  The patient was admitted on priority in the G.E.Ward, and it were the attendants of the patient, who did not comply with the instructions, issued by the doctors, from time to time. It was further stated that the patient had features of cholangitis at the time of admission on 28.7.2007, which could have been avoided had her relatives consulted surgical services at any time after her discharge on 6.7.2007 and readmission on 28.7.2007.   It was denied that the treatment for HCV was given to the patient. It was further stated that the doctors of Radiology Diagnosis Department assessed the patient and found that biliary duct was mildly dilated but was not amenable for placement of percutaneous drain.  She was sent to the Radiology Department to assess amenability of PTBD as she was unfit for ERCP at that time.  As the patient had partially stabilized by the next morning, an endoscopic stent was successfully placed in her, despite her poor medical condition.  The patient was sick when she was taken for procedure and the stent was placed besides the other stent, in order to facilitate additional drainage.  It was further stated that the ‘procedure time’ had to be as short as possible as the patient was not in a condition to tolerate prolonged procedure, hence the first stent was not removed.  Also it would have continued to provide path for placing a new stent and removal would have resulted in loss of any access to the biliary tree in a patient where precut sphincteromy had been done.  It was denied that any problem of respiration was caused to the patient due to high doses of antibiotics.  It was further stated that the blood samples were taken from the patient for carrying out tests, as per standard practice, which were needed to monitor and tailor the therapy of the patient.  It was denied that the doctors of the opposite parties behaved rudely with the attendants of the patient.  It was further stated that the question of continuation of high doses of antibiotics, causing the death of the patient, was irrelevant as all doses administered to the patient were standard doses, as per published guidelines.  Further the administration of “pure” oxygen resulting into the  death of the patient was untenable since the arterial blood gas reports showed PO₂ ranging from 26-98 mm range, none of which indicated hyperoxia.  It was submitted that the Central Line is placed in a critically ill patient to assess fluid requirement by monitoring of central venous pressure to administer medicines etc. and that Dr. Vinay was competent and empowered to do the Central Line Process.  It was further stated that the consent of the family of the patient was taken to conduct the procedure and it was not required to be specified as to who would do the procedure.  It was further stated that all the Senior Doctors evaluated the patient at different times, depending on the need of the situation, and all difficult endoscopic procedures were done, by the senior doctors themselves. The whole treating team worked in constant communication with each other.  It was further stated that during the second time of admission, though the patient remained in the ward for a sufficient time, but she was very sick, serious and unfit for definitive surgery.   It was further stated that the attendants of the patient failed to cooperate and rather did not comply with the instructions, refused life saving medications/interventions and left the hospital against medical advice and, thus, denying care for the patient.  It was denied that the doctors told that manual ventilation would not prove helpful.  Rather it was stated that the doctors had planned endotracheal intubation, which was not consented to by the family of the patient.  It was further stated that the family of the patient took her against medical advice, without even giving LAMA consent, on 5.8.2007.   It was further stated that all the medicines and procedures, provided to the patient, were of standard nature, and there was no negligence of any doctor.  The remaining averments, were denied, being wrong.  Pleading that there was no medical negligence, on their part, prayer for dismissal of the complaint was made.

4.                      The parties led evidence, in support of their case. 

5.                      After hearing the Counsel for the parties, and, on going through the evidence and record, the learned District Forum dismissed the complaint.

6.                      Feeling aggrieved, the instant appeal, has been filed, by the appellants/complainants.

7.                      We have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 

8.                      The learned Counsel for the appellants/complainants argued that the mother of the complainants was admitted in the PGIMER on 1.7.2007 as she was suffering from jaundice. The opposite parties diagnosed the cause of jaundice to be blockade and placed a 10 cm. straight biliary stent inside her body.  A biopsy sample was taken during the process of ERCP on 2.7.2007.  She was discharged on 6.7.2007 and was advised to follow-up after seven days.   On 7.7.2007 the patient was again brought to the PGIMER for CT scan.  It was submitted that continuation of hospitalization of the patient was most essential on 6.7.2007 till reports of CT Scan and biopsy were received.  It was further submitted that the patient should have been operated upon immediately but, instead, the opposite parties discharged her on 6.7.2007, in haste, with the result that her condition deteriorated and she was again taken to the PGIMER on 17.7.2007 for check up.  It was further submitted that after examination of reports of CT Scan and biopsy, as per Dr. Usha Dutta, surgery was the best option to treat the patient but the opposite parties failed to do so and asked the patient to come to the PGIMER in case of any emergency.  Thereafter, the condition of the patient worsened and she was taken to the PGIMER on 28.7.2007 but the doctors of the opposite parties refused to admit her.  Later on, an ultrasound was done which showed blockade of stent deployed earlier as well as hepatitis-C i.e. HCV (+v).  On 29.7.2007 the opposite parties planned to place a drain to remove the infection of the patient and on 30.7.2007 another stent was deployed without removing the old blocked stent.  On 5.8.2007 the condition of the mother of the complainants worsened due to acute respiratory failure, and the doctors advised for the placement of Central Line in the patient for which consent was given to Dr. Suraj, but the same was placed by Dr. Viney.  After the Central Line was placed there was acute blood loss and large swelling on the neck of the patient due to which three bags of plasma had to be injected.  It was further submitted that, therefore, from all these sequence of events, it was very clear that the condition of the mother of the complainants further deteriorated and this all happened due to the casual act of the treating doctors, which amounted to medical negligence. 

9.                      In rebuttal, the Counsel for the respondents/opposite parties, submitted that as per the expert opinion, sought by the District Forum, there was no negligence, on the part of the treating doctors, as they treated the mother of the complainants after thoroughly examining her and all the tests/investigations were done as per the standard medical ethics. 

10.                  In support of their submissions, the Counsel for the parties relied upon a catena of judgments, copies whereof are placed on record. The law while dealing with the cases of medical negligence, is now well settled.  Recently, the Hon’ble Apex Court, while dealing with one of such cases of medical negligence reported as Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors.- I (2010) CPJ 29 (SC), after going through the evidence and record of that case, and scrutinizing the leading cases of medical negligence, in para 94, held as under  :-

“94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:

The Hon’ble Apex Court, while dismissing the appeal, further held as under :-

“95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.

96. When we apply well settled principles enumerated in the preceding paragraphs in dealing with cases of medical negligence, the conclusion becomes irresistible that the appellants have failed to make out any case of medical negligence against the respondents.

97. The National Commission was justified in dismissing the complaint of the appellants. No interference is called for. The appeal being devoid of any merit is dismissed. In view of the peculiar facts and circumstances of this case the parties are directed to bear their own costs.”

11.                  We have to keep in view the principle of law, laid down in Kusum Sharma & Ors. case (supra) while arriving at the conclusion, as to whether, there was any medical negligence on the part of the treating doctors or not.  At the time of admission of complaint, the District Forum sought the medical opinion from the Director/Principal, Govt. Medical College and Hospital, Sector 32, Chandigarh, which is at pages 429 to 433 of its (District Forum) file. The report of the Medical Board reads as under :-

“With reference to the Endst. No.GMCH-HA1-EA2(74)-09/14299-303 dated 26 August 2009, following is the report of the constituted committee.  This report has been made after scrutinizing the record provided and after looking at the standard accepted treatment protocols.  This relates to the patient Darshana Devi and the committee has attempted to answer the queries raised by the attendants of the patient.

          Patient Darshana Devi, presented to PGIMER on 1.7.07 with obstructive jaundice, and she underwent ERCP, stenting of the CBD and biopsy from the papilla on 02.07.07.  She was discharged in stable condition after a stay of five days.  Subsequently CT Scan was done on 7.7.2007 and the report was received from the Radiology Department in the normal course of time.  The biopsy report of the sample taken during the ERCP was also received in due time.  There was no inordinate delay in this process and the procedure and follow-up is as per acceptable practices related to health care.

On 17^th July the patient presented with vomiting and intermittent fever, which was evaluated by the doctors and a decision to prescribe antibiotics and discharge the patient with advise to follow up in case of any problem was taken.  The patient stayed at home and did not report to the hospital (possibly was stable) till 28^th July, 2007 (Saturday).  She was then admitted again to the PGIMER with possibly severe infection (cholangitis) possibly related to blockage of the stent.  The patient was planned for drainage of the biliary tract and was started on higher/more potent antibiotics, which was correct and as per standard practice.  She was planned for PTBD in view of her sick condition, which was as per the record provided by the patient was fixed for the next day (Sunday).  However, the treating team subsequently opted to place another stent alongside the previous stent.  This was done successfully on 30.07.07 (Monday).  

The idea of stent placement or a drainage procedure is to have free flow of bile from the obstructed biliary passages which was successfully achieved both times.  The success of this drainage is proved by the decrease in S bilirubin levels as per the records.  Often the old stent is left in its original place to promote peristental flow.  It is therefore not always necessary to remove the previous stent.

The question of lowering the dose of antibiotics or giving the higher dose of antibiotics was a part of the discussion between the treating team.  The committee is of the opinion that higher dose of antibiotics were required for the serious nature of the patient condition.  This decision of the treating doctor was appropriate.

The role of higher flow of oxygen to be given to the patient was also possibly correct at that time.  The discussion on different percentages of oxygen between the doctors was academic and did not apparently influence the overall outcome.

Another complaint of the patient’s relative is regarding frequent sampling but in a sick patient one has to sample many times in a day.  Frequent investigations are often necessary in seriously ill patients and are a part of the management.  The attendants have alleged that incorrect sampling was done but a review of the patient record does not support this contention.

……… as the patient’s condition deteriorated there was a need to put in central line which can be difficult in a sick patient.  The insertion of central venous line was apparently as per standard protocols in a sick patient and was correct in this patient.  The patient possibly had a local complication related to insertion of this line but even this complication was adequately managed with local compression and infusion of plasma.  The treating team of doctors also made necessary requests for seeking ventilatory support and informing the patients relatives of the risk/benefits of this modality which was also appropriate.”    

12.                  After minutely going through the record, produced by the parties, and the expert opinion of the Board of doctors, received from the Govt. Medical College and Hospital, Sector 32, Chandigarh, and the law laid down by the Hon’ble Apex Court in the Kusum Sharma & Ors. case (supra), we are of the considered opinion that the complainants failed to establish that the doctors of the respondents/opposite parties did not exercise a reasonable degree of skill and care or that their conduct fell below that of a reasonably competent practitioner while treating their (complainants’) mother.  There may be two or more than two lines of treatment available for treating a patient, but, it is for the treating doctors, to decide in their wisdom, guided by the condition of the patient, and other related medical factors, as to which line of treatment was required to be adopted, keeping in view the overall well being of the patient.   Simply, because the doctor chose one course of action, in preference to the other, it cannot be said that the treating doctors gave wrong treatment.   Mere deviation from normal professional practice, cannot necessarily be the evidence of negligence.  Which course is more appropriate to follow, depends on the facts and circumstances of a given case. So long as the procedure adopted is acceptable to medical science, the medical practitioner, cannot be held negligent merely because he chose to follow one procedure and not another. The line of treatment was not required to be decided, as per the wishes of the patient or her attendants.  Therefore, taking into consideration, the report of the Medical Board and other related factors, we are of the considered opinion that no case of medical negligence is made out, against the respondents/opposite parties and the treating doctors in treating the patient.  The order passed by the District Forum, to this extent, does not need any interference.

13.                  The next submission of the Counsel for the appellants was that only a short affidavit of Dr. Rakesh Kochhar, Professor in the Department of Gastroenterology, PGIMER, Sector 12, Chandigarh was filed by the opposite parties, alongwith reply, and the same could not be considered.  However, we do not find any substance, in the submission of the Counsel, because from the detailed record, furnished by the opposite parties, it was clearly established that there was no medical negligence, qua them. Once, from the record, it was proved that there was no medical negligence, on the part of the opposite parties, then, we are of the view, that it is immaterial whether detailed affidavit had been filed or not.  Moreover, it is settled law, that case should be decided, on merits, on the basis of entire record, than by resorting to the technicalities.

14.                  The next submission of the Counsel for the appellants was that the stent inserted by the doctors, got blocked within one month, after its insertion, whereas the medical literature suggests that its life is about six months, and, as such, the stent inserted inside the body of the patient was of sub-standard quality.  Moreover, no record has been maintained by the opposite parties regarding the same.  On the other hand, it was submitted by the learned Counsel for the respondents/opposite parties that the stent inserted in the body of the complainants’ mother was of standard quality and, as per medical literature, a stent can last from a few weeks to a few months.  However, this fact has been fairly admitted by the respondents/opposite parties, while answering questions No.6, 9 & 10 of the questionnaire, submitted by the complainants, at page 577 of the District Forum file, that no record had been maintained by them, with regard to the purchase and supply of stents. Had the record been properly maintained, by the opposite parties, then the doubt of the complainants, that a sub-standard stent had been implanted, in the body of their mother, would have been cleared, by showing the date of purchase, the date of expiry of the same, the number(s) thereof, the name of the Company/Companies, from which the same were purchased, the date of manufacturing of the same, the quality of the same and the date of issue of the same. But, in the absence of the relevant record, the same could not be ascertained. Due to this act of the opposite parties, the complainants were forced to entertain a lingering doubt, in their mind, that the stent, implanted in the body of their mother, was defective, and sub-standard, which caused a lot of misery to the complainants.

15.                  The PGIMER is a premier Medical Institute of Northern India. Hundred and thousands of officers/officials must be working in the said Institute, whose duty is to maintain the record of purchases of medicines, medical instruments, accessories, stents etc., in the due discharge of their official duties, for which they are handsomely paid from the exchequer.  There must be a number of supervisory officers, for keeping supervision over their day-to-day discharge of official duties.  If the officers/officials of the Purchase Section(s) were not discharging their duties, in a proper manner, then the supervisory officers were required to initiate action against them and ensure that records, aforesaid, were maintained, strictly, in accordance with the relevant Rules and instructions.  We are completely dismayed and disappointed, on going through the answers given to the questionnaire by Dr. Rakesh Kochhar that there was complete lack of supervision, on the part of the respondents/opposite parties, on their staff resulting into causing a lot of harassment and mental agony to the patients and their attendants.  There is nothing, on record, to reveal that any action was taken against the recalcitrant officers/officials, for the palpable negligence, in the performance of their official duties, in not maintaining the record aforesaid.  A lot of mental agony and physical harassment had to be undergone, by the patient and her attendants on account of the acts of omission and commission of the respondents and their officers/officials. The respondents were, thus, grossly deficient, in rendering service, on this count. 

16.                  As we have already come to the conclusion, that this is not a case of medical negligence and, therefore, we do not find any ambiguity in the order, passed by the District Forum, and the same is liable to be upheld to this extent.

17.                  However, at the same time, it cannot be lost sight of that the opposite parties were deficient, in rendering service, as they failed to maintain the record, referred to, in paragraph 15 above, for which they are required to compensate the complainants/appellants. 

18.                  In view of the above discussion, we partly accept the appeal. The order impugned of the District Forum, is modified to extent referred above.  The opposite parties are directed as under:-

i)             To pay a sum of Rs.2,00,000/- as compensation on account of the mental agony and physical harassment suffered by the complainants as indicated in paragraph 15 above.

ii)           To pay a sum of Rs.50,000/- as costs of litigation.

iii)         The respondents/opposite parties shall, however, be at liberty to recover the amount of compensation/costs and interest from the officers/officials found at fault, after resorting to the due procedure provided by the relevant Rules/Regulations/Instructions. They shall also ensure that the records aforesaid, in future, are properly maintained.

This order be complied with, by the opposite parties, within thirty days, from the receipt of its certified copy, failing which they shall be liable to pay the aforesaid payable amount, with interest @ 12% per annum from the date of complaint, till actual payment, to the complainants/appellants, besides costs.

                   Copies of this order be sent to the parties free of charge.

Pronounced.

14.05.2012.

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

hg