STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. | : | 26 of 2011 | Date of Institution | : | 15.4.2011 | Date of Decision | | 01.10.2012 |
- Namrata Kataria W/o Late Sh. Naresh Kataria;
- Aastha Kataria (Minor Daughter of Late Sh. Naresh Kataria);
- Kunwar Kataria (Minor Son of Late Sh. Naresh Kataria);
(Complainants No.2 and 3 represented through their mother i.e. Complainant No.1); All Complainants No.1, 2 and 3 are resident of 79, Green Model Town, Jalandhar, Punjab. ……Complainants. (VERSUS) Post Graduate Institute of Medical Education and Research, Sector – 12, Chandigarh through its Director. .... Opposite Party. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER Argued by:Sh. Sarju Puri, Advocate for the complainants. Sh. Rajesh Garg and Ms. Namrta Shergil, Advocates for the Opposite Party. PER MRS. NEENA SANDHU, MEMBER ICE SHAM SUNDER, PRE The facts, in brief, are that Complainant No.1 is the wife and Complainants No.2 and 3 are the minor children (represented through their mother complainant no.1) of deceased late Shri Naresh Kataria son of Shri Charanjit Kataria. According to the complainants, on 04.06.2008, Sh. Naresh Kataria (since deceased) along with two other co-passengers hired a "Toyata Qualis" taxi from Khanna District Ludhiana, Punjab, for going to his office at Chandigarh via Rajpura. It was stated that on 04.06.2008, at about 8:30 A.M, when the taxi reached about two kilometers behind Rajpura, it met with an accident and out of the three passengers, one died at the spot and the remaining two were seriously injured. It was further stated that FIR was lodged with Rajpura Police Station and Shri Naresh Kataria was taken to Govt. Hospital Sector 32, Chandigarh, wherefrom, he was shifted and got admitted in emergency ward of the Opposite Party i.e. Post Graduate Institute of Medical Education and Research at Chandigarh (for short hereinafter to be referred as PGIMER), at about 12.30 noon, on the same day vide admission Card No.481627. It was further stated that, at the time of admission of Naresh Kataria, he was having visible facial injuries. He was also complaining of acute pain in the abdomen and having breathing problem. In the admission card, the condition of the patient, at the time of admission was recorded. It was further stated that after giving first aid to the patient, Ultra-Sonography of his abdomen was conducted on the evening of 4.6.2008. As per the report (Annexure A-2) of Ultra-Sonography, there was extensive surgical Emphysema i.e. Air under the skin over right side of abdomen and Epigastrium (which means part of abdomen over stomach). It further recorded in the report thatthe liver, Gall Bladder, Pancreas, Kidneys were OBSECURED and the Spleen and left kidney appeared grossly normal. The urinary Bladder was found distended (i.e. inflated) and no free fluid was seen in pelvis (i.e. lower part of abdomen). It was further stated that the attending Doctors at the Emergency ward, told the Complainants that the patient had got no serious injuries and would be discharged on the next day i.e. 5.6.2008. It was further stated that on the evening of 4.6.2008, the patient started complaining of acute pain, in theabdomen, and felt difficulty in respiration, which was immediately brought to the notice of the doctor in-charge of the Emergency ward of the Opposite Party hospital. It was further stated that the attending doctors did not pay any attention and continued to state that there was nothing to worry about as there was no serious injury on the person of the patient. They gave some sedative and pain killers (analgesics) which made the patient asleep throughout the night of 4.6.2008. It was further stated that on the next day i.e. on 5.6.2008 the abdomen of the patient distended, as it inflated seriously, and his respiration started to become labored, which was immediately brought to the notice of the doctors, on duty. It was further stated that on 5.6.2008, when the patient became restless due to acute pain and the same became unbearable, at 9.30 A.M. an urgent call was sent to Prof. G. Singh, a Specialist Professor to examine him and for further treatment but, surprisingly despite receiving the distress and emergency call at 9.30 A.M., the said specialist Doctor came at 4.00 P.M. It was further stated that Prof. G. Singhexamined the patient and after examining the test reports, recorded in his note (Annexure A-3) as under:- "Road side accident on 04.06.2008 at 8 AM was traveling in a 4 wheeler (Qualis) the four wheeler overturned. Complainants of respiratory difficulty in right + sided chest. Drain in Situ from GMCH (Govt. Med. Coil. Hospital) Evaluation in ESOPD (Emergency Services OPD) Call received on 5.6.08 at 9.30 A.M. from ESOPD. Reported to have air under diaphragm OlE (On Examination) Sedated B/P : 80/60 Pulse: 130 /Min B/L (Bilateral) Air entry No Hematuria +(meaning Blood in urine) On Single inotope Per abdomen distended (meaning inflated) Guarding + (meaning pain in any part of the body when pressed) Rigidity +. Right lung contusion + (meaning: Breaking upof tissues) Plan ICU C/C Pulmonary Medicine (Lung Medicine) CTVS (Cardio Thoracic Vascular Surgeon) to review Titrate lnotropes (B/P Medicine) Monitor Vitals Lung Protective Ventilation Prepare for surgery Check CVP (Central Venous Pressure) Urine Output Abdominal Girth” 2. It was further stated that Dr. Prof. G. Singh called the attending doctor, in the emergency ward, and told him that he had already delayed in giving proper treatment, to the patient. He also told him that the operation should have been conducted on 4.6.08 itself. It was further stated that the wrong diagnosis by the doctors led to wrong treatment and further inordinate delay in conducting the operation, was prima-facie evident, from the medical records of the patient. It was further stated that on 4.6.08, the USG report clearly showed that there was air under the skin and the X-ray report revealed air under the diaphragm. It was further stated that the USG further revealed that the Lever, gallbladder, pancreas, Rt. kidneys were obscured which meant that the same were not clearly visible. 3. It was further stated that, as per the established medical practice in the aforesaid circumstances, especially in case of an accident, victim who was complaining of acute pain in the abdomen should have been immediately sent for further examination to find out the cause of air under the skin/diaphragm and acute pain in the abdomen and such patients require immediate attention and further examination, which could detect the cause of pain especially when the organs of abdomen were obscured on USG examination. 4. It was further stated that despite the· aforesaid condition, instead of taking immediate steps, and diagnosing the problem, followed with proper treatment, and therapy, the doctors in the emergency OPD chose to sedate the patient and gave him pain killers without providing any other emergency treatment or at least calling a specialist doctor to examine the patient. It was further stated that the said specialist doctor Prof. Singh further directed for immediate intubations and for putting the patient on ventilation. It was further stated that although Prof. G. Singh attended the patient after 6 ½ hours of receiving the call from ESOPD, there was already a delay of about 32 hrs in providing the basic and immediate treatment to him. 5. It was further stated that the ventilator of the hospital was defective and the patient could not be ventilated despite categorical direction by the specialist Doctor and rather, as an alternative, complainant No.1 and her family members were given a manual pump & were asked to provide manual ventilation to the patient, by which time, his condition deteriorated to the extent that he started becoming unconscious. It was further stated that as per the advice of the doctor the patient was intubated and a huge quantity of blood started coming out of the tubes, which were inserted in the abdomen of the patient. It was further stated that there was heavy internal bleeding, in the abdominal area of the patient, which obviously happened after the accident, which was neither diagnosed nor treated by the attending doctors of the Opposite Party, till the time Prof. Singh examined the patient after 32 hrs of the incident, and diagnosed that there were internal injuries in the abdomen, which needed immediate surgery. It was further stated that at about 8.30 PM, when the patient was almost dead, which was apparent from his Pre Anesthetic record (Annexure A-4), he was removed to the operation theatre for operation 6. It was further stated that the patient was taken to the operation theatre on 5.6.08, when he was almost dead and never regained consciousness during/afterthe operation and ultimately died on 16.6.08 at 2.20 A.M. due to medical negligence on the part of the attending doctors of the Opposite Party. It was further stated that the Opposite Party further while issuing the death summary mentioned the date of death as 15.6.2008 instead of 16.6.2008, which further reflected the callous and negligent attitude of the opposite party hospital. It was further stated that in order to get the above discrepancy rectified, complainant No.1, and her family members had to run from pillar to post and finally on 23.7.2008, the opposite party hospital issued a certificate (Annexure A-5) correcting the date of death of the patient.It was further stated that after correcting the date of death, the Complainant had to approach various authorities, to correct the date of death in the post mortem report, as well as death certificate of the deceased issued by the Registrar of Birth and Deaths. 7. It was further stated that as per some treatment papers obtained by the complainants, from the Opposite Party Hospital, such as "Report of Operation" dated 5.6.08 (Annexure A-6), the condition of the patient was very serious after the accident. It was further stated that the doctors of the Opposite Party casually and negligently attended the patient, in the emergency ward, and treated it as a case simple injuries and provided no treatment except giving some pain killer and sedative and kept the patient uncared and unattended for more than 31 hours by which time the patient was literally pushed by the doctors attending on him to the clutches of death. 8. It was further stated that taking a patient inside the operation theatre with such vitals, as recorded in the Pre Anesthetist Record only suggested that the Opposite Party hospital had infact decided to conduct the operation on an almost a dead person. It was further stated that even in the death information given by the hospital authorities to the police, the cause of death was mentioned as "Blunt trauma abdomen with hepatic flexure of colon perforation with blunt trauma chest & sepsis." It was further stated that because of the negligent act on the part of the Opposite Party hospital, sepsis developed in the blood of the patient. It was further stated that because of failure, on the part of the Opposite Party hospital, in controlling and treating the same timely it spread all over the entire body of the patient and, ultimately, caused his death. It was further stated that the deceased who was otherwise leading a normal life and being a mechanical engineer, had a bright future died at the age of 32 yrs due to careless and negligent act and omission of the Opposite Party hospital, which was evident from the facts as mentioned supra. Lastly, stating the aforesaid acts of the Opposite Party, amounting to deficiency, in rendering service, and medical negligence, which led to the death of Sh. Naresh Kataria, the present complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed. 9. In the written statement, filed by the Opposite Party, it was admitted that the patient namely Sh. Naresh Kataria, was admitted to the Opposite Party Hospital, due to injuries, suffered during a road side accident. However, it was stated that he was given due care, his injuries were diagnosed and treated in time appropriately. It was further stated that though the Opposite Party did not claim itself to be the best Medical Institute, in the Country, yet at the same time, there was no doubt about the professional acumen of highly qualified doctors, which make the running of the Institute a success. It was further stated that as per the admission card available in the medical record, the attending doctor had noted that the patient was referred from Sector 32 Hospital (Govt. Medical College & Hospital, Sector 32, Chandigarh) but there was no referral slip or treatment record of the treatment provided at GMCH, Sector 32, Chandigarh. It was further stated that, however, it was clear that the patient received some treatment at GMCH, as he had a tune inserted in his chest, on the right side, which was draining blood stained (hemorrhagic) fluid. It was further stated that, at the time, when the patient was brought to the Opposite Party Hospital, he had no evidence of abdominal injury, rather, he had facial injury and injury to the lungs resulting in air leak from the same, which further resulted into subcutaneous emphysema. It was further stated that when a patient with multisystem trauma is seen, it is the protocol to evaluate other systems, which did not appear to be injured initially and this was also done in the case of the patient. It was further stated that ultrasound of the abdomen was performed promptly, without any delay, to detect any abdominal injury and no such injury was detected. It was further stated that the hospital record did not mention any plan to discharge the patient and in such cases, as the one of Sh. Naresh Kataria, the injuries could manifest late and it was the policy of the Opposite Party Hospital, that such patients were kept under observation for at least 48 hours before discharge. It was further stated that the patient was also having lung injury and was only to be discharged after clearance from the cardiothoracic surgeon. It was further stated that during this period, the patient underwent a CT Scan of the head and was seen by a neurosurgeon, who cleared him after examining the CT head. It was further stated that as per the hospital record, the patient complained of mild pain abdomen at 9 p.m. at 04.06.2008 and a repeat ultrasound was performed after about 10 hours, to see, if any abdominal injury had manifested during this time and even this ultrasound examination did not reveal any abdominal injury. It was further stated that the doctors, on duty, were aware of the clinical condition of the patient admitted, as they were constantly monitored by a team of highly qualified medical and para-medical staff. It was further stated that as per the patient record, the patient was attended throughout the day on 04.06.2008. He was attended to on arrival and subsequently seen by the neurosurgeon, the plastic surgeon and the general surgeon. It was further stated that the patient also underwent a CT scan of the head, Ultrasound of the abdomen twice, X-rays of the chest and abdomen and was reviewed from time to time. It was further stated that on 05.06.2008, the patient was again seen in the morning as he complained of pain. A fresh set of X-rays were ordered and he was also seen by the cardiothoracic surgeons on 05.06.2008. It was further stated that all patients coming to the Surgical Emergency were under the care of a qualified team of doctors, who seek help from specialists/senior consultants, from time to time, as and when need arises. It was further stated that in case of general surgery, the Senior Resident doctor posted in the Emergency was a qualified surgeon (who had done his MS in Surgery) and he looked after the patients on behalf of the General Surgical consultants, as he was capable of taking decision to operate and to provide the pre and post operative care to the patients. It was further stated that this was also the case of the patient. Therefore, it was specifically denied that the patient was not seen by Dr. G. Singh until 4:00 p.m. on 05.06.2008 and proper care was not given to him or the decision to operate was not made. The contents of Para No.22 of the complaint were specifically denied, stating that no such information was ever given by Professor G. Singh to any of the attending doctors. It was further denied that a wrong diagnosis was made in the case. 10. As regards the allegation that the patient had air under the skin and should have been investigated to find out the cause of that, the Opposite Party stated that the cause of air, under the skin was lung injury and not abdominal injury, which was diagnosed at GMCH, Sector 32, Chandigarh and a chest tube was inserted for treating that injury. It was further stated that the patient underwent two chest X-rays – one on arrival and the other in the next morning. It further stated that it was the second X-ray which showed air under the diaphragm and the patient was prepared for surgery thereafter. 11. It was further stated that the colonic injury due to blunt abdominal trauma was a very rare occurrence with an incidence ranging between 2% to 5%. It was further stated that these injuries frequently remain undetected or are diagnosed late despite advances. It was further stated that although many patients with gastrointestinal injury after blunt abdominal trauma, would have moderate to severe abdominal tenderness, the presence of abdominal tenderness was not a specific indicator of intra-abdominal injury that requires operative intervention. It was further stated that Laparotomy (surgery) performed based on clinical assessment alone would result in a negative exploration rate of up to 40%, with an associated morbidity (complications) of between 5% and 20%. However, the physical examination had been shown to be important, especially in combination with serial examination and observation. 12. It was further stated that the patient developed respiratory distress (difficulty in breathing) because of blood collecting in his chest, for which he was intubated to assist his respiration. It was further stated that the tubes were put in his chest, and the blood was drained, which showed that he had injury not only to his abdomen but also to his chest and even this injury became apparent only late, as the same could not be seen in two X-rays done earlier. 13. It was further stated that it was not possible for any hospital to provide for a ventilator for each patient, and this holds true for PGIMER. It was further stated that all equipment was liable to malfunction and this happened despite the best attempts to keep the equipment in proper function. It was further stated that lack of ventilator was temporary for the patient and the complainants had conveniently forgotten to mention that the patient stayed in the ICU after the operation for 10 days i.e. from 06.06.2008 to 16.06.2008, where not only, he was on ventilator but also utilized all other services of the Opposite Party Hospital, available for critically ill patients. It was categorically stated that after the surgery, the patient was kept on ventilator for respiratory support. It was denied that he did not regain consciousness after surgery. It was further stated that the patient was alive at the time of surgery as was evident from the record and remained alive up to 16.06.2008. 14. It was admitted that there was an error in recording the date of death of the patient, which was subsequently corrected. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor there was any medical negligence on its part, as also on the part of the attending doctors. The remaining allegations, were denied, being wrong. 15. The complainants, in support of their case, submitted the affidavit of complainant No.1, by way of evidence, alongwith which, a number of documents were attached. 16. Opposite Party, in support of its case, submitted the affidavit of Dr. Gurpreet Singh, Department of General Surgery, PGIMER, Chandigarh, by way of evidence, alongwith which, the original patient record of Sh. Naresh Kataria and number of documents were attached. 17. We have heard the Counsel for the complainants, as well as the Opposite Party, and, have gone through the evidence and record of the case, carefully. 18. It was submitted by the Counsel for the complainants that there was medical negligence, on the part of the Opposite Party (PGIMER) and its doctors, in treating the patient, in accordance with the medical standards/norms. He further submitted that the deceased, who was otherwise leading a normal life, and being a mechanical engineer, had a bright future, died at the age of 32 years and left behind the complainants, who are wife and minor children. He further submitted that on 04.06.008, the attending Doctors in the Emergency ward, at the time of admission of the patient, told the Complainants that he (patient) had got no serious injuries and would be discharged on the next day i.e. 5.6.2008. He further submitted that on the evening of 4.6.2008, the patient started complaining of acute pain in theabdomen and felt difficulty in respiration, but the attending doctors did not pay any attention and gave some sedative and pain killers. He further submitted that on 5.6.2008, the abdomen of the patient distended as it inflated seriously and his respiration started to become labored. He further submitted that it was the second X-ray done on 05.06.2008, in which the doctors diagnosed that there was air under the diaphragm, which they failed to diagnose initially. He further submitted that the basic principle to treat an accident victim in the emergency ward, required minute to minute observation but in the instant case, the doctors treated the patient in a most casual and negligent manner and did not provide proper treatment and supportive therapy to him, which caused his death. 19. On the other hand, the Counsel for the Opposite Party while denying all these allegations, submitted that due care and caution was taken in the medical treatment of the patient, who finally succumbed to his injuries. He further submitted that the hospital record did not mention any plan to discharge the patient. He further submitted that the patient underwent a CT Scan of the head. The C.T. scan was seen by a neurosurgeon, which was normal. He further submitted that repeated ultrasounds were performed but the same did not reveal any abdominal injury. He further submitted that the patient was duly attended to, on arrival, and subsequently seen by the neurosurgeon, the plastic surgeon and the general surgeon. It was further submitted that the tests like CT scan of the head, Ultrasound of the abdomen twice, X-rays of the chest and abdomen were also reviewed from time to time. On 05.06.2008, a fresh set of X-rays was also ordered and he was also seen by the cardiothoracic surgeons on 05.06.2008. He further argued that the cause of air under the skin was lung injury and not abdominal injury, which was diagnosed at GMCH, Sector 32, Chandigarh and a chest tube was inserted for treating that injury. He further submitted that the patient underwent two chest X-rays, which showed air under the diaphragm and the patient was prepared for surgery after that. He further submitted that the patient developed respiratory distress because of blood collecting in his chest, for which he was intubated to assist his respiration and tubes were put in his chest and the blood was drained, which showed that he had injury not only to his abdomen but also to his chest, and even this injury became apparent only late as the same could not be seen in two X-rays done earlier. 20. The perusal of record, reveals that, the patient Sh. Naresh Kataria, was referred from GMCH, Sector 32, Chandigarh to the Opposite Party (PGIMER). He received some treatment at GMCH, as he had a tune inserted in his chest on the right side, which was draining blood stained (hemorrhagic) fluid. Admittedly, on 04.06.2008, the patient was admitted in the PGIMER. Immediately after giving the first aid to the patient, Ultra-sonography of the Abdomen, was conducted, in the evening itself, and, as per its report (Appendix 2), there was extensive surgical Emphysema over right side of abdomen and Epigastrium. However, liver, gallbladder, pancreas were found obscured. Further, as per Appendix 3, at page 65, the patient underwent a CT Scan of the head and was seen by a neurosurgeon, according to whom, the CT scan was normal. As nothing transpired, in the first Ultra-Sonography test, so, another Ultra-Sonography test was repeated, after about 10 hours, in order to see, if any abdominal injury had manifested, during this time. However, as per its report, which is Appendix 4, at page 66, the features were the same as before. These ultrasound examinations did not reveal any abdominal injury. Since there was no improvement, in the condition of the patient, as he was complaining of acute pain, in the abdomen, and was having breathing problem, he underwent two chest X-rays i.e. one on arrival on 04.06.2008 and the second on the next morning i.e.05.06.2008. As per the report of the first X-ray conducted on 04.06.2008, which was recorded in the duplicate OPD Card, annexed at Page 83 of the original hospital file, there was no air under diaphragm. However, it was the second X-ray conducted on 05.06.2008, in the morning, which showed air under the diaphragm. It was for the first time that on 05.06.2008, it came to the notice of the treating doctor (Senior Resident), that there was air under the diaphragm, which was duly recorded by him in his note, appended in the original hospital file of the patient, at Page 62. The patient was then referred to the General Surgical Department, as there was urgent need of laparotomy. The next document relied upon by the complainants is Annexure A3, annexed with the complaint, the original of which is at Page No.86 of the original Hospital file. From this document, it is apparent that on 05.06.2008, Prof. G. Singh, Specialist arrived at 4 PM, and recorded that the patient was diagnosed to have air under diaphragm and right lung contusion. He directed that immediate preparation be made for operation of the patient. Thus, the operation was conducted on 05.06.2008 itself. 21. In support, the Opposite Party (PGIMER) has placed on record sufficient medical literature, which is at Appendix–6 to Appendix-10, Appendix-12 & Appendix-13. According to this medical literature, the colonic injury due to blunt abdominal trauma, was a very rare occurrence with an incidence ranging between 2% to 5% and these injuries frequently remain undetected or are diagnosed late despite advances. It is further evident from this literature that although many patients with gastrointestinal injury after blunt abdominal trauma, would have moderate to severe abdominal tenderness, the presence of abdominal tenderness was not a specific indicator of intra-abdominal injury that requires operative intervention. It is further evident from this literature that Laparotomy (surgery) performed based on clinical assessment alone would result in a negative exploration rate of up to 40%, with an associated morbidity (complications) of between 5% and 20%. However, the physical examination is shown to be important, especially in combination with serial examination and observation. On the contrary, the complainants failed to bring, on record, any medical literature, to show that the procedure followed by the treating doctors, was not as per the medical standards. 22. Thus, it is proved from the original medical record of the patient, placed on record by the Opposite Party (PGIMER) as also the medical literature on the subject, that, the patient was duly attended to, on arrival by the doctors, in the evening, and subsequently, seen by the neurosurgeon, the plastic surgeon and the general surgeon. Even the Ultra-Sonography twice, and C.T. scan were conducted. Not only this, the chest X-rays were repeated. Therefore, in view of the above, we are of the considered opinion, that, neither there was any delay in diagnosis nor any medical negligence on the part of the Opposite Party (PGIMER) or its doctors, in treating the patient, as per the established medical standards. 23. The next limb of argument, advanced by the Counsel for the complainants, was that, there was delay in performing surgery, as despite informing Dr. Prof. G. Singh, Consultant, early in the morning of 05.06.2008 at about 9:30 A.M., the said Consultant, arrived in the OPD Emergency at 4:00 p.m., the same day. On the contrary, the Opposite Party has specifically denied this allegation, and stated that the operation was done without any delay. From perusal of the affidavit of Dr. G. Singh, Department of Genreal Surgery, PGIMER, Chandigarh, tendered by the Opposite Party, alongwith its reply, it is apparent that on the morning of 05.06.2008, Dr. Prof. G. Singh was operating upon other patients, who were also as critical as Mr. Naresh Kataria, in this case. Being a Senior Consultant, it was not possible for him, to be physically present in the Emergency for 24 hours, as he had other duties to perform such as running of OPDs and performing operations, in other areas of the hospital. As such, he arrived in the OPD Emergency at 4 P.M. and immediately, after considering all the medical test reports and the physical condition of the patient, directed for immediate surgery of the patient. Being a Senior Consultant of an Institute, where a large number of patients, come for treatment for their ailments, it was not possible for him, to attend to a single patient for 24 hours. Even otherwise, there are Junior Residents/Senior Residents available in the Emergency for 24 hours, to look after the patients and keep on consulting the Senior Consultants, from time to time. As such, no negligence or delay can be attributed to Dr. Prof. G. Singh, in the performance of his duties. 24. The law relating to the medical negligence, has already been settled by the Hon’ble Apex Court as well as the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in plethora of judgments. The Hon’ble National Commission, in the case of Bhajan Lal Gupta & Anr. v. Mool Chand Kharati Ram Hospital & Ors., I (2001) CPJ 31 (NC)=2001 CTJ 159 (CP) (NCDRC), quoted from Halsbury’s Laws of England, Ed. 3 - Vol. 26, pp. 17-18, in Para 22, as under : “22. Negligence : Duties owed to Patient—A person who holds himself out as ready to give medical advice or treatment impliedly undertaken 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.” Degree of skill and care required—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 the particular circumstances of each case, is what the law requires; a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he 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, although a body of adverse opinion also existed among medical men.” 25. In the case of Bolan v. Friern Hospital Management Committee, (1957) 1 WLR 582, Lord Justice Mac Nair while briefing the Jury, directed: (i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that take a contrary view. 26. Further, the Hon’ble National Commission in the case of Smt. Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors., III (2000) CPJ 18 (NC)=2000 CTJ 814 (CP), quoted an extract from Taylor’s Principles and Practice of Medical Jurisprudence XII Ed., which was extracted in Para 11, as under : “I myself would prefer to put it in this way : A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by responsible body of medical men skilled in that particular art. Medical science has conferred great benefit of mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advance in technique is also attended by risks.” 27. On the contrary, the Counsel for the complainants cited the case of NIZAM’S INSTITUTE OF MEDICAL SCIENCES VS. PRASANTH S. DANANKAR ANDOTHERS, (2009) 6 Supreme Court Cases 1, wherein the Hon’ble Apex Court had awarded a total compensation of Rs.1 Crore on different counts, due to medical negligence, on the part of the Opposite Party therein in treating the patient. The ratio of the said judgment is not applicable to the facts of the case, in hand, as the said case is totally distinguishable on facts. Therefore, no benefit can be drawn by the Counsel for the complainants from judgment. 28. The next allegation, leveled by the complainants was that the ventilator of the Opposite Party was defective, and, the patient could not be ventilated despite clear direction of the Specialist Doctor and rather, as an alternative, a manual pump was supplied to provide manual ventilation to the patient, by which time, his condition deteriorated to the extent that he started becoming unconscious. This allegation has been specifically denied by the Opposite Party (PGIMER) stating that the lack of ventilator was temporary and the patient stayed in the ICU, after the operation for 10 days i.e. from 06.06.2008 to 16.06.2008, where not only he was on ventilator but also utilized all other services of the PGIMER available for critically ill patients. 29. It is a fair admission, on the part of the Opposite Party that the ventilator got defective, and the patient was put on temporary ventilation, for some time. In our view, the Opposite Party should have made necessary arrangements, in case of any defect in the ventilator or its non-availability. It was atleast required to keep one or two ventilators, available every time, for the patients, having critical condition, pre or post operation. Thus, by not providing ventilator to the patient immediately, the deficiency, in rendering service, on the part of the Opposite Party, was also writ large. 30. Lastly, the Counsel for the complainants, submitted that there was deficiency, on the part of the Opposite Party, because while issuing the death summary, the date of death was mentioned as 15.06.2008 instead of actual date as 16.06.2008 and this discrepancy in mentioning the date of death was subsequently rectified by the Opposite Party, with great efforts of the complainants. This fact has fairly been admitted, by the Opposite Party in Para No.28 of its reply. Admittedly, the Opposite Party mentioned a wrong date in the death summary, post mortem report as also the death certificate. For correction of the said mistake, the complainants had to make strenuous efforts, and subsequently, the same was rectified on 23.07.2008. After the death of the patient, the complainants were already, in grief, and great sorrow, as the complainant No.1 had lost her husband, at such a young age, whereas the minor children lost their father. This act of the Opposite Party of wrongly mentioning the date of death, further aggravated their pain, which certainly caused a lot of harassment and physical and mental agony to them, and they are liable to be compensated for the said lapse on the part of the Opposite Party. 31. No other point, was urged, by the Counsel for the parties. 32. For the reasons recorded above, the complaint is partly allowed with costs of Rs.10,000/- and the Opposite Party (PGIMER) is directed to pay to the complainants, a consolidated sum of Rs.1 Lac (Rupees One Lac Only), as compensation, on account of deficiency in service of not providing ventilator, as the same was defective and in not mentioning the correct date of death of the deceased in the aforesaid documents. 33. The Opposite Party is directed to comply with the order, within a period of 45 days, from the date of receipt of its certified copy, failing which it shall be liable to pay the amount of compensation of Rs.1 Lac, along with interest @12% per annum, from the date of filing the complaint i.e.15.04.2011, till actual payment, besides costs. 34. Certified Copies of this order be sent to the parties, free of charge. 35. The file be consigned to Record Room, after completion. Pronounced. 1st October, 2012. Sd/- [JUSTICE SHAM SUNDER (RETD)] PRESIDENT Sd/- [MRS. NEENA SANDHU] MEMBNER AD
STATE COMMISSION (Complaint Case No.26 of 2011) Argued by: Sh. Sarju Puri, Advocate for the complainants. Sh. Rajesh Garg and Ms. Namrta Shergil, Advocates for the Opposite Party. Dated the 1st day of October, 2012. ORDER Vide our detailed order of even date, recorded separately, this complaint has been partly allowed. (NEENA SANDHU) MEMBER | (JUSTICE SHAM SUNDER) PRESIDENT | |
AD
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
