Delhi

North East

CC/334/2015

Mrs. Ramawati Rathore - Complainant(s)

Versus

Pushpanjali Crosslay Hospital - Opp.Party(s)

22 Jun 2020

ORDER

  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

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

 

Complaint Case No.  334/15

 

In the matter of:

	Mrs. Ramwati Rathore W/o L.C. Rathore R/o:- 106 A, Pocket B Dilshad Garden, Delhi-110095	Complainant
	Versus
1.               2.	Pushpanjali Crosslay Hospital Registered Office: A-14, Pushpanjali, Vikas Marg Extn. Delhi-110092 Also at:- W-3 Sector-1, Vaishali Ghaziabad, NCR Uttar Pradesh-201012   Dr. Sharda Jain Pushpanjali Crosslay Hospital W-3 Sector-1, Vaishali Ghaziabad, NCR Uttar Pradesh-201012	Opposite Parties

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:               DATE OF DECISION      :

10.09.2015 22.06.2020 22.06.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Concise facts as culled out in the complaint sufficient for deciding the case on merits are briefly recapitulated as that the complainant aged about 65 years was having abnormal vaginal bleeding and severe abdominal pain when she was in USA for which she had visited Marlborough Hospital in Boston, USA on 16.09.2014 where in the Endometrial biopsy done on 26.09.2014, she was diagnosed with focal complex hyperplasia with atypia and endometrial polyps with disordered proliferative-type endometrium. The complainant was also diagnosed as anaemic and was advised rest and if need be, operation. However, complainant returned to India on 15.12.2014 and contacted OP1 hospital on 18.12.2014 when she was referred by one Dr. Neeru Aggarwal, Nephorologist in OP1 hospital to OP2 who then advised the complainant to undergo abdominal ultrasound and various other tests viz complete blood count (CBC), urine test and kidney function test (KFT) which the complainant got done between 18.12.2014 and 19.12.2014 at OP1 hospital. On the basis of the ultrasound report and such test reports, uterine fibroid was detected by OP2 and the complainant was advised by OP2 to undergo Ballooning Therapy for treatment of heavy vaginal bleeding / fibroid polyps as a safer method and treatment for the same with quick and good recovery. The complainant had submitted that as per the test report, her TLC count was 13.4 (higher than the reference range 4-10), border line RBC and low haemoglobin of 10.7 (reference range 12-15) and also low packed cell volume (PCV) of 32.5 (reference range 36 to 46) and high ESR of 45 (reference range 1-19). The complainant was admitted in OP1 hospital on 19.12.2014 when OP2 conducted the ballooning therapy on the complainant for treatment of vaginal bleeding / fibroid despite complainant having fluctuating blood pressure, infection and unfavorable test report but OP2 never tried to control the infection or manage other parameters before conducting the surgery. The complainant was charged a sum of  Rs. 75,593/- for the medical treatment undergone in OP1 hospital which was paid by her. However, post operation, the complainant suffered discomfort and continuous abdominal pain which was reported to the doctors of OP1 but OP2 never visited to see the complainant again or attend to her despite several requests from the complainant as well as her husband and instead the complainant was discharged on 21.12.2014 in this unstable condition, on prescription of six Depoprovera Injections. However, the injections did not suit the complainant. The complainant finding, no relief from abdominal pain and pain in the uterus with problem of fever and fluctuating BP, again visited OP1 on 26.12.2014 as OPD patient where she was again advised readmission and discontinuation of Depoprovera injection and was prescribed other drugs. The complainant was made to undergo series of tests viz CBC, serum calcium and urine routine and culture test between 26.12.2014 to 29.12.2014 which reported high TLC of 15,600 (reference range 4000-11000) and low haemoglobin of 9.9 (reference range 11.5-16.5), high ESR of 18 (reference range 0-20) and low packed cell volume (PCV) of 29.3 (reference range 42-52) but the complainant and her husband became suspicious about the treatment given by OPs as no relief with respect to fever, BP, pain as well as infection in the body of the complainant came forth and therefore refused readmission. Thereafter, complainant contacted one Dr. Chandan Roy, physician on 30.12.2014-31.12.2014 who after examining the complainant’s report prescribed antibiotic injections twice daily for controlling infection in the body as well as uterus of the complainant as also for fever. On the advice of Dr. Chandan Roy to the complainant to contact Dr. Sushma Jindal, consultant gynaecologist, complainant contacted her on 16.01.2015 and was under her treatment and medication as well as in consultation with Dr. Chandan Roy till early February 2015. Therefore, the complainant has alleged medical negligence on the part of OP2 in conducting operation of the complainant despite presence of inspection and fluctuating blood pressure and poor post-operative care and negligent handling of the complainant by OP2 and staff of OP1 due to which her condition deteriorated and despite which she was discharged on prescription of injection which did not suit her and the fact that her condition only deteriorated post-surgery. The complainant has further alleged that OP2 conducted surgery only to gain money and thereafter hastily discharged the complainant without giving full treatment for infections forcing the complainant to consult and take treatment for other doctors causing additional expenditure of Rs. 85,000/- apart from physical pain and harassment to the complainant. The complainant lodged written complaint dated 19.05.2015 with OP1 and legal notice dated 10.08.2015 to OPs through her legal counsel despite receipt of which, OPs failed to respond or refund the claim amount therein. Therefore, the complainant was compelled to initiate legal proceedings against the OPs vide the present complaint praying for issuance of directions against the OPs to furnish complete case sheet of the complainant and to pay a sum of Rs. 1,60,593/- (Rs. 75593/- + 85000/-) alongwith interest thereon @ 18% p.a with compensation of Rs. 15,0000/- for mental harassment and agony and Rs. 25,000/- towards litigation expenses.
2. Complainant has attached copy of discharge instruction and surgical pathological report of complainant issued by Malborough Hospital, Boston US, copy of OPD prescription and surgery advice dated 19.12.2014, copy of lab test report of complainant between 18.12.2014 and 19.12.2014 and copy of discharge summary issued by OP, copy of bill number 14005298 dated 21.12.2014 of  Rs. 75,593/- issued by OP hospital, copy of letter of credit issued by United Health Care Insurance Company authorizing amount of Rs. 43,358/- out of the total bill amount of Rs. 75,593, copy of prescription dated 26.12.2014 and OPD prescription dated 26.12.2014 issued by OP for post-operative status with complaint of shivering and fever advising admission and change of drugs alongwith lab test report of TLC, CBC, urine, copy of prescription dated 30.12.2014 and 31.12.2014 by Dr. Chandan Roy, copy of Hematology report of complainant dated 04.01.2015, copy of prescriptions by Dr. Sushma Jindal, gynaecologist between 16.01.2015 to 03.02.2015 with lab test reports conducted between 17.01.2015 and 19.01.2015, copy of prescription dated 06.02.2014 by Dr. Chandan Roy, copy of complaint letter dated 19.05.2015 by complainant to OP1 for refund of medical expenses and compensation and copy of legal notice dated 10.08.2015 by complainant’s counsel to OPs alongwith postal receipt.
3. Notice was issued to the OPs on 17.09.2015. Both OPs entered appearance, OP2 filed written statement vide which, while admitting the complainant having been referred to her by                       Dr. Neeru Aggarwal, nephrologist in OP1 hospital for treatment of fibroid in uterus and post-menopausal bleeding denied any medical negligence on her part in taking due care of the complainant and performance of her duty towards her. OP2 submitted that as per the noting of Dr. Neeru Aggarwal, the complainant was hypertensive, obese (80 kgs) and K/c/o bilateral renal artery stenosis (atherosclerosis) in which condition patient suffered from marginalized blood supplies to kidneys causing secondary hypertension. OP2 submitted that various medical options viz hysterectomy i.e. removal of uterus and / or uterine balloon therapy (UBT) the latter being a ten minutes day care procedure for removal of thick uterine lining and a clinically proving method which can be performed under LA. In this method uterine temperature is raised through the fluid in the balloon by a computer controlled process for thinning uterine lining and control bleeding and this procedure is applied on poor surgical risk patient as was the complainant in this case. The complainant and her husband were apprised of the said procedure and complainant’s daughter as was informed to OP2 was in the business of selling medical equipment and was thus well versed in understanding the medical situation who was contacted as well by the complainant and was made to speak to OP2 in this regard and given the age, weight and kidney problem of the complainant, she being a poor surgical risk patient, hysterectomy was ruled out and consent was given by the complainant for UBT which consent was also communicated to United Healthcare Parekh TPA Pvt. Ltd., insurer of the complainant on 20.12.2014 on query raised by them. OP2 submitted that as per the ultrasound report of the complainant a fundal fibroid measuring 3X3 centimeters was deducted but no surgery or removal of the same was suggested and clinic procedure UBT was only for controlling heavy vaginal bleeding. In so far as the CBC, urine and KFT reports of complainant showing high TLC, ESR and low HB and RBC, OP2 submitted that they were not so alarming so as to affect the procedure adversely and only TLC was high but since was not associated with any fever, therefore to control abnormally heavy bleeding, the decision of UBT was advisable and therefore taken. OP2 denied any fluctuation in complainant’s blood pressure and stated that on the day of her admission for surgery, the same was recorded as 160/90 both in the casualty as well as in the OT and submitted that the blood pressure in a patient with bilateral renal artery stenosis even otherwise fluctuates. OP2 took the defence that the post UBT procedure pain in abdomen is expected as also known to subside after two weeks or so and the same was also explained to the complainant and her family and therefore a mild injectable analgesic (pain killer) was prescribed at specified intervals till further two weeks as per the standard procedure. OP2 denied having given improper care and attention to the complainant as alleged and submitted that she was discharged on 21.12.2014 in stable condition with normal parameters, no fluctuation of BP and normal temperature. The complainant was prescribed depoprovera as a standard contraceptive widely used in south-east asia for prevention of uterine lining from growing and no contraindication of the same was noticed in the medical record of complainant. OP2 while denying any deterioration of physical condition of complainant or pain due to infection at the time of discharge submitted that some pain is always expected after UBT to redress which pain relief injections were prescribed. OP2 submitted that the complainant had visited OP2 hospital on 26.12.2014 with her husband and was advised by Dr. Neeru Aggarwal (the referring doctor) for admission in the hospital on diagnosing complainant with fever shivering but complainant refused re-admission. In so far as the subsequent treatment undertake n by the complainant from Dr. Chandan Roy and Dr. Sushma Jindal is concerned, OP2 submitted that the former merely continued the treatment advised by the OPs with no new treatment or procedure for infection except supportive treatment viz multi vitamin tablets, vaginal cream and anti-depressant prescribed by the latter. Dr. Sushma Jindal in her reports indicated no new infection and Dr. Chandan Roy in his prescription dated 30.12.2014 mentioned clearly “patient not seen”. Lastly, OP2 submitted that complainant has already been provided with complete treatment paper / case sheet by OP1 hospital at the time of her discharge including complete case diary and discharge summary. Therefore OP2 denying any negligent handling or having caused any physical pain or harassment to the complainant prayed for dismissal of the complaint.
4. OP has attached copy of prescription dated 26.12.2014 by Dr. Neeru Aggarwal alongwith lab reports of complainant and prescription of Dr. Sharda Jain dated 26.12.2014 advising readmission which was declined by complainant , copy of  power point presentation pertaining to UBT as a minimally invasive ten minutes  day care procedure for heavy periods in poor surgical risk patient suffering from anemia, obesity, diabetes, hypertension or chronic renal failure with 99% success rate, copy of additional information request form raised by complainant’s insurer to the treating hospital and response thereto by OP2 informing non willingness shown by complainant for hysterectomy and opting for UBT done on 20.12.2014 for continued bleeding, copy of prescription, copy of complete case diary of the complainant i.e. discharge summary alongwith subsequent follow up of complainant in OPD on 26.12.2014 with Dr. Neeru Aggarwal.
5. Written statement was filed by on behalf of OP1 whereby preliminary objection was raised of mis-joinder of parties on grounds that OP1 hospital now known as Max Super Specialty Hospital is not where the complainant received her treatment but in fact had undergone the treatment at Pushpanjali Medical Centre (PMC) which is distinct / different from OP1 hospital having distinct entity having no relation with PMC and therefore OP1 cannot be held liable for the alleged negligence of  PMC and the role of OP1 was limited only to complainant undergoing certain lab tests in it. OP1 denied having its registered office at A-14, Pushpanjali, Vikas Marg Extension, Delhi-92 and averred having no knowledge regarding medical condition of the complainant or operation undergone by her at PMC as it was not party to either and therefore prayed for striking off its name from the array of parties for want of any cause of action. On merits OP1, while admitting that OP2 is a gynaecologist working with OP1 and that complainant was referred to OP2 by Dr. Neeru Aggarwal on whose advice, the  complainant visited OP1 hospital and  underwent lab tests there on 18.12.2014 and 19.12.2014, submitted that OP2 was also working at gynaecologist with PMC where she had treated the complainant and not in OP1 of which complainant was never a patient and therefore cannot allege medical negligence or vicarious liability against OP1 for acts of OP2. OP1 further in its defence submitted that even the bill / invoice for medical invoices disclose that the complainant had undergone treatment and operation at PMC and incurred cost there not at OP1. Lastly, OP1 denied having received any letter dated 19.05.2015 and submitted that it had duly reply to the legal notice of complainant vide reply dated 08.09.2015 address to complainant as well as her counsel already communicating its defence of being a distinct, different and unique entity from PMC where the complainant only underwent HB, biochemistry and microbiology tests and it was at PMC where she underwent treatment / operation. For defence so taken, OP1 prayed for dismissal of the complaint. Vide application for placing additional fact, OP1 submitted that as per the board resolution dated 03.09.2015, its name  stood changed to Max Super Specialty Hospital, Vaishali from its former name Pushpanjali Crosslay Hospital in supersession of its board resolution dated 16.05.2007.
6. OP1 has attached copy of reply dated 08.09.2015 to legal notice dated 10.08.2015 of complainant and CTC of board resolution dated 03.09.2015 passed by Crosslay Remedies Ltd. parent company of OP1 in other words OP1 being initiative of Crosslay Remedies Ltd.
7. Rejoinder to the defence taken by the OP1 was filed by the complainant denying averment of OP1 as being a distinct identity from PMC which is evident from the OPD prescription dated 19.12.2014 by OP2 on the letter head of OP1 shown as initiative of Crosslay Remedies Ltd., both OP1’s parent / group company Crosslay Remedies Ltd. and PMC located at A-14 Pushpanjali, Vikas Marg Extension, Delhi-92  and A-15 Pushpanjali, Vikas Marg Extension, Delhi-92 respectively and complainant having been examined by OP2 at OP1 on 19.12.2014  and as prescription on the letter head of OP1, she was advised admission for UBT at PMC to be conducted on 20.12.2014 at 2:30 PM and urged that if both centers were different, why tests were conducted at PMC and also at OP1. Complainant in rebuttal to defence taken by OP2 urged that the decision for UBT was taken by OP2 and reply by OP2 dated 20.12.2014 to the query raised by complainant‘s insurer does not bear the signature of the complainant or her husband. Complainant denied having been explained post-operative abdominal pain by OP2 and despite several request made by the complainant to OP post operation, OP2 never attendant to the complainant and was instead forcefully discharged on 21.12.2014 on wrong prescription of pain killer injection which were changed after change on 26.12.2014 after complaint. Therefore complainant prayed for relief claimed.
8. Evidence by way of affidavit was filed by the complainant exhibiting the document s relied upon as Ex CW 1/1 to Ex CW 1/14.
9. Evidence by way of affidavit was filed by both OP1 sworn by its medical superintendent and OP2 exhibiting respective documents as Ex DW 1/1 and R2W1/1 to R2W1/5. OP2 inter alia submitted that the complainant did not spend any sum for her treatment and the entire bill of Rs. 75,593/- was paid by its insurer / underwriter company United Health Care Pvt. Ltd. under cashless scheme.
10. Written arguments were filed by complainant as well as OP2 in reassertion / reiteration of their respective grievance / defence. OP1 failed to file its written arguments despite several opportunities from October 2016 till April 2019 and therefore its right to file the same was closed vide order dated 12.04.2019. Thereafter, to seek medical opinion in the present case, the complete case file was sent to the department of gynaecology GTB Hospital Shahdara, Delhi in August 2019 and as per the board formed on 30.10.2019 comprising Dr. Amita Suneja, Director Professor and HOD (Obs.& Gynae), Dr. Shalini Rajaram, Director Professor (Member) and Dr. Kiran Guleria Director Professor (Member), the board, after considering the complete case summary / history / case record of the complainant in Para 1 to 13, opined that given the co-morbidities suffered by the complainant of sever HTN, bilateral renal artery stenosis and obesity, instead of hysterectomy as primary modality of treatment, she was treated by endometrial ablation which she withstood well notwithstanding mildly alleviated TLC.
11. We have heard the rival contentions of all parties and have bestowed our anxious consideration to the documentary evidence placed on record by all parties to buttress their respective stands alongwith medical opinion received from GTB hospital Delhi. During the course of oral arguments counsel for OP2 placed on record copy of medical expert opinion dated 03.10.2019 issued by a three member board of Delhi Gynaecologist Forum  which after going through the medical record, case file and discharge slip of the complainant opined that OP2 has an excellent academic background and conducted uterine balloon therapy upon the complainant in view of complainant being a high risk case for major surgery given the comorbidities that she was suffering from viz obesity, hypertension and compromised kidney, UBT being the best available course of procedure adopted by OP2 to control vaginal bleeding.
12. The case now falls for adjudication. The key question is whether OPs were negligent in conducting UBT and rendering post-operative care to the complainant. Undisputedly, the complainant underwent UBT done by OP2 at PMC hospital on 20.12.2014 during her period of admission there from 20.12.2014 to 21.12.2014 and paid a sum of Rs. 75,593/- for the same to OPs. The dispute arose when as per the complainant, she was hastily discharged by OPs in unstable condition on 21.12.2014 without giving any post-surgery care and mere prescription of injections which did not suit her in terms of no relief from abdominal pain and not paid attention to when she reported back to OPs with the said complaints on 26.12.2014 and was instead ask for readmission which she then refused and was compelled to seek alternate medical advice for relief. To the objection of OP1 being a distinct and different / independent entity from PMC, thorough perusal of medical documents viz OPD prescription of the complainant dated 19.12.2014 under OP2’s consultation is on the letter head of OP1 whereby OP2 had advised complainant to undergo UBT at PMC. Registered Office of OP1 is at A-14, Pushpanjali Delhi and that of PMC is adjoining thereto at A-15 Pushpanjali Delhi and therefore to dispute OP1 being a distinct entity from PMC while admitting OP2 being its consultant gynaecologist as also the referring from Dr Nerru Aggarwal also attached to the OP1 does not find favour with us as both hospitals i.e. OP1 and PMC are initiative of Crosslay Remedies Ltd. having common management in terms of their Chairman and Manager Director (C&MD) and Gaurav Aggarwal, Medical Director / Head Operation of OP1. Therefore, the defence taken by OP1 in its written statement stands falsified / negated on this very ground apart from the fact that OP1 has admitted that Dr. Neeru Aggarwal, Nephrologist and OP2 were consultant Gynaecologist in its hospital as well coupled with the prescription dated 19.12.2014 by OP2 on the letter head of OP1 asking complainant to come to PMC on 19.12.2014 for undergoing UBT.
13. Now let us advert to the key issue for adjudication whether there was any negligence on the part of OP2, treating surgeon in conducting UBT and extending post operation care which OPs were duty bound towards the patient (complainant) and whether                  post-operative complication was caused due to lack of care / negligence on the part of operating surgeon of OP which is the moot question and the key issue, answer to which shall decide the fate of the present complaint and its outcome / conclusion. Undoubtedly, from the face of records it is evident that the Total Lymphocyte Count (TLC) of complainant continued to be at high levels beyond the reference range pre and post-surgery (UBT) i.e. infections were present in her body from lab reports since December 2014 till last report taken on 04.01.2015 which revealed that the TLC always remained between the range of 15000-16000 / 13.4-17.09. As per the written statement of OP2, the treating doctor has admitted to post operation abdominal pain as a common phenomenal after UBT procedure but which gradually subsides in a fortnight and therefore  mild injectable analgesic  (pain killers) are normally prescribed post-surgery to be taken for two weeks thereafter as per standard procedure. UBT as per the power point presentation is a minimally invasive, highly safe, cost effective and high success rate procedure for poor surgical risk patients having co-morbidities like obesity, diabetes, hypertension and chronic renal failure apart from other cardiac etc. complications. The complainant was a 65 year old lady with heavy menopausal bleeding since September 2014  after 13 years of menopause and was a known case of obesity, hypertension, anemia and bilateral renal artery sclerosis (athenosclerosis), therefore having compromised kidney and heart for which reason as against the standard protocol of hysterectomy (removal of uterus), a less invasive and proven clinically saved procedure of UBT was advised more so on complainant’s reluctance and unwillingness for hysterectomy to control abnormally heavy vaginal bleeding by thinning the endometrial wall which was thick and           post-operative medication was prescribed to control thickening of the same alongwith pain killer injections. In the discharge summary notes by OP2, it has been noted that the complainant “stood therapy well” and was discharged in stable condition she was prescribed pain killer injection and depoprovera for prevention of thickening of endometrium wall. Thereafter, complainant made post operation visit to OP1 hospital on 26.12.2014 as OPD patient with complaint of constipation and fever with chills where medication was changed by OP2 on her complaint of the same not suiting her and she also consulted Dr. Neeru Aggarwal, Nephrologist on the same date for BP and renal disease which the complainant was a known case of who also prescribed certain medications and tests pertaining to Hematology and complainant was advised readmission explaining the risk but the same was refused by complainant. The complainant did not show up in OPs hospital thereafter and subsequently took treatment of  Dr. Chandan Roy and Dr. Sushma Jindal between 30.12.2014 to 06.02.2015 as per records where she was managed conservatively by administering antibiotic and some other medication for post-menopausal hot flushes and vaginitis and burning micturition. No fever or vaginal discharge was detected nor was any complaint of bleeding after UBT. Complainant’s subsequent report of CBC and urine are not alarming or unusual except a continued higher level of TLC and post-menopausal complication. In fact Dr. Chandan Roy had not even examined the complainant as is evident from prescription dated 30.12.2014. In this regard we are guided by the medical opinion extended by experts in the board constituted by GTB hospital, Delhi which opined that TLC was mildly elevated but was not a specific marker or obstruction in the surgery so conducted of UBT by OP2.
14. The question as to how and by which principle, the court should decide the issue of negligence of a professional doctor and hold him liable for his medical acts /advice given by him/her to his patient which caused him/her some monetary loss, mental and physical harassment, injury and suffering on account of doctor’s medical advice/treatment (oral or operation) is no longer               res integra and settled long back by the series of English decisions as well as decisions of Hon'ble Supreme Court. Negligence per se is defined in Black’s Law Dictionary as: conduct, whether of action or omission, which may be declared and treated as negligence without any arguments or proof as to the particular surrounding circumstances, either because of violation of statute / ordinance or because of being palpably opposed to common prudence that no careful person would have been guilty of. The classic exposition of law on this subject is first laid down in a decision of Queens Bench in the leading case of Bolam Vs. Friern Hospital Management Committee [1957] 1 WLR 582 (often referred to as the Bolam Test) in which Mc. Nair J. explained the law as:  “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 the exercise the ordinary skill of an ordinary competent man exercising that particular art.” The said law laid down in Bolam’s case is consistently followed by courts worldwide as being correct principle of law known as Bolam Test.  A careful reading of Bolam case shows that the standard of ‘reasonableness’ is implicit in the test. There may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent”. The aforesaid principle has been reiterated and explained by Bingham L.J. in his speech in Eckersley Vs. Binnie (1998) 18 Con LR 1 “Professional Man should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitation on his skill. He must bring to any professional task he undertakes no less expertise, skill and care then other ordinarily competent members of his profession would bring, but need bring no more. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet”. 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. Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care. A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure. (cf. Halsbury’s Laws of England 4^th Edn. Vol.26 Pg.17-18).” Lord Atkin’s speech in Andrews Vs Director of Public Prosecution (1937) A.C. 576 about lack of care distinguished from very high degree of negligence to create civil liability has been followed by Hon'ble Supreme Court in Bhalchandra @ Bapu Vs State of Maharashtra AIR 1968 SC 1319 and Syad Akbar Vs State of Karnatka (1980) 1 SCC 30 holding that the negligence to be establish must be culpable or gross and not negligence merely based upon an error of judgment  The Hon'ble Supreme Court in its Three Judge Bench judgment in the case of Jacob Mathew Vs. State of Punjab III (2005) CPJ 9 SC examined the law laid down in Bolam test and held that a surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial. The only assurance which such a professional can give or impliedly be given is that he is possessed of requisite skill in that branch of profession practiced by him while undertaking the performance of task entrusted to exercise his skill with reasonable competence and this is what the person approaching him can expect. The Hon'ble Supreme Court further observed in the Jacob Mathew judgment that different doctors have different approaches, some have more radical while some have more conservative approaches. All doctors cannot be fitted in to a strait-jacketed formula, and cannot be penalized for departing from that formula. Hon'ble Lordships further observed that simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. Hon'ble Supreme Court in Martin F. D’Souza Vs Mohd Ishfaq  (2009) CPJ 32 (SC) held on lines of Lord Denning’s important observation made in Hucks Vs Cole (1968) 118 New L J 469 that “a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of other. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. In Derr V. Bonnev, 231 p 2d 637, Wash. 1951, the Court’s definition of negligent treatment is an excellent statement of the general definition of a physician’s legal responsibility in treatment:

1. Before a physician or surgeon can be liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases or he must have neglected to do something required by these standards.
2. In order to obtain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown and further, that the doctor failed to follow the method prescribed by that standard.
3. It is not required that physicians and surgeons guarantee results, nor that the result be what is desired.
4. The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence.

In Roe and Woolley Vs Minister of Health (1954) 2 QB 66, Lord Justice Denning said “it is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefit without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. We should be doing a dis-service to the community at large if we were to imposed liability on Hospitals and Doctors for everything that happens to go wrong.” What amounts to medical negligence on the part of medical professional has been considered by Hon'ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs Dr. Trimbak Bapu Godbole AIR 1969 SC 128, Achyutrao Haribhau Khodwa Vs State of Maharashtra (1996) 2 SCC 634, Spring Meadows Hospital Vs Harjot Ahluwaliya (1998) 4 SCC 39, Indian Medical Association Vs V. P. Shantha (1995) 6 SCC 651, Poonam Verma Vs Ashwin Patel (1996) 4 SCC 332, State of Haryana Vs Smt. Santra (2000) 5 SCC 182, Savita Garg Vs Director, National Heart Institute (2004) 8 SCC 56, ratios of which are not being referred to unburden our opinion but certainly legal position settled therein would be our guiding force.

In the landmark judgment of Kusum Sharma and Ors. Vs Batra Hospital and Medical Research Centre and Ors. I (2010) CPJ 29 (SC), the Hon'ble Supreme Court, while deciding whether the medical professional is guilty of medical negligence held that following well known principles must be kept in view interalia:

1. Negligence is the breach of the duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do

(ii) negligence in an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon error of judgment

(III) the medical profession is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable dergree of care neither highest nor very low and competence to be judged in light of particuals circumstances of each case

(iv) a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

5. in the realm of diagnosis and treatment there is a scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor
6. the medical professional is often called upon to adopt a procedure which involves higher elements of risk but which he honestly believed as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his / her suffering which did not yield desire results may not amount to negligence
7. negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck
9. It is our bounden duty and obligation of civil society to ensure no unnecessary harassment or humiliation of medical professionals so that they can perform their professional duty without fear and apprehension
10. The medical practitioner at times also have to be saved from such a class of complainant’s who used criminal procedure as a tool for pressurizing medical profession / hospital for extracting uncalled for compensation which malicious proceedings deserve to be discarded
11. Medical professionals are entitle to get protection so long as they perform their duties with reasonable skill and competence in the interest and welfare of the patient   which should be paramount

The Hon'ble National Commission has been consistently following the settled law as aforementioned in landmark judgments passed by it on the topic of “medical negligence” viz  Pratap Singh Vs Sahib Nursing Home and Surgical Centre in F.A. no. 1038/2000, Dinesh Kaushal & Ors. Vs Dr. K.K. Khurana III (2002) CPJ 297 (NC), Mam Chand Vs. Dr. G.S. Mangat of Mangat Hospital I (2004) CPJ 79 (NC) and Deepak Kumar Satsangi (Dr.) Vs Sanjeevan Medical Research Centre Pvt Ltd. III (2016) CPJ 96 (NC) and Dr. Sanjay Gadekar Vs Sangamitra @ Sandhya Khobragade in F.A. No. 484/2015 passed on 20.05.2016.

To succinctly bring the rival contention in to focus after having exhaustively dealt with the law on medical negligence, it may be stated in brief that the complainant is alleging medical negligence on the part of OPs in conducting UBT despite complainant suffering from infection and failure by OPs to extend post-operative care which led to post operation complication. In Bolitho Vs City and Hackney Health Authority (1996) 4 ALL ER 771, House of Lords held that the course adopted by medical practitioner must stand a test to reason “the court is not bound to hold that a defendant doctor escapes liability for negligence just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. Hon'ble Justice S. B. Sinha in Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee III (2009) CPJ 17 (SC) has preferred Bolitho test to Bolam test and redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. Hon’ble Apex Court held that the charge of professional negligence on a medical person is a serious one which affects his professional status and reputation and as such the burden of proof would be more onerous.  A doctor cannot be held negligent only because something has gone wrong of for any mischance / misadventure / error of judgment in making a choice between two options the mistake in diagnostic is not necessarily a negligent diagnosis. The decisions also says that the court should take into account patient’s legitimate expectation from the hospital or the concerned specialist doctor of due care from point of admission to his discharge and review of his condition thereafter. In P.B. Desai Vs State of Maharashtra (2013) 15 SCC 481, the ‘Duty of Care’ which a doctor owes towards his patient has been clearly explained by Hon'ble Supreme Court as follows: “once It is found that there is ‘duty to treat’ there would be a corresponding ‘duty to take care’ upon the doctor qua his patient of ethical / legal character arising in a contractual relationship. Ethical ‘duty to treat’ on the part of doctor is clearly covered by Code of Medical Ethics 1972, Clause 10 of which captions “Patient must not be neglected.” Therefore the Hon'ble Supreme Court implied by the said judgment that duty of care of treating doctor did not end with surgery but post-operative care as well. The Hon'ble National Commission echoed the said view in P.D. Hinduja National Hospital and Medical Research Vs Mrs Veera Rohinton Kotwal II (2018) CPJ 342 (NC) in which it held that “Duty of Care” does not end with surgery. The Hon'ble Supreme Court in Arun Kumar Manglik Vs Chirayu Health and Medicare Pvt. Ltd. III (2019) CPJ 1 (SC) laid emphasis on “Patient Centric Approach” and observed that “Standard of Care” as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts.

In Maynard Vs West Midlands Regional Health Authority [1985] 1 All ER 635, the words of Lord President (Clyde) in Hunter Vs Hanley 1955 SLT 213 were referred and quoted by Lord Scarman who held: “A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that there was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances.”  

At this juncture let us examine the issue of post operation complication of UBT such as abdominal pain. As per the power point presentation regarding the said procedure, it is a minimally invasive and clinically proven highly safe day care procedure for heavy periods by way of endometrial ablation in patients which are poor surgical risk suffering from co-morbidities as was the complainant’s case. She was prescribed standard pain killer injection and depoprovera to prevent uterine lining from growing as hysterectomy, even though a primary modality of treatment in such menopausal complication could not be conducted on the complainant because of her several ailments of severe hypertension, obesity and bilateral renal artery stenosis.

On consideration of the medical text on UBT  by experts and the legal position, it is established beyond reasonable doubt that complainant’s suffered from co-morbidities and compromise health leading to fluctuation in BP and kidney complications which rightly propelled OP2 to take a call for UBT instead of hysterectomy and thereafter requisite medication was prescribed to the complainant and she was well attended even during her post operation visit to OPs on 26.12.2014 where both doctors, Dr. Neeru Aggarwal and OP2 in discussion advised readmission to the complainant post change of medication and lab test report but it was the complainant herself which decided against it and instead chose to refer to other doctor for fever and pain etc where she was administered antibiotic, vaginal cream and antidepressants. However, that does not mean or imply that such ailments were caused due to OPs negligence / lack of care in performing the procedure. 

15.  Now we address ourselves as to whether there was any negligence on the part of treating doctor OP2 in conducting UBT in complainant for controlling abnormally heavy vaginal bleeding in December 2014 for which post operation complications, the complainant had to seek alternate / corrective medical treatment. On this key aspect for adjudication, we are guided by the pearls of wisdom of Hon'ble the then Chief Justice of India in Jacob Mathew’s case (supra) which read as under: 

“There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the doctor cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practices carried on or how the doctor functions in real life. Dealing with a case of medical negligence needs a deeper understanding of practical side of medicine. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.’’

The Hon'ble Supreme Court in C.P. Sreekumar (Dr.) MS (Ortho) vs S. Ramanujan (2009) 7 SCC 130 held that bald statement of the complainant cannot be accepted to reach conclusion that the doctor lack expertise and the doctor’s decision for choosing one procedure over the other after taking consent from the patient was not so palpably erroneous or unacceptable so as to dub it as a case of professional negligence.

In the present case, the complainant was fairly asymptomatic and discharge in stable condition form OP hospital on 21.12.2014 post UBT with normal vitals and operation notes during surgery reveal that she tolerated the procedure well and the surgery was uneventful. It was only on 26.12.2014 that due to constant abdominal pain, medication of complainant was changed by OPs doctors and she was advised by OP to undergo certain tests and readmission which the complainant refused.

The Hon'ble National Commission in Smt. Narangiben Subodhchandra Shah Vs Gujarat Research and Medical Institute (2012) III CPJ 509 (NC) observed that “After all doctors can only treat but not guarantee the success of a surgical operation which inevitably is fraught with risks”. The Hon'ble Supreme Court in Martin D’Souza (supra) case held that “simply because a patient has not favourably responded favourably treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the principal of Res Ipsa Loquitor. In the present case, the complainant has laid emphasis on abrupt discharge by OP despite complaining of continue abdominal pain no visit by OP2 post operation and having been prescribed medication which did not suit her and that she found no relief from pain post UBT. However, this allegation / argument does not cut much ice because nowhere in the present case and the medical records of the complainant has the complainant been able to show that he had any abnormal / unusual anatomy keeping in view of which, UBT was counter indicative nor are the operating notes of surgeon of OP1 suggestive of any unusual complication. We are further guided in this regard by the medical opinion of panel of doctors. It is relevant to refer on the aspect of conclusiveness of medical opinion by the settled law passed by Hon'ble Supreme Court in Smt. Vinitha Ashok Vs. Laxmi Hospital I (2002) CPJ 4 (SC) in which the Hon'ble Supreme Court held that a doctor will not be guilty of negligence if he had acted in accordance with practice accepted as proper by a responsible body of Medical Men skilled in thatparticular Art and if he has acted in accordance with such practice and merely anybody’s contrary allegation taking a contrary view will not make him liable for negligence. Martin D’Souza & Jacob Mathew judgments are also embodiments of the same proposition of law for taking medical opinion to avoid harassment to doctors or surgeons or hospital that may not be ultimately found negligent. Again traversing to the judgment of Hon'ble Supreme Court in Martin D’Souza (supra) case, the Hon'ble Supreme Court observed that “when a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong therefore somebody must be punished for it. However, it is well known that even the best professionals sometime have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”

16.  Therefore in our considered view, we do not find any negligence on the part of OPs during surgery or the procedure adopted in complainant’s case being less invasive and highly successful procedure for controlling abnormal vaginal bleeding in a compromise health and poor surgical risk case as that of complainant which procedure was not only consented to by the complainant but also well tolerated by the complainant. In so far as post-surgery care is concerned, the complainant was given pain killer injection and other medication to check abdominal pain               post-surgery and to prevent thickening of endometrium wall and when she reported on 26.12.2014 with complaint of fever with chills to OP hospital, her medication was changed and post receipt of her lab reports, she was advised readmission which was refused by her. After having exhaustively dealt with the case in hand and the legal discourse discussed threadbare & settled proposition of law, we are of the opinion that no medical negligence can be attributed to OPs in having conducted UBT on complainant in December 2014 which is an increasingly rampant procedure in        post-menopausal women with co-morbidities with abdominal pain as known / common post operation complication of UBT in today’s world. The law is watch dog and not a blood hound, and as long as doctors do their duty with reasonable care, they will not be held liable even though the treatment may not give desire result. We therefore do not find any fault with the procedure of UBT done by OP and suffice it is to say that such post operation complications are common place. We therefore arrive at the irresistible conclusion of complainant having failed to establish his case of medical negligence against OP. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia and the latter is completely lacking in the present complaint. Bad results are not necessarily due to medical negligence unless the doctor did not consider the possibility of such complications or failed to watch for it carefully or promptly or treat it timely. We therefore dismiss the complaint as devoid of merit.           
17. Let the copy of this order be sent to all parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
18.  File be consigned to record room.
19.  Announced on  22.06.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member