Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor MaharanaPratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.104/21.05.2018
Reena wife of Shri Ankit Kumar
r/o VPO Khojkipur, Tehsil Bapoli,
Distt.Panipat, Haryana …Complainant
Versus
OP. Sir Ganga Ram Hospital, Rajender Nagar, New Delhi
(Vascular &Endovascular Surgery Department,through its
Head of Department Dr. V S Bedi) ...Opposite Party
Date of filing: 21.05.2018
Coram: Date of Order: 16.05.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties)–The complainant has grievances of medical negligence and deficiency of services against OP hospital through its Head of the Department Dr. V. S. Bedi that because of such negligence and services, her left thumb and index figure were amputed, she has sought compensation of Rs. 20 lakh and reimbursement of medicalbills and expenses of Rs. 1 lakh towards medicine, other expenses and visits to the hospital of OP and other hospital.
1.2. The complaint is opposed that neither there is any medical negligence nor deficiency of services, since the OP had diagnosed and treated the complainant with best possible treatment, that too with the consent of the complainant and her family members vis-à-vis all possible attempts were made by vascular operation of left hand to salvage and also saved the hand of complainant. The complaint is without cause of action.
2.1. (Case of complainant)–The complainant was admitted in the hospital of OP after some clinical tests and the complainant was assured that she will be recovered from pain and get well soon after vascular operation of her left hand, the complainant consented for such operation after the assurances given. The complainant deposited Rs. 50,000/- on 20.05.2016 besides arranging two units of blood for the said surgery. Dr. V. S. Bedi performed the surgery of left hand of the complainant and it was told that surgery is successful. The complainant was discharged on 22.05.2016 and an amount of Rs. 18,248/- was directed to be deposited. The complainant also spent Rs. 10,000/- in buying medicine from the medical store. She came at her residence.
2.2.However, on 24.05.2016 the complainant felt pain in her left hand badly, the index finger and thumb of left hand started blackish. She again visited the hospital and contacted the treating Dr. V. S. Bedi, who again assured that it would be normal with the passage of time but there was no recovery/improvement in her left hand rather it was getting more blackish day by day.
On 31.05.2016, complainant again visited hospital, she contacted Dr. V. S. Bediand shown him more blackish in index finger, then Dr. V. S. Bedi strangely said that index figure and thumb has to be cut/amputation, she will not recover. The complainant was asked to deposit the amount for treatment with the hospital. It shocked the complainant and her family, they came back.
2.3.The complainant was admitted in a hospital in Panipat, where her index finger and thumb of left hand was amputation by the doctors.
Thus, the conduct of doctor of OP was of deficiency of services and also medical negligence that the complainant suffered loss of her left thumb and index finger being a disability sustained to her in young age, her future became darken due to negligence of OP. She had spent an amount of Rs. 1 lakh on treatment. The complainant suffered immense mental tension, pain and agony to her but for no fault. She also served legal notice dated 17.04.2018 to the OP but it was not responded. That is why the complaint, it is within time.
2.4 The complaint is accompanied with bills and receipt of amount deposited with Sir Ganga Ram Hospital/OP, discharge summary dated 22.05.2016 issued by OP, follow up and prescriptions, legal notice dated 17.04.2018.
3.1 (Case of OP)-The OP gives its profile in the written statement that it is a leading reputed and distinguish hospital of the country. The OP can vouch to have one of the best doctors in the country, who are associated with it and working with full dedication for providing satisfactory services to the patient.
However, the complaint is without cause of action, it is a frivolous complaint, it is a fancy litigation and no expert opinion was obtained by complaint to support her complainant, whereas it is settled law for expert opinionis to be obtained, as held in Martin F. D’Souza Vs. Mohd. Ishfaq (AIR 2009 SC 2049).The OP also refers Ms. Shanta Ben Mulji Bhai Patel & Ors. Vs. Beach Candy Hospital and Research Centre and Others 1 (2005) CPJ 10 (NC)- that when doctors performed their duties to the best of their ability and with due care and caution, it cannot be held deficiency of services; simply because something goes wrong, conclusion of deficiency cannot be drawn.AchutraoHaribhauKhodwaVs. State & Maharashtra & Ors. 1 (1996) CLT532 (SC)-the court would indeed be slow in attributing negligence on the part of a doctor if he has performed his duty to the best of his ability and with due care and caution; medical opinion may differ with regard to the course or action to be taken by a doctor treating a patient.
3.2. The complainant was presented to the OPD of Dr. V. S. Bedi, she was having complaint of blackish discoloration of left hand and wrist with severe pain for last 4 days. She gave history of injection given in a private hospital four days prior to being seen by Dr. V. S. Bedi. Following that injection, the complainant developed local numbness, bluish, discoloration and severe pain radiating from left elbow to the left hand. This fact is hidden from the complaint by the complainant, since it was cause of her developing gangrene in the hand. The relatives of complainant were counseled that all attempts will be made to salvage the hand since it was already threatened because of an intra arterial injection given in a private hospital. Then, revascularization was attempted with the consent and best possible treatment was provided to the complainant. However, instead of commanding the efforts of the team and to blame the person, who gave intra-arterial injection, the complainant made allegations of negligence on the part of OP, who salvage most of the hand of the complaint. The case sheet reflects all such efforts made to salvage. There was no assurance given that entire hand would be completely salvageable.
3.3 In the background of aforementioned facts and circumstances, the OP denies all the allegations of the complaint that neither any assurance given as alleged nor there was any negligence on the part of OP, rather the OP and its doctor made all possible attempt with due consent for revascularization, which also reflects in the progress report. The operation was successful in removing the clots from the forearm and relatives were informed that blood flow to the thumb and index finger would be restored due to damage by the earlier drug administered.
The patient was already presented with wet gangrene and treatment is to first revascularization the blockage. It is only after the blood flow is restored that one can say definitely as to how much damage is there permanently and how much salvage is likely. It was counseled to the relatives that whatever attempts could be made, that have been made but no assurance was given about the complete viability of the hand. The complainant/patient was advised for follow up to assess of progress of the disease but she did not come for follow up to decide the level of amputation. Moreover, the complainant has not filed any document of hospitalisation at Panipat, where she took that treatment.
3.4 It is clear that complainant is switching the blame on the OP, who treated the problem correctly despite she reported four days after the event but she was managed immediately on emergency basis to minimize the damage. Moreover, she was provided treatment as per standard medical protocol and there is no negligence or deficiency of services. The complaint is liable to be dismissed.
3.5.The reply is supported with the record of admission/discharge, progress report, assessment (nursing), investigations, discharge summary, record of intensive care unit.
4.1. (Evidence)-In order to establish the case against OP, the complainant Smt Reena led evidence by filing her detailed affidavit with the support of documents filed with the complaint.
4.2. The OP-Hospital also led its evidence by filing affidavit of treating doctor Dr V S Bedi, Chairperson - Vascular and Endovascular Surgery(he,also authored the written statement for and on behalf of OP).
5.1 (Final hearing)- The complainant filed written arguments, which are blend of pleading and evidence. Similarly, the OP also filed its written arguments, it also on pattern of blend of pleading and evidence coupled with case law (already cited).
5.2. The parties were given opportunity to make oral submissions. Shri Mange Ram Rawat, Advocate for complainant and Shri Subhash, Advocate along-with Dr. Nikhil for OP made their respective arguments.
6.1 (Findings)- The contentions of parties the sides are considered, keeping in view their respective case, evidence on record, statutory provisions of law and case law referred.
6.2. The plea of complainant is of medical negligence and deficiency of services by OP and its treating doctor. But the OP challenges and deniesall such allegations of medical negligence and deficiency of servicesfor want of evidence &medical expert opinion against treating doctor.
6.3. Since one of factor to be determined'whether or not there is medical negligence, it is appropriate at this stage to first refer a precedent on the point of medical negligence, test, guidelines and scale to be applied to determine it, ethics involved and so on. It is laid down in precedent 'Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8, 9 and 12; in which the previous precedent Kusum Sharma & others VsBatra Hospital & Medical Research Centre & ors AIR 2010 SC 1050 is also referred with its relevant paragraphs are Para 22 & 89] -
[Para 8] "22. Negligence. -Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such à 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"
[para 9]. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be 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 takes a contrary view (Bolam v. Friem Hospital Management Committee -1957 1WLR 582). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
A situation, thus, cannot be countenanced, which would be a dis-service to the community at large, by making doctors think more of their own safety than of the good of their patients.
[12]. Inpara 89 of the judgment in Kusum Sharma &Ors. the test had been laid down as under:
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the 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:
I. Negligence is the breach of a 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 is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring 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.
IV. A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is 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.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes 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 the desired result may not amount to negligence.
VII. 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 avail-able, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/ hospitals particularly private hospitals or clinics for extracting uncalled for compensation. The malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professional.
As certain tests, guidelines and rule have been laid down in precedents Vinod Jain VsSantokbaDurlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8 9 and 12] &Kusum Sharma & others VsBatra Hospital & Medical Research Centre & ors AIR 2010 SC 1050, therefore, from that point of view, duties are prescribed for the medical profession, they are (i) a duty of care "in deciding whether to undertake the case"; (ii) a duty of care in deciding "what treatment is to be given" and (iii) a duty of care "in administration of that treatment". On failure to observe them or any of them, it will be case of medical negligence. Therefore, it would be appropriate to take the features of this case one by one from thatpoints of view of those tests namely (i) a duty of care in deciding whether to undertake the case; (ii) a duty of care in deciding what treatment is to be given and (iii) a duty of care in administration of that treatment.
7.1.Firstly, issue of duty of care in deciding whether to undertake the case? The first issue is whether the OP had taken proper care to undertake the case of complainant. Since, the case of parties and their documentary record have already been referred but in order to decide this issue, it needs to explore them.
There are juxtaposition in the stand of parties, as the complainant contends that after her admission in the hospital, she was assured for soon recovery, she gave consent for vascular operation of her left hand, however, it failed. There is medical negligenceHowever, on the other side, the case of OP is that the complainant/patient came to hospital with complaint of blackish de-coloration of left hand and wrist with severe pain for last four days. The relative of complainant were counseled to make attempt to salvage the hand, which was already threatened due to an intra-arterial injection given in the private hospital. Thus revascularization was attempted with the consent and best possible treatment was provided to the complainant. She was attended as per protocol.
7.2. There is no dispute that the complainant came to OP- hospital with complaint of blackish de-coloration of left hand and wrist with severe pain for last four days. As per evidence, the treating Dr V S Bedi, Chairperson (Vascular and Endovascular Surgery) of OPis qualified doctor. The complainant was diagnosed of left upper limb acute limb ischemia [in simple words its means a condition in which blood flow and the oxygen is restricted or reduced in the part of body]as mentioned in the discharged summary dated 22.05.2016 issued by OP since patient came with complain of painful blackish discolor. There is no proof by the complainant that it was not properly diagnosed or the diagnosis out to be something else. Since OP had properly diagnosed of ailment and the same was also attended by the treating doctor. There is no negligence in respect of 'duty of care in deciding to undertake the case'. This clearly proves that OP had undertaken the duty to entertain the case of complainant properly. The first component stand determined. .
8.1The second point is 'of duty of care in deciding what treatment is to be given to complainant' and the third component is of 'duty of care in administration of that treatment' to the patient. The facts and features are inter-related; therefore, both of them are taken together.
According to the complainant, on 31.05.2016, complainant visited OP and told about more blackish in index finger and thumb of left hand, then treating doctor straightaway advised amputation of index finger and thumb, as it would not recover; she was also asked to deposit the amount for such treatment in the hospital. OP failed to perform their obligation required, the assurance given proved failed and she was not recovered. The amputation of thumb and index finger of left hand were done in other hospital in Panipat; this was because of medical negligence and deficiency of services on the part of OP. But on the other side, the OP denies all such allegations. The first procedure was warrantedto salvage the hand of complainant that too for the help and benefit of complainant,it was performed with the consent of complainant and relatives, it was also uneventful. At the time of discharge, the condition of complainant was stable and satisfactory.Moreover, by such treatment, it salvage the hand of complainant since there was threat entire hand because the complainant had reported after four days of episode of injection in the private hospital, there is no fault of OP or treating doctor to be blamed for nor medical negligence or deficiency of services. In fact the OP saved the complainant for immense further damage.
8.2 This rival contentions of parties are considered on this issue, in the light of their respective pleadings and documentary record. The documentary record has been proved by the parties, which includes investigation report, clinical reports, discharge summary issued by OP. The following conclusions are drawnfrom such record:-
(i) On plain reading of the entire record together, the complainant had firstly visited to the OP hospital on 20.05.2016, where Dr. V. S. Bedi had attended the complainant in the OPD followed by other procedure with the consent of the complainant and her relatives.
(ii) The complainant has not given any fact either in the complaint or in the evidence or other record to show what exactly happened to the complainant before she visited OP on 20.05.2016. The complaint just narrates that she had in her left hand. To say, the complainant has not proved any fact of cause of such ailment prior to 20.05.2016.
Whereas, the OP has mentioned history of complaint that complainant came with painful blackish discoloration of left hand and wrist since four days. The complainant was diagnosed of left upper limb, acute limb ischemia, after physical examination. During physical examination there was left hand finger movement found present, sensation present and cyanotic discoloration left hand. Hand cold (cyanotic means - insimple words- blood is low in oxygen tends to bluish color to the skin). Then procedure followed was “left brachial embolectomy under fluoroscopic guidance done under LA on 20.05.2016”. The finding was given "that there was no flow was detected in end of artery of thumb and index finger". This is all matter of record of discharge summary prepared.
(iii) Although, the OP hospital pleads that there was administration of injection in private hospital about four days prior to coming of the complainant in the hospital of OP, however, this fact is not so specifically mentioned the documents proved by the OP (except page 17 of its paper book where IV(?) Inj. over left hand is written in the history).
(iv) The complainant has not proved any medical record pertaining to her treatment in the hospital at Panipat to support allegations in the complaint, the complainant has withheld that record despite objections taken by the OP in the written statement or otherwise to substantiate her case.
(v) There is no proof of any fact by the complainant that there was any medical lapse to administered the treatment by the OP or in taking care of her during treatment of the hospital of OP or subsequently. There is also no other independent evidence of complainant in support of her case or otherwise any medical expert opinion in her favour and against the OP.
(vi). It is also the case of complainant that OP1 had advised during review that left index finger and thumb is to be amputation by looking at the circumstance, it was also done in the hospital at Panipat being case of complainant.
To say, when initially complainant had visited the OP, there was movement in the left finger and sensation was present and that is why the OP had followed the procedure of vascular operation in order to salvage the hand and subsequently considering the development taken place, amputation of left index finger and thumb was opined by the OP. The rest of the hand was saved. The complainant has also filed photograph subsequent to amputation of left index finger and thumb vis-à-vis rest of the hand remained saved.
(vii) The complaint alleges that the blackish in the index finger and thumb of left hand was developed on 24.5.2026 after vascular operation and she visited the doctor again on 31.05.2016, when she was advised amputation. But as per undisputed discharge summary of 22.05.2016 issued by OP, the complainant had already painful blackish discoloration of left hand and wrist for the last four days, when complainant came for treatment on 20.05.2016.
The aforementioned conclusions are clearly depicting that there is nothing emerging against OP in the record in performing the second duty and third duty towards the complainant.The circumstances do not infer medical negligence. There is also no evidence against the OP that it failed to take care of complainant or of deficiency in services. There is no other contrary evidence by the complainant to disprove it.
9.1. So, the complainant could not prove medical negligence or circumstances of medical negligence against OP. It also stand established that OP was not negligent in performing its duty of care in undertaking the case of patient, or deciding for treatment to be given and duty of care in administration of that treatment' till the complainant was under its treatment.
9.2. It would not be out of context to mention that not only complainant withheld the papers of treatment at Panipat hospital vis-à-vis there is no explanation tendered for not producing that record, alike what exactly had happened to her before visiting the OP hospital on 20.05.2016.
10. Thus,in view of the above conclusions, it is held that for want of establishing the case of medical negligence against OP and of deficiency of services, the complaint fails. The complaint is dismissed. No order as to cost.
11.Announced on this16th May, 2024 [वैशाख 26, साका1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh]
President
[ijs57]
