Delhi

StateCommission

CC/10/299

TILAK@ TILKA RAJ SIKRI - Complainant(s)

Versus

SRI BALAJI ACTION MEDICAL INSTITUTE - Opp.Party(s)

06 Sep 2018

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

Date of Decision:06.09.2018   

 

Complaint Case No.299/2010

 

 

Shri Tilak @ Tilak Raj Sikri,

S/o Shri Madan Lal,

R/o House No.933,

New Housing Board Colony,

Panipat (Haryana).                                                     …. Complainant

 

Versus

 

 

Sri Balaji Action Medical Institute,

FC-34, A-4, Paschim Vihar, New Delhi.

Through its Medical Superintendent                        … Opposite Party

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1. Whether reporters of local newspaper be allowed to see the judgment?

  

2. To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. A complaint under Section 17 of the Consumer Protection Act, 1986 (in short, the “Act”) is filed by the complainant Shri Tilak @ Tilak Raj Sikri wherein it is stated that Complainant is a resident of Panipat (Haryana).  On 04.10.2008, he was suffering from high fever. He was checked by Dr. Ahuja of Ahuja Hospital, Sanoli Road, Panipat, in the morning. After checking, the doctor advised the complainant and his father to immediately go to Delhi for better treatment.  Thereupon, complainant got admitted in OP hospital for treatment of fever on the same day i.e. 04.10.2008 at about 2.00 p.m. (Saturday).  On diagnosis it was found that complaint was suffering from Dengue Fever.  The complainant was transferred to ICU of the hospital and his treatment was started.  The requisite amount was deposited by the complainant and his father.  The doctor attending him advised many tests which were carried out in the said hospital. As per tests carried out on 04.10.2008, Dengue NS-1 Antigen was Negative and on 06.10.2008 at about 04:45 p.m., the Platelet count was 50 and on 07.10.2008 at 05:50 a.m., the Platelet count was 128.
2. It is alleged that on 05.10.2008, when the complainant was in the ICU, he started losing his eyesight of both the eyes in the evening time. The complainant immediately informed the nursing staff present there but the Junior Doctors/Nursing Staff did not bother and continued with the wrong treatment throughout whole night.  It is alleged that no senior doctor was consulted by them as the senior doctors were not available in the hospital being Sunday.  In the intervening night of 05-06.10.2008, the condition of the complainant became very critical in the ICU.
3. On 06.10.2008, senior doctor came. The staff informed the condition of complainant, the senior doctor i.e. Dr. Raj Anand advised for MRI and the complainant was sent to Krystal MRI Scan & Diagnostic Centre-1, Paschim Enclave Main Road, Near Peera Garhi Chowk, New Delhi where MRI was done. 
4. It is alleged that the doctors of OP hospital could not control infection in both the eyes of complainant, as a result of which the complainant became completely blind. On 07.10.2008 in the late hours, the attending doctor of the OP hospital asked complainant’s father to take him to All India Institute of Medical Sciences, New Delhi and stated that they were unable to understand the reason of blindness of the complainant.  In the discharge summary, it has been recorded by the doctors that both the corneas have become small in size and severely damaged and not reacting to light.   
5. It is alleged that family of the complainant tried to get him admitted in AIIMS on the same day but he could be admitted only on the next day i.e. 08.10.2008 where his treatment was started. On 09.10.2008 he was admitted in Dr. Rajendra Prashad Centre for Ophthalmic Sciences (Department of AIIMS for eye treatment) and remained there up to 24.10.2008.  However, he could not get his vision. Thereupon, complainant got treatment from Shroff Eye Centre, A-9, Kailash Colony, New Delhi on different dates.  The complainant also got treatment from Patanjali Yogpeeth Haridwar and Mohan Eye Institute.  He also consulted prominent Dr. Daljit Singh Eye Hospital at Amritsar and Dr. RR-Rama Raja Gopal from Sankara Nethralaya from Chennai and also got treatment from Dr. Mahipal S. Sachdev from Centre for Sight at Delhi but his vision could not be regained.  Thereupon, he consulted number of reputed doctors but could not succeed in getting his eyesight.  It is stated that complainant has spent more than Rs.5 lacs on his treatment.  It is alleged that complainant has lost eyesight of both eyes due to wrong treatment and negligence of doctors of OP hospital.  The complainant was left in the ICU of OP hospital under the care of nursing staff/junior doctors who were not competent to take care of any eventuality and emergency.  It is alleged that had the nursing staff called the Senior Doctor as and when the complainant for the first time complained about the loss of vision and proper treatment would have been given, in that event the eyesight of the complainant could have been saved.  It is alleged that nursing staff/doctors of OP are responsible for their negligence and loss of eyesight of complainant.  It is alleged that doctor of OP hospital have failed to give proper treatment to the complainant and present is a case of medical negligence by doctors of OP hospital who delayed in attending the complainant. It is stated that complainant is constrained to lead a miserable life and has become fully handicapped and is dependent on others for his daily pursuits.
6. The complainant before being admitted in OP hospital was working as Production Manager in a reputed concern Raj Woollen Mills at Panipat for the last about 10 years and was getting a salary of Rs.16,000/- p.m. He was also earning Rs.7,000/- p.m. by way of overtime.  The complainant is about 34 years of age.  His old parents, wife and two minor children aged about 6 years and 1 year are dependent upon him.  There is no other earning member in the family of the complainant.  Due to blindness of the complainant, his family is facing great hardship.  The complainant and his family are suffering from mental pain and agony because of negligence of OP hospital.  Because of 100% blindness, one person is needed twenty-four hours to look after the complainant and for helping him in his daily chores.  A permanent disability certificate No.CS/2008/107 dated 04.08.2010 has been issued to him from the office of Civil Surgeon Panipat.  The complainant has also filed complaint against OP before different authorities as well.  His complaint was forwarded to Registrar, Delhi Medical Council, New Delhi.  Complainant has prayed for award of Rs.80 lacs i.e. 5 lacs towards treatment, Rs.50 lacs for loss of eyesight and Rs. 25 lacs on account of mental torture and agony.  Complainant has also prayed for interest of 18% per annum on aforesaid amount. Complaint is duly verified and supported with affidavit of complainant.
7. OP has filed a detailed written statement wherein preliminary objection raised is that the complainant has not made concerned consultants as necessary parties in the present complaint.  It is stated that OP hospital engages Senior and other consultants for various branches of medical attentions and relation with them is on principal to principal basis. Such consultants take professional indemnity of insurance against any proven case of medical negligence committed by them. It is alleged that concerned consultants are necessary parties. It is alleged that vicarious liability does not arise in the present case since concerned consultants are not made party. It is alleged that if there is any deficiency in service as is alleged the concerned consultant ought to have made necessary party in the present case.  It is alleged that complaint is not maintainable without making the concerned consultant as necessary party.  It is further alleged that the complaint involves complicated questions of facts and law which require detailed evidence and cannot be adjudicated upon without detailed technical evidence as such the same is beyond the purview of this Commission.  It is alleged that complaint is time barred. The complaint was discharged on 07.10.2008 whereas complaint is filed in March, 2011.
8. On merits, it is stated that there is no deficiency on the part of the OP as is alleged.  It is denied that there was any negligence or wrong treatment was given by the doctors/Nursing Staff of the ICU as is alleged.  It is stated that as per medical record, patient was brought to OP hospital on 04.10.2008 at 3.00 p.m. at casualty with history of fever since five days with chills and with rigors, passing blood in urine (haematuria), ghabraahat on sitting since 02 days, an episode of haemetmesis 02 days ago. There was a doubt of gastrointestinal bleeding.  The complainant had brought blood reports along with him (done outside) which showed that no platelets were seen.  The complainant was diagnosed to have acute febrile illness with severe thrombocytopenia with bleeding diasthesis, bleeding gums. He also had purpuric spots on legs. He was immediately admitted to ICU at 3.00 PM where he was seen by senior consultant and unit head. Keeping in view, his symptomatology and reports in the outbreak of dengue fever, four platelet concentrates/one unit of platelet apharesis was administered.  As the complainant was bleeding from multiple sites, two units of FFP was also given along with IV fluids and other supportive therapy.  At no stage there was any kind of medical negligence and he was treated according to the standard protocol.  It is alleged that no wrong treatment was given to the complainant as is alleged.  The complainant was being managed in the ICU and was looked after by a qualified ICU resident doctor who is well versed with critical care. It is alleged that special care was given in view of the dengue outbreak in the city and the hospital was geared up to take care of the menace.  It is alleged that the complainant was constantly monitored in the ICU by the ICU in-charge and under the supervision of the treating consultants. The complainant’s reports revealed severe life threatening thrombocytopenia, hemconcentration, mildly deranged prothrombin time, positive dengue serology suggestive of secondary or tertiary dengue infection.  The complainant also had polyserocytis (Right pleurl effusion, moderate ascites and gall bladder wall edema).  His clinical symptomatology and the complainant’s investigations were suggestive of Dengue Haemorrhage Fever. On the complaint of blurring vision, complainant was referred to senior consultant Ophthalmologist whose impression was intraoribtal/cerebral haemorrhage and had advised CT Scan Head and Orbit axial + coronal cuts thin sections and the complainant was accordingly treated. CT scan was done. Report was available by 10.00 AM on 06.10.2008. Upon considering the said report Neurologist was consulted. The case was also reviewed by senior consultant Ophthalmologist whose suspected impression was that patient had acute optic neuritis, vitereous haemorrhage as due to haze, no view was possible in Fundus Examination and had advised MRI orbit to rule out vitereous haemorrhage and Demyelinating Optic neuropathy. It is stated that MRI was got done on 06.10.2008 which revealed multiple micro-bleed both eyes. There was a subcutaneous edema in the bilateral eyelids with pathological thickening of wall of optic globes. The ophthalmologist team reviewed again on 07.10.2008. As there was no improvement in complainant’s vision, it was proposed to refer him to AIIMS for further management. On 07.10.2008 complainant’s platelet had improved to 120000 and his hemoconcentration had improved PCV 35.3 and the complainant was in stable condition except for his eyes. The ophthalmologist team again reviewed the complainant on 07.10.2008 and finding no improvement, the complainant was advised to be shifted to Dr. R.P. Centre for Ophthalmology Science for evaluation and management. At the OP hospital, the complainant was treated with compassion, human touch and was given best care. He was timely investigated and proper, timely references were taken. He was diagnosed as a case of “Dengue Haemorrhage fever with optic neuritis with several corneal haemorrhage” for which all possible treatment was provided to him.
9. Rejoinder is filed by the complainant denying the allegations of OP. The complainant has reiterated the contents of complaint.
10. In support of his case, complainant has relied upon various test reports conducted at OP hospital i.e. Annexure A-1 to A-17. MRI report annexed as Annexure –B, transfer slip issued to complainant by OP referring the complainant to Dr. R.P. Centre (AIIMS) for further evaluation and management i.e. Annexure –C, consultation record, treatment record of complainant of Dr. R.P. Centre for Ophthalmic Science and AIIMS i.e. Annexure D & E, prescription slips of Shroff Eye Centre annexed as Annexure –F, prescription slips of Patanjali Yogpeeth Haridwar annexed as Annexure–G, prescription slip of Mohan Eye Institute annexed as Annexure –H, prescription slip of Dr. Daljit Singh Eye Hospital annexed as Annexure –I, prescription slip of Sankara Nethralaya, Chennai annexed as Annexure –J, prescription slip of Centre for Sight, Delhi annexed as Annexure –K, application dated 31.05.2010  to Chief Minister for constituting a committee for examining allegation of medical negligence against OP, letter dated 01.06.2010 addressed to Principal Secretary, Health, Delhi with similar request as Annexure –L & M, disability certificate issued by Civil Surgeon, Panipat annexed as Annexure –P, original bills of treatment annexed as Annexure –Q-1 to Q-23.
11. OP has filed evidence by way of affidavit of Shri K.N. Gulati, General Manager (Admn) of OP and has exhibited treatment record of the complainant, as Ex. RW-1/1, copy of the relevant literature on dengue regarding consequential/associated complications as Ex. RW -1/2, copy of application dated 04.05.2012 filed by OP for taking on record the order of Delhi Medical Council on a complaint made by the complainant to Directorate of Health Services as Ex. RW-1/3, annexure to the aforesaid application marked as Annexure R-4, which is photocopy of order dated 27.04.2012 of Delhi Medical Council communicating order dated 21.02.2012 of the Disciplinary Committee as confirmed by it in its meeting held on 11.04.2012 as Ex. RW -1/4, copy of complainant’s complaint dated 01.06.2010 which was duly replied to together with the treatment record of the complainant and the comments of Ophthalmologist, a copy whereof is exhibited as Ex. RW-1/5.
12. Ld. counsel for the complainant has contended that complainant lost his vision due to negligence on the part of OP. It is contended that the specialist doctors were not called in time which had caused blindness to complainant. It is contended that blindness is not due to natural consequence of dengue as is alleged. It is submitted that Delhi Medical Council in its report dated 27.04.2012 Ex. RW -1/4has also given direction to hospital authorities to evolve a mechanism to improve communication between the treating doctor and the patient/patient’s attendants. The same also shows negligence/lack of care on the part of OP.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       
13. It is further contended that the opinion received from the expert committee constituted by the Dean, MAMC dated 03.01.2014 also shows that treatment for eyes was given on the next day i.e. 06.10.2008. It is contended that due to negligence and delay in providing treatment to the complainant, the complainant suffered permanent disability and is 100% blind. It is contended that the complainant has spent about Rs.5,00,000/- in OP hospital and thereafter he has taken treatment from various other eye centres and spent further amount on his treatment and his vision could not be revived. Ld. counsel for the complainant submits that the prayer made in the complaint case be allowed.
14. Ld. counsel for OP has contended that the complaint is bad for non-joinder of necessary parties. It is contended that concerned senior doctors who had treated the complainant have not been made parties in the present complaint as such complaint is not maintainable. It is contended that the allegation of negligence/wrong treatment/lack of care are not made out. It is contended that no evidence is placed on record by the complainant in support of the allegations made. Report of Delhi Medical Council Ex. RW-1/4 and report of Medical Board constituted by MAMC dated 03.01.2014 also do not support the case of the complainant. It is contended that optic neuritis is a known complication of dengue fever. It is contended that even if ophthalmologists were around and attended the complainant when he had started making complained about the diminution of vision, no amount of treatment could have controlled it. In support of the contention, ld. counsel has relied upon medical literature “Journal of Neuro-Ophthalmology, March 2005 – Vol.25 Issue I –pp51-52 on “Bilateral Optic Neuritis After Dengue Viral Infection”.  It is contended that qualified doctors had attended the complainant and best possible treatment was provided and no case of negligence/lack of care is made out.
15. We have heard counsel for the parties and perusal the material of record.
16. The preliminary objections raised by the OP that the complaint is bad for non-joinder of senior consultants has no force. In Savita Garg v. Director, National Heart Institute (2004) 8 Supreme  Court Cases 56, the Hon’ble Supreme Court has held that non-impleadment of treating doctor is not fatal to complaint. It is held that hospital cannot take shelter under the technical ground that the doctor concerned was not impleaded. The relevant portion of the judgment is as under:

 

“Once a patient is admitted in a hospital it is the responsibility of the Hospital to provide the best service and if it is not, then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, as the case may be, was not impleaded, therefore, the claim should be rejected on the basis of non-joinder of necessary parties. In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the Institution/ hospital than that of the claimant. The institution is private body and they are responsible to provide efficient service and if in discharge of their efficient service there are couple of weak links which has caused damage to the patient then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.”

 

17. No evidence is also placed on record by the OP that arrangement of OP hospital with senior consultants was on principal to principal basis as such it has no liability. There is nothing on record to substantiate the same, therefore, the said objection is rejected.
18. The other objection raised by the OP that the complaint is time barring also has no force. The complainant was referred by the OP hospital to Dr. Rajendra Prasad Centre for Ophthalmology Sciences at AIIMS on 07.10.2008 and complaint is filed on 27.07.2010, i.e. within the period of two years from the date cause of action arose. The complaint is therefore within the period of limitation as provided under Section 24A of the Act, as such the objection raised by the OP in this regard is also rejected.
19. On merits, it is admitted position that complainant was admitted in OP hospital on 04.10.2008 at 3.00 PM. As per medical record filed by OP i.e. Ex. RW-1/1(Page 28 of Annexure R-1) patient was brought to OP hospital on 04.10.2008 at 3.00 p.m. at casualty with history of fever since five days with chills and with rigors passing blood in urine, ghabraahat on sitting since 02 days. It is also admitted position that complainant reported blurring of vision on 05.10.2008 in the evening while being admitted in ICU of OP. It is also admitted position that no ophthalmologist visited the complainant on 05.10.2008, which was Sunday and also on the intervening night of 5^th/6^th October 2008. As per complainant his condition was critical in the intervening night of 5^th/6^th October 2008. It is also not disputed that on 06.10.2008 senior doctor/ophthalmologist i.e. Dr. Raj Anand visited the complainant at 7.00 AM, who referred the complainant for CT Scan. CT Scan was done on 06.10.2008 and the report was received at 12.13PM, which revealed focal hypodensities of left fronto parietal region near the convexity. CT Scan report Ex. RW-1/1 (page No.65 of Annexure R-1 filed by OP) is as under:

             

•  

Cerebellar hemispheres and brain stem appear normal fourth ventricle is normal in size and mid line in position.

 

Focal hypodensity left frontoparietal region near the convexity. Another ill defined hypodensity appeaers to be present in the left frontoparietal region more inferioly. These lesions have non-specific appearance. Cerebral parenchyma elsewhere shows normal attenuation values.

 

The lateral & third ventricles are normal in size and outline. No shift of midline structure is seen.

 

The CSF cisterns appear normal.

No evidence of intra cranial haemorrhage is seen.”

 

20. It is also admitted position that after the aforesaid report, Dr. Raj Anand, Ophthalmologist advised for MRI. As the said facility was not available in the OP Hospital, complainant was sent at Krystal MRI Scan & Diagnostic Centre -1 at Paschim Vihar on 06.10.2008 at 11.30 AM. MRI report Ex.RW-1/1 (page 66 of Annexure R-1) was available by 8.00 PM on 06.10.2008. The relevant portion of same is as under:

             

Impression:

 

Multiple microbleeds in the bilateral fronto parietal subcortical and periventricular while matter and basal ganglia.”

 

 

21. The admitted facts are that blurring vision was reported by the complainant on 05.10.2008 in the evening Dr. Raj Anand, Ophthalmologist came to see the complainant for the first time on 06.10.2008 at 7.00 AM. Nothing has been stated in the written statement as to why senior doctor/ Ophthalmologist was not called in the evening of 05.10.2008 or in the intervening night of 5^th/6^th October 2008 to examine the complainant when he had already reported blurring of vision. It is admitted position that treatment of eyes started for the first time at 7.00AM on 06.10.2008 by ophthalmologist Dr. Raj Anand and thereafter CT Scan was done. The report of CT Scan was received at 12.13PM. MRI was done in the evening and report was received at 8.00PM. It is admitted fact that after receiving the complaint of diminution of vision for 12-13 hours no eye specialist was called by OP. Even requisite tests and examinations for eyes started late.
22. In the context, as to what constitute medical negligence the Hon'ble Supreme Court in Martin F. D'Souza v. Mohd. Ishfaq, AIR 2009 SC 2049 has 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 straightaway liable for medical negligence by applying the doctrine of res ipsa loquitor. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost his dear in his lapse."

In the Bolam's case- Bolum v. Friern Hospital Management Committee, (1957) 1 WLF 582, it was held that:

"A doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view."

In Jacob Mathew v. State of Punjab & Anr. (2005) 6 SSC 1, the Hon'ble Supreme Court had concluded that:

"A professional may be held liable on one of two findings: either he was not possessed of requisite skill which he professed to have possessed, or he did not exercise reasonable competence in given case, the skill which he did possess."

In Achutrao Haribhan Khodwa v. State of Maharashtra, 1996 (2) SCC 634, Hon'ble Supreme Court held:

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

In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, certain duties of doctor were laid down, which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor.

 

23. Ld. Counsel for the OP has contended that blindness is a known complication of Dengue fever and has relied upon “Journal of Neuro-Ophthalmology, March 2005 – Vol.25 Issue I –pp51-52 on “Bilateral Optic Neuritis After Dengue Viral Infection” . We have gone through relevant material provided in this regard. The same is reproduced as under:

 

“A 20-year-old man was referred to Ramathibodi Hospital in February 2001 with a history of bilateral visual loss. Seven days before, the patient had presented to another hospital with a 3-day history of high fever and vomiting. Physical examination revealed high temperature, minimal cervical lymphadenopathy, hepatomegaly, and a positive tourniquet test. Laboratory examination revealed thrombocytopenia (platelet count 60,000/mm³). Viral infection with dengue hemorrhagic fever was suspected as the likely diagnosis. Two days later, the fever started to subside and the platelet count decreased to 30,000/mm³. He was treated conservatively with intravenous fluids, electrolytes, and glucose. No clinical evidence of hypovolemic shock occurred in this patient. Two days after the fever had subsided, the patient experienced gradual loss of vision in his right and OD. Physical examination at our hospital revealed a well-developed man without signs of acute distress. Temperature, blood pressure, and pulse rate were normal. The liver was palpable and a positive convalescent rash on extremities was found. Visual acuity was counting fingers OU. Pupils measured 3 mm in dim illumination and reacted normally to light. Extraocular motility was normal without pain.  Ophthalmoscopy revealed mild bilateral optic disc hyperemia with a flame-shaped hemorrhage at the fovea OD. Goldmann visual field tests demonstrated bilateral cecocentral scotomas (Fig. 1).  Retinal fluorescein angiography demonstrated no disc leakage.

 

Laboratory results included hemoglobin 15.3 g/dL, white blood count 6,310/mm³ (30%) polymorphonuclear cells, 52% lymphocytes, 14% monocytes, and 2% atypical lymphocytes), platelets 238,000/mm³, and elevated liver enzymes (glutamic-oxaloacetic transaminase 402 U/L, glutamic-pyruvic transaminase 529 U/L, y-glutamyltransferase 280 U/L). Coagulation studies were normal. Serologic analyses for syphilis (venereal disease research laboratory and fluorescent treponemal antibody absorption test) were negative. Lumbar puncture revealed clear and colorless cerebrospinal fluid with normal glucose, protein, cell count, and differential. A brain and orbit magnetic resonance imaging study demonstrated enhancement of both optic nerves.

 

The diagnosis of dengue infection was confirmed after IgM and IgG antibodies for dengue virus serotype I were detected in the serum.

 

The patient was treated with intravenous methyl-prednisolong 250 mg four times per day for 3 days, followed by prednisolone 60 mg/d slowly tapered over 4 weeks. Visual acuity improved gradually, being 20/200 OD and 10/200 OS after 1 month, and returning to 20/20 OU after 8 months. Over 18 months of follow-up, he has had no further ocular or neurologic symptoms. Visual acuity after 26 months remains 20/20 OU and color vision testing with Ishihara plates is normal.

 

Dengue or dengue hemorrhagic fever is a mosquitotransmitted viral disease that is endemic mainly in Southeast Asia and the Western Pacific region. The ocular manifestations include photophobia, retrobulbar pain, conjunctival congestion, subconjunctival hemorrhage, retinal vessel engorgement, and accommodative weakness (^1,2). Retinal hemorrhages and maculopathy are rare but have been reported to cause visual loss⁽³⁾.  Optic nerve ischemia can occur in survivors of dengue hemorrhagic fever after severe hypotension and circulatory failure ⁽⁴⁾. To our knowledge, this is the first reported case of bilateral optic neuritis associated with a dengue viral infection. As in many parainfectious cases with optic neuritis, profound loss of visual function occurred with nearly complete recovery.”

 

24. The relevant portion of journal discussed above is not supporting the case of OP in any manner. The case cited therein shows that a patient with dengue hemorrhagic fever had reported loss of vision The patient on being treated with intravenous methyl-prednisolone, had improved and had regained his vision.
25. In the present case on the morning of 6th October 2008 at 7.00 AM, Dr. Raj Anand, Ophthalmologist examined the complainant and started treating him with the aforesaid medicine i.e. methyl-prednisolone. By that time complainant had almost lost his vision. The aforesaid medicine was administered about 12 hours late i.e. when the complainant had almost lost his vision.
26. OP has not provided timely treatment to complainant. The same establishes lack of care on the part of OP hospital.
27. Ld. counsel for the OP has relied upon the order of the Delhi Medical Council (Ex. RW -1/4) dated 27.04.2012. The said order was passed on the complaint made by the complainant to Directorate of Health Services, which was referred to Delhi Medical Council for conducting an inquiry about the alleged medical negligence. The Delhi Medical Council through its Disciplinary Committee had perused the said complaint. It had also perused the medical records of OP concerning complaint and the written statement of concerned doctor having treated the complainant. The Disciplinary Committee gave an order dated 21.02.2012. Relevant portion of the said order is as under:

“In the light of the above, the Disciplinary Committee observes that the complainant was admitted with acute febrile illness with thrombocytopenia/ The complainant complained of diminution of vision in the late evening of 5^th October 2008. The complainant was seen at 5 a.m. on 6^th October 2008 by the ophthalmologist who noted VA as PL negative both eyes with no papillary reaction. The complainant was put on I/V methyl prednisolone keeping the possibility of optic neuritis in mind. The ophthalmologist saw the complainant again at 11.30 a.m. when the vision was still PL negative, the intraocular pressure was Right eye/Left eye 36/26 by non contact tonometer with epithelial oidema and defects. The complainant was also put on local steroid drops alongwith antiglaucoma drugs. The case was reviewed on 7^th October 2008 at 7.00 am again. The visual acuity was status quo and the corneal condition had deteriorated. In view of no improvement in the complaint’s eye condition, the complainant was referred to a higher centre. During the complainant’s stay at the said Hospital, CT Scan, MRI and neurological opinion were inconclusive. It appears that the complainant developed Bilateral optic Neuritis cause? Dengue alongwith super infection subsequently leading to phthisis bulbioptic neuritis is a known complication of dengue, though rare. The treatment given at the said hospital was a s per standard protocol.

 

It is therefore, the decision of the Disciplinary Committee that no medical negligence can be attributed on the part of the doctors of Sri Balaji Action Institute in the treatment administered the complainant Shri Tilak Sikri at Sri Balaji Action Institute. However, the hospital authorities of Sri Action Balaji Institute are directed to evolve mechanism to improve communication between the treating doctor and the patient/patient’s attendants.”

 

28. The aforesaid order was confirmed by Delhi Medical Council in its meeting held on 11^th April, 2012 and was sent to parties.
29. The contention of ld. counsel for OP is that reading the order of Delhi Medical Council (Ex. RW -1/4) no case for medical negligence is made out. We have gone through the aforesaid order including the report of Disciplinary Committee. It may be noticed that the delay in calling senior ophthalmologist and providing late treatment has not been considered by the Delhi Medical Council as well as Disciplinary Committee constituted by it. In these circumstances, aforesaid order is of no help to OP. Further, in the aforesaid report OP hospital is directed to evolve mechanism to improve communication between treating doctor and patient meaning thereby lack of care is there on the part of OP in treating the complainant.
30. OP has also relied upon the expert opinion given by Medical Board constituted by Maulana Azad Medical College dated 03.01.2014 to contend that no case of medical negligence is made against OP. The relevant portion of expert opinion is as under:

1. The complainant was suffering from Dengue Hemorrhagic Fever as evidence by clinical manifestations (gum bleedings, purpuric spots and hematuria) and by investigations such as the low platelet counts, increased haematocrit and positive IgM serology report. Patient also had the evidence of serosities as evidences by ultrasound abdomen report.

 

2. On reviewing the record, it is apparent that appropriate investigations were carried out at appropriate time which was deemed necessary in this case.

 

3. Ophthalmologic complications like optic neuritis (which can lead to blindness) are known to occur in dengue fever.

 

4. On scrutinizing the records, at no point it is felt that the patient is not given the appropriate treatment. In fact the standard treatment protocol was followed as evidences by the records in this case. For optic neuritis systemic steroids (methylpreddnisolone) was given at Balaji Action Medical Institute by the attending ophthalmologist.

 

5. The complaint of loss of vision which the complainant developed in the evening of 5/10/08 was well attended and the patient was seen at 7AM next morning by the ophthalmologist who kept the possibilities of intracerebral haemorrhage and optic neuritis and the treatment and the diagnostic modalities pertaining to both were addressed timely and adequately.

 

6. Patient was referred to RP Centre at AIIMS where he was diagnosed to have bilateral proptosis with corneal ulcer with intraocular infection with optic neuritis for which strong antibiotics were given both topically as well as systemically. Inspite of best efforts unfortunately the infective process could not be controlled which lead to blindness and shrinkage of the globe (phthisis bulbi) on both sides.”

 

 

31. The Medical Board constituted by MAMC though has observed that the complainant developed loss of vision on 05.10.2008 and was well attended at 7AM on the next date by the ophthalmologist. However, the effect of delay in treatment for eyes has not been considered by the Medical Board. It is also stated in the aforesaid expert opinion that steroids i.e. (methylprednisolone) was given at OP Hospital to the complainant. It may be mentioned that the aforesaid steroid was given on 06.10.2008 at 7.00 AM i.e. after 12 hours of complaint of loss of vision. The effect of the late administration of medicine has not been given in the expert opinion by the Board. In these circumstances, even the aforesaid expert opinion is of no help to OP.
32. In view of the above discussion, we find lack of care/negligence on the part of the OP in not providing treatment of eyes to the complainant at proper time. There is negligence on the part of the doctors/nursing staff in the ICU in not calling the senior doctor/ophthalmologist in time. Senior Doctor i.e. Dr. Raj Anand was not called on Sunday evening when the blurring of vision was reported by complainant. Even the said doctor was not called in the intervening night of 5^th/6^th October 2008. The treatment for eyes was started when the complainant had almost lost his vision. The internal bleeding had already started when complainant was admitted in the OP hospital. In these circumstances, treating doctors of OP hospital ought to have been more careful in treating the complainant. The delay in attending the patient in the hour of need is a negligence.
33. On the point of compensation, it may be noted that complainant has suffered permanent disability i.e. 100% blindness.  There is a disability certificate i.e. Annexure P issued by office of the Civil Surgeon, Panipat wherein it has been certified that the complainant has 100% permanent visual impairment. In any event it is admitted position that the complainant while getting treatment in the hospital of OP has become blind when he was referred to Dr. Rajendra Prasad Centre for Ophthalmic. As per material on record complainant has taken treatment from Dr. Rajendra Prasad Centre for Ophthalmic Sciences at AIIMS. On being referred by OP Hospital. Despite that he could not get any effective result. Further, in the hope of regaining his eye sight he has also taken treatment from various hospitals i.e. Shroff Eye Centre, Patanjali Yogpeeth, Haridwar, Mohan Eye Institute, doctor Daljit Singh Eye Hospital at Amritsar, Dr. RR-Rama Raja Gopal from Sankara Nethralaya from Chennai and also got treatment from Dr. Mahipal S. Sachdev from Centre for Sight at Delhi but his vision could not be regained.  All the medical documents of different hospitals i.e. Annexure F to Annexure K are on record. As per complainant he has spent more than Rs.5 lakh on his treatment. The material on record shows that due to lack of care in providing treatment, complainant has lost his vision and now complainant is a blind person and living a miserable life. There is lot of inconvenient, hardship, discomfort, frustration and mental distress to him. The darkness in his life can never be compensated for in monetary terms.
34. As per material on record, complainant was working as Production Manager in Raj Woolen Mills for the past 10 years and was getting salary of Rs.16,000/- per month. He was also doing overtime and thus was earning about Rs.23,000/- per month. Complainant is about 34 years old and besides his old aged parents, he has a wife and two minor children. As per him there is no other earning member in the family of the complainant and due to blindness he and his family are living in a very miserable condition. His father has also died during the pendency of complaint. It is stated that due to blindness one person is needed twenty four hours to look after him and for helping him in his daily chores. Complainant has placed on record documents of treatment from various hospitals which are annexed as Annexure F to K. Complainant has prayed for award of Rs.80 lakh i.e. Rs.5 lakh towards treatment, Rs.50 lakh for loss of eye sight and Rs.25 lakh on account of mental torture and agony suffered by the complainant.
35. There is no fixed yardstick to compute the compensation. We have gone through the various judgments of Hon’ble Supreme Court. The Hon’ble Supreme Court in number of cases has held that the computation would depend upon the facts of each case.
36. The Hon’ble Supreme Court in Nizams Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors. (2009) 6 SCC 1 held that;

We must emphasize that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.

In Balram Prasad Vs. Kunal Shah and Ors. (2014) 1 SCC 384, the Honble Supreme Court has again emphasized that it is the duty of the Tribunals, Commissions and the Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation.

In the case of ‘V. Krishna Kumar v. State of Tamil Nadu & Ors. III (2015) CPJ 158 (SC)” has observed the following:

“17.   The principle of awarding compensation that can be safely relied on is restitution in integrum. This principle has been recognized and relied on in Malay Kumar Ganguly v. Sukumar Mukherjee, III (2009) SLT 164 + (2009) 9 SCC 221 and in Balram Prasad’s case (supra), in the following passage from the latter:

“170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitution in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong (see Livingstone v. Rawyards Coal Co.).”

An application of this principle is that aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the paid and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event.”

 

37. No material is placed on record by the OP to rebut the earnings of complainant as are alleged. OP has also not rebutted the factum of complainant having taken treatment from various hospitals after being discharged from OP hospital. 
38. Considering the totality of the facts and circumstances of the case and also considering that the complainant suffered permanent disability i.e. 100% visual imp.airment which had made the life of the complainant miserable and dependent upon others, we award total amount of Rs.35,00,000/- (Rs. Thirty Five Lakh only) to the complainant which is inclusive of compensation, expenses incurred on medical treatment etc.  The payment shall be made to the complainant by OP within six weeks of receipt of the order.

17.         Complaint stands allowed accordingly.

18.         A copy of this order as per the statutory requirement be forwarded to the parties free of charge. Thereafter the file be consigned to Record Room.

 

 

(Justice Veena Birbal)

President

 

 

 

(Salma Noor)

Member

 

 

 

Tri