RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Complaint No. 06 of 2007
Raj Kumar Tiwari, adult, S/o late Shri Shiv Kumar
Tiwari, R/o Deo Nagar, Town Area Sheoli, Kanpur
Dehat, residing at present H.No.449, S-Block,
Yashoda Nagar, Kanpur Nagar. ..Complainant.
Versus
1- Union of India through Ministry of Railways,
New Delhi.
2- Sub Divisional Railway Hospital, (North Central),
Kanpur through its Chief Medical Officer.
3- Dr. Shobha Dayal, MBBS, DCH, Doctor in Charge,
Sub Divisional Railway Hospital, Kanpur.
….Opp. Parties.
Present:-
1- Hon’ble Sri Vijai Varma, Presiding Member.
2- Hon’ble Sri Raj Kamal Gupta, Member.
Shri R.K. Tiwari, the complainant himself present.
None for the OPs.
Date 3.1.2018
JUDGMENT
(Delivered by Sri Vijai Varma, Member)
This complaint has been filed by the complainant for awarding Rs.24 lacs as compensation for the loss of life of the deceased, Rs.5 lacs as compensation for sorrow and grief, Rs.2 lacs compensation for medical treatment and Rs.25,000.00 for legal expenses.
The case in brief, of the complainant is that the complainant's father Shri S.K. Tiwari retired in December, 1994 from the post of Divisional Engineer from the Indian Railways and was earning about Rs.20,000.00 per month. The OP no.1 floated a scheme for the retired persons to get the medical facilities and free treatment from the hospitals
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being run and governed by it, by depositing certain amount with the OP no.1. The complainant's father deposited a sum of Rs.11,000.00 with the OP no.1 on or about 16.10.2005 and became entitled to get free medical privilege from the OP no.1and 2. The father of the complainant felt some trouble in his breathing in December, 2005 and also pain in heart for which he went to the OP no.2 where he was given certain medicines for a month. On 13.1.2006, the father of the complainant got the same trouble repeated and therefore, he went to the hospital of the OP no.2 where he was advised to be admitted. Under the instructions of the OP no.2 & 3, the blood tests and ultrasound tests of the complainant's father were done on 13.1.2006 and 16.1.2006 by the OP no.4 & 5 and reports were sent to the OP no.2 & 3. Ultrasound report dated 16.1.2006 contained that "both kidneys are normal in size and Echoe pattern", while the blood tests showed Serum Creatinine to be 2.2 mg/100 ml indicating some problem in kidney. The OP no.2 & 3 informed the complainant about ultrasound report but concealed the blood tests report. No treatment for kidney disease was given by the OP no.2 and 3 and they had given heavy antibiotic medicines by way of injections which further damaged the kidneys of the patient. On 2.1.2006, a blood test of the deceased father was again made by the OP no.5, the report of which was given to the OP no.2 & 3. The OP no.2 & 3 did not give any treatment to the complainant's father for his kidney problem whereupon the Serum Creatinine increased from 2.2 mg to 4.6 mg within a
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period of 7 days only which was a result of heavy antibiotic injections given by the OP no.2 & 3. The OP no.2 & 3 directed the complainant's father to go to OP no.6 for certain tests which were done on payment of Rs.800.00. Thereafter, another blood test was done through OP no.5 on 23.1.2006 which showed the Serum Creatinine to be 5.9 mg. On 23.1.2006, the OP no.3 gave the information about all the 3 blood tests reports of the complainant's father to the complainant. The complainant requested that his father be referred to any other private or railway hospital for better treatment and also for dialysis if required but the OP no.2 & 3 denied to refer to any other hospital. Thereafter, the complainant took his father to Shri Ram Nursing Home in Kidwai Nagar, Kanpur where under the treatment of Dr. V.B. Srivastava, a blood test by Sneh Pathology was done, where the Serum Creatinine was found to be 5.8 mg. Despite proper treatment given by Dr. Srivastava, the condition of the father of the complainant did not improve and then he was taken to Kulwanti Hospital and Research Center, Kanpur where under the supervision of Dr. Santosh Kumar all efforts including dialysis were made but no improvement was seen and the Serum Creatinine increased upto 9.7 mg. The complainant was advised by Dr. V.B. Srivastava and Dr. Santosh Kumar that if this treatment would have been given in the initial stage, it was possible to reduce and control the increasing rate of Secum Creatinine but due to negligence of the OP no.2 & 3 it has reached a stage wherefrom it can not be reduced. Ultimately, the
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complainant's father expired on 12.2.2006. The death of the deceased father of the complainant was caused by the negligence of the OP no.2 & 3 and therefore, they committed deficiency in service. Therefore, the complainant should be awarded a compensation of Rs.24 lacs as compensation for the loss of life of the deceased, Rs.5 lacs as compensation for the sorrow and grief due to death of the deceased, Rs.2 lacs as compensation for medical treatment and harassment and a sum of Rs.25,000.00 for legal expenses.
Notices were issued to the OPs and OP no.1 to 3 submitted their WS mentioning therein that the patient was admitted in the hospital with complaint of breathlessness, fever with chills. He was advised by Dr. Padam Singh on 15.12.2005 but no TMT was done till 13.1.2006 at the time of admission. The treatment was started under the supervision of Dr. Padam Singh. Dr. Shobha Dayal was assisting him in the ward. In Loco Hospital, Kanpur, a well established pathology is there which is conducting all the investigations needed for the patient. besides, Loco Hospital has the facility of outsourcing of special pathological investigations to be done in patients, if required. The facility of USG was not there, so different USG were being done from the very established reputed private centers. The ultrasound of the abdomen of the complainant's father was done on 16.1.2006 which showed that both kidneys were normal. The blood investigations were done on 13.1.2006 where the Serum Creatinine were found to be 2.2 mg and there was gross infection found in
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the body in addition to increased creatinine and increased blood sugar. The relative of Shri S.K. Tiwari was clearly told about the investigations and prognosis of the patient. The case of Shri S.K. Tiwari was of DM with HTN. An investigation report showed that he was having gross infection in addition to uncontrolled BS and increased Serum Creatinine due to involvement of kidneys to which diabetic people are susceptible for. This problem further increased when the patient is having uncontrolled HTN or investigation or DM. In his case all the aggravating factors were present. The patient was efficiently managed with antibiotic which are quite safe in renal disease with other supportive treatment to reduce blood sugar and Serum Creatinine and fever and HTN. With the given treatment, the patient's BP and sugar were controlled, his fever was down and he was referred to LLR Medical College, Kanpur for cardiac evaluation on 20.1.2006. When the investigations were repeated and the Serum Creatinine was found increased at 4.3 mg then immediately his relatives were informed and advised for referral to Medical College, Kanpur for admission and management but they refused. At that time no private hospital was recognized by the Railways. Considering the progress of the patient, blood tests were repeated but patient's attendant did not wait for the reports and carried their patient to some private nursing home for treatment. The patient was not discharged from the hospital rather his relatives took him to some private hospital at Kanpur on their own and at that time patient's Serum Creatinine was
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4.3 mg. Even though the BP and blood sugar were controlled yet there was no control of Serum Creatinine level for which he was to be referred to CH/NDLS. There was no negligence on the part of the OPs in treating the patient and the complainant has filed false and fabricated complaint against the Union of India as well as the government doctors who discharged their duties in the Government Railway Hospital absolutely free of cost to the best of their abilities and capacity. The complaint is not tenable against the doctors working in government hospital who rendered their services without any financial burden upon the patient. Therefore, the complaint be dismissed.
The complainant has also filed replication against the written statement filed by the OPs no.1 to 3.
The complainant has filed his affidavit alongwith 16 annexures with it. He has also filed affidavit of Smt. Uma Tiwari wife of late Shri Shiv Kumar Tiwari.
Complainant was heard in person. None appeared for the OPs to argue the case. Perused the entire records.
In this case, it is not disputed that the complainant's father Shri S.K. Tiwari, as retired railway employee had opted for the scheme of retired persons to get the medical facilities and free treatment from the hospitals being run by the OP no.1 & 2 by depositing certain amount with the OP no.1. It is also not disputed that the complainant's father went to the hospital of the OP no.2 for treatment in January 13, 2006 when he was advised by the OP no.2 & 3 to be admitted. It is also not disputed that he was found to
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be suffering from renal disease. The disputed point according to the complainant is that the complainant's father was not treated properly by the OP no.2 & 3 whereby the kidney disease worsened and that the OP no.2 & 3 did not refer him to any other hospital for better treatment or also for dialysis and hence, even when he was taken to different hospitals of Shri Ram Nursing Home and Kulwanti Hospital, the patient could not survive. So the case of the complainant is that it is because of the improper treatment and negligence of the doctors of the OPs that the complainant's father's condition worsened and he died. So, the OPs have committed deficiency in service.
On the contrary, the case of the OPs is that the complainant's father was properly treated and there was no negligence on the part of the OPs in treating the patient. Therefore, they did not commit any deficiency in service.
So now it is to be seen as to whether the OPs were negligent in treating the complainant's father and therefore, they committed deficiency in service or not. If so, its consequences.
It is argued by the complainant that when the complainant's father's ultrasound and blood tests done on 16.1.2006 then in the ultrasound report his both kidneys were found to be normal in size and that the serum creatinine was 2.2 mg/100 ml in the blood tests report. So, it was clear that the complainant's father was suffering from kidney disease but the OPs no.2 & 3 did not pay any attention towards this problem and did not provide any treatment for kidney disease or for reducing serum
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cretinine and instead had given antibiotic injections whereby the kidney of the patient was further damaged. It is further argued by the complainant that due to heavy dose of antibiotic injections, the serum creatinine increased from 2.2 mg to 4.6 mg within 7 days only. The serum creatinine kept increasing as on 23.1.2006, it was found to be 5.9 mg. It is also contended by the complainant that he asked the OPs to refer his father to some other hospital but the OPs refused to do so saying there was no need to do that. Hence, the patient was taken away by the complainant firstly to Sri Ram Nursing Home on 25.1.2006 and thereafter, to Kulwanti Hospital on 28.1.2006 where despite treatment given by the doctors, the condition of the patient did not improve and finally the patient died on 12.2.2006. It is further contended by the complainant that Dr. Srivastava and Dr. Santosh Kumar of the aforesaid hospitals had advised that if proper treatment would have been given at the initial stage then it was possible to reduce and control the increasing rate of serum creatinine but according to the complainant due to negligence and deliberate inaction by the OP no.2 & 3, the deceased reached to such stage that it could not be cured.
So according to the complainant the OPs did not provide medicines or such treatment to his father that the kidney disease could be treated and his serum creatinine could have reduced. In this regard, it is contended by the OPs in their WS that the patient was properly treated by the doctors in the Loco Hospital and that on the blood test done on 16.1.2006 his serum creatinine was found to be
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2.2 mg and that as per the investigations done on 13.1.2006 his body was having gross infection in addition to increased serum creatinine. Since the complainant was a diabetic patient therefore, he was susceptible to kidney disease as it was a case of uncontrolled blood sugar. As the diabetic patient sooner or latter develop kidney disease as a natural course of disease and that the problem further increases when the patient is having uncontrolled HTN, infection or DM and that the patient was having all the factors at the time of admission. It is contended by the OPs that he was given antibiotics which are safe in renal diseases (ceftrixone) with other supportive treatment to reduce blood sugar and serum creatinine and fever and HTN. The patient's attendants were clearly informed about the investigations report and prognosis. With regard to referring the patient to some other hospital, it is contended by the OPs that there was no facility to refer the patient to any other private center or hospital, so they were advised for referral to GSVM Medical College, Kanpur to which his relatives refused. The OPs were planning to refer the patient to CH/NDLS after getting blood reports of the tests done on 23.1.2006 but before that the patient was taken away by his relatives to some private hospital at Kanpur. The blood pressure and blood sugar and infection were controlled but there was no control of serum creatinine level for which the patient was to be referred to CH/NDLS but the patient was taken by the attendants on their own risk to private nursing home where the condition of the patient could not be managed even after 20 days of
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treatment with facility of dialysis present over there which shows the severe nature of the disease. Therefore, it was wrong to say that they did not treat the patient properly. It has also been contended by the OPs that they discharged their duties in the government railway hospital absolutely free of cost to the best of their abilities and therefore, the complaint deserves to be dismissed. It is, however, argued by the complainant that it is because of improper and negligent treatment of the OPs that the disease of his father became so bad that it could not be cured subsequently, despite being taken to other hospital but the complainant is not able to pin point or to specify as to how the OPs were negligent or deficient in providing the treatment except on the basis of reports of serum creatinine which went on to increase and therefore, on the basis of that it is argued that no proper treatment was given to reduce the kidney disease therefore, the OPs were negligent. It is to be made clear here that there is no expert opinion to ascertain as to whether the OPs acted negligently in treating the complainant's father. Though it is argued by the complainant that Dr. Srivastava and Dr. Santosh Kumar of Sri Ram Nursing Home and Kulwanti Hospital had told him that had proper treatment be given to the patient at the initial stage then the patient could have been cured. But there is no affidavit of the aforesaid doctors nor any other credible documentary evidence to substantiate the allegations of the complainant. There is no medical evidence to conclusively prove that whatever treatment was given by the OPs, it was responsible for
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worsening of the condition of the renal disease of the complainant's father. The complainant cited the medical opinion of Dr. Bharat Mehrotra who has given his opinion that "any disease of chest, including breathlessness and chills never causes the kidney failure to a person suffering from the said disease of chest.
The normal value of the Serum Creatinine in the blood of a person is 0.40 mg/dl to 1.50 mg/dl and the value of serum creatinine being more that that is indication of serious kidney disease."
We fail to understand as to how this medical opinion is of any relevance for castigating the OPs as negligent in discharging their duties as the OPs themselves have stated that the seriousness of the kidney disease was divulged to the attendants of the patient and that they had provided treatment as was required for the treatment. It is argued by the complainant that the patient was not referred for the dialysis in private hospital etc. but in this regard it is the contention of the OPs is that there was no facility of dialysis in the hospital and hence, they had referred the patient for GSVM Medical College, Kanpur but the relatives of the patient on their own took the patient to some private hospital.
The complainant has cited the ruling 2008(2) CPR 30 (NC), Dr. B. Reghupathi and Another vs. B. Vasantha & Ors., wherein it is held that it was a case of res ipso loquitur as the doctors had failed to place endotracheal tube while administering general anaesthesia but the fact of this ruling are entirely different then the facts of the
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instant case as in the instant case the doctrine of res ipsa loquitur is of no avail as the circumstances do not speak that there was obvious negligence on the part of the doctors concerned. The complainant has cited the ruling of 2008(1) CPR 302 (NC), Tagore Hospital and anr. vs. Harnam Singh and anr., wherein also the facts are entirely different as in the instant case, the patient was taken away by the attendants themselves and he was not discharged by the hospital in as was the fact in the case cited above. Similarly, the ruling 2008(2) CPR 327 (NC), Rohini Hospital and anr. vs. P. Shashikala and ors. are also not applicable because the facts of the instant case are entirely different.
The fact is that in the instant case, as discussed above, there is no expert opinion, as is required in this case to pin point the negligence, if any of the doctors in treating the patient. Besides, in Kusum Sharma and other vs. Batra Hospital and Medical Research Centre and others, I(2010) CPJ 29 (SC), it has been held by the Hon'ble Supreme Court that:-
"On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basis principles emerge in dealing with the cases of medical negligence. While deciding whether the medical profession is guilty of medical negligence following well known principles must be kept in view-
- Negligence is the breach of a duty exercise by omission to do something which a reasonable man, guided by those
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considerations which ordinarily regulate
the conduct of human affairs, would do,
or doing something which a prudent and
reasonable man would not do.
- 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.
- 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.
- A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
- 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 of his conclusion differs from that of other professional doctor.”
In Jacob Mathew Vs. State of Punjab, III(2005) CCR 9 (SC), it has been observed that:-
"A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skill in that branch which he practices. A highly skill professional may be possessed
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of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
The test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds goods in its applicability in India."
From the aforesaid case law, it was incumbent upon the complainant to prove that on the basis of the principles laid down in the aforesaid cases, the OP doctors were negligent in performing their duties but the fact is that the complainant has not been able to conclusively prove that the OPs committed any negligence in treating the complainant's father. It is pertinent to mention that unless and until by any cogent evidence direct or indirect including medical expert opinion, it is not proved that the doctors treating the patient were responsible for negligence, the doctor can not be held guilty of deficiency in service. It is not a case of res ipsa loquitor. We find that no such credible cogent medical evidence is available whereby it could be discerned that the OPs were negligent in treating the patient therefore, the OPs can not be held guilty of committing deficiency in service, therefore, the complaint is liable to dismissed.
ORDER
The complaint is dismissed. Parties to bear their own costs.
Certified copy of the judgment be provided to the parties in accordance with rules.
(Vijai Varma) (Raj Kamal Gupta)
Presiding Member Member
Jafri PA II
Court No.2
