NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI
FIRST APPEAL NO. 33 OF 2007
(Against the order dated 28.11.2006 in C.C. No. C-49/96 of theDelhi State Consumer Disputes Redressal Commission)
1. Orthonova Institute of AdvancedSurgery & ResearchT.C.M.L. House23, Pushp Vihar Community CentreNew Delhi-110062
2. Dr. V.K. SadhooSurgeonOrthonova Institute of AdvancedSurgery & ResearchT.C.M.L. House23, Pushp Vihar Community CentreNew Delhi-110062
3. Dr. J.S. DuaPlastic SurgeonOrthonova Institute of AdvancedSurgery & ResearchT.C.M.L. House23, Pushp Vihar Community CentreNew Delhi-110062
…Appellants
Versus
Nripendra Kumar ThakurS/o Late Shri Diwakar ThakurR/o D-6, Jawahar Park, Devli RoadNew Delhi-110062 …Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants:Mr. Rajeev Sharma, Advocate
For Respondent:Mr. C.B. Bhatt, Advocate
Pronounced on 1stMarch, 2013
ORDER
PER VINEETA RAI, MEMBER
1.This first appeal has been filed by Orthonova Hospital and its 2 doctors, Appellants No.1, 2 and 3 herein & Opposite Parties No.1, 2 and 3 respectively before the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) being aggrieved by the order of that Commission which had allowed the complaint of medical negligence filed against it by Nirpendra Kumar Thakur, Respondent herein.
2.In his complaint, Respondent had stated that he had taken his late father Diwakar Thakur (hereinafter referred to as the Patient) to the Appellant Hospital on 08.10.1995 at 9.30 p.m. for medical treatment following a roadside accident, in which his father was hit by a bus causing extensive injuries on his right thigh with compound fractures on the left tibia.On 09.10.1995 a surgery was conducted on the Patient, which lasted for nearly 3 hours, after which the Patient was shifted to Intensive Care Unit (ICU) without explaining the reasons for doing so to Respondent.On 11.10.1995 Respondent was asked to make an advance deposit of Rs.50,000/-, against which he deposited Rs.30,000/.Appellants also informed Respondent that the Patient’s over all condition was stable and improving steadily and that he would be discharged within 15 days.However, on 22.10.1995 at about 6.00 a.m. Appellants administered some painkillers to the Patient intravenously in the presence of the Respondent, soon after which he started experiencing severe breathing problems, shivering and his body started becoming bluish with swelling.On 23.10.1995 Respondent was asked to deposit another Rs.50,000/-, against which he deposited Rs.20,000/-.The Patient remained in the Intensive Care Cardiac Unit (ICCU) from 22.10.1995 till 30.10.1995, on which date he was shifted briefly to the General Ward and again sent to ICCU the next day.Patient was also prescribed a non-allopathic medicine Iruxol, which could not have been prescribed by allopathic doctors.On 04.11.1995 Respondent was informed by Appellants that one Dr. Goel had been called from Moolchand Hospital for expert consultations, who had advised for amputation of the injured legs but amputation could not be done due to the deteriorating condition of the Patient.Moreover, since the imported German medicine had been administered, amputation was not necessary.On 11.11.1995 Respondent was again asked to pay Rs.1,50,000/-, which he expressed his inability to do at short notice.Soon after, the staff and doctors from the ICCU informed the Respondent that his father had passed away and he could take delivery of the dead body only after settling the outstanding payments amounting to Rs.2,60,377/-.On 18.12.1995 Respondent wrote a letter to the Appellants requesting for supply of various documents pertaining to the Patient’s medical treatment because it had been hinted to him that right from the initial stages of the treatment the Patient had developed one problem after another and, therefore, instead of improving the Patient passed away.On not getting the required information, Respondent filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that the State Commission direct Appellants No. 1, 2 and 3 to jointly and severally pay the Respondent a sum of Rs.12,85,000/- as compensation alongwith Rs.50,000/- as cost and interest.
3.Appellants on being served filed a detailed counter reply denying the allegations of medical negligence and deficiency in service.It was stated that the Patient had been brought by the Respondent from All India Institute of Medical Sciences and admitted for better care in the Appellant Hospital in a critical condition, including bleeding, totally exposed bones from right lower thigh and knee, avulsed skin hanging from both the lower extremities with few skin tags as also fractures, following his being hit and run over by a bus.Patient was resuscitated and surgery done on 09.10.1995 as per standard procedure and the best medical practices by Dr. V.K. Sadhoo, a senior orthopedic surgeon, who had M.S., M.Ch. degrees in Orthopedics and was a well-known consulting surgeon in major hospitals.Patient was shifted to the ICCU, which is the normal practice in critical cases involving major surgery for better monitoring and care.Detailed medical records of the Patient were maintained indicating careful monitoring and treatment of his condition.He had breathing problems because of a past history of Tuberculosis and chronic chest infection.He was constantly checked to ensure that the wounds did not become gangrenous and on 18.10.1995 the necrosed tissues were removed and Split Thickness Skin Graft (STSG) was applied under local anaesthesia because he could not be administered general anaesthesia because of his critical condition.On 22.10.1995 breathlessness was observed with fall in blood pressure and extremities becoming cold and basal crepts were noticed in both lungs. The condition of the Patient deteriorated leading to Acute Respiratory Distress Syndrome (ARDS) due to flaring up of his old lung infection and the relatives of the Patient were kept in the picture about his prognosis throughout his treatment.As the condition of the Patient continued to deteriorate and amputation was not an option because of Patient’s critical condition and also since Respondent had refused to give consent for the same, although this was advised by Dr. Goel from Moolchand Hospital, the Patient was managed according to the best medical practices and in his best interest.It appears that the Respondent had filed the complaint with a malafide intention to escape payment of the outstanding bills of the Appellant Hospital.
4.The State Commission after hearing the parties and on the basis of evidence filed before it allowed the complaint by observing as under:
“23.It appears to be a case where resort to the conventional and conservative treatment which every doctor would do at the first instance in order to avoid the amputation of the limb was taken.But if the situation or condition of the patient deteriorates to such an extent that the infected areas are having extensive raw that they would spread to other parts of the body, it is the medical professional whose decision is final as it is the doctor who is the best judge as to what kind of line of treatment is to be provided to a patient whether to save his life or save his limb can be sacrificed but not other way round.In this case, if not on 05-11-1995 but at the most on 09-11-1995 the limbs should have been amputated even if there was no consent of the complainant or the attendants.
24.If this was the view of the OP that the amputation was not necessary inspite of having obtained expert view of Dr. Goel and there was persistent resistance by the complainant, nothing prevented the OPs to either ask the complainant to take the patient to some other hospital or to amputate the limb but keeping the patient in the ward without amputation of the limb was nothing but contribution towards accelerating or spreading of infection in the body that might have resulted in the death.If O.Ps. did not deem it necessary to amputate the limb on 05-11-1995 they should have at least done it on 09-11-1995 as the expert had already opined in favour of amputation.
25.There is no escape from arriving at the conclusion that O.Ps. are guilty of medical negligence as they did not do what they were, as per medical practice, and opinion of the expert were required to do.Had they saved the life inspite of there being no consent for amputation, they would have got absolved from the charge of medical negligence as there was a clinching evidence of opinion of expert in the field for amputation.
26.The plea that the complainant did not consent for amputation is the mitigating circumstance but in no way it can abjure the O.Ps. from the charge of medical negligence.Though we hold O.P. No.1 and O.P. No.2 jointly and severally liable but first charge for recovery will be that of O.P. No.1 where patient was taken.”
The State Commission, however, concluded that the use of non-allopathic medicine imported from a foreign country was not responsible for the deterioration of the Patient’s condition, as alleged by the Respondent.It, therefore, directed that a compensation of Rs.1 Lakh would meet the ends of justice in this case which should be made within one month.
5.Being aggrieved by this order, the present first appeal has been filed.
6.Learned Counsel for both parties made detailed oral submissions.
7.Learned counsel for the Appellants stated that Respondent had filed a complaint of medical negligence primarily on 2 grounds that (i) a non-allopathic medicine had been administered to the Patient, which could not be prescribed by allopathic doctors; and (ii) although amputation had been strongly advised by an expert doctor from another hospital to check the infection from spreading throughout the body, which ultimately led to the Patient’s death, Appellant doctors did not act on this advice.So far as the first allegation is concerned, counsel for the Appellants stated that Iruxol is a non-arsenic allopathic medicine and the State Commission had also concluded that Appellants were not guilty of medical negligence or deficiency in prescribing this medicine.Regarding the second allegation pertaining to amputation, counsel for the Appellants pointed out that from the medical records filed in evidence, it was evident that the issue of doing an amputation had been considered and discussed among the Appellant doctors but it was decided not to undertake this highly risky and major surgery taking into account the Patient’s critical condition at that time since his haemoglobin, blood pressure and other vital parameters were unstable and unsatisfactory and blood tests had indicated that he was resistant to almost all major anti-biotics.The State Commission further failed to appreciate that amputation was recommended by Dr. Goel because the limbs were not salvageable and not as a life saving measure.Apart from this, it is also a fact that the Patient’s relatives were not ready to give their consent to this surgery as clearly noted in the medical records of the Patient.Further, the medical records proved beyond doubt that the Appellants had given the best possible medical treatment and care as per standard procedures to the Patient right from the time of his admission when he was resuscitated and necessary orthopedic surgery successfully carried out.Unfortunately, because of his very serious injuries and pre-existing co-morbidities, which included a chronic chest infection and development of pulmonary embolism which is known to occur post surgery, he could not be saved.However, there was no medical negligence or deficiency on the part of Appellant doctors andhospital.
8.Counsel for the Respondent in his submissions denied that Respondent had not given his consent for amputation and pointed out that as stated in his complaint as well as in the affidavit before the State Commission, Respondent had approached the Appellant doctors requesting for amputation but Appellants declined to do so on the ground that in view of the German medicine, which was given to the Patient, amputation was not necessary.The recording in the medical history sheet by Appellants that Respondent did not give due permission was an interpolation made later on.Further, to cover up their own medical negligence a post mortem was not conducted, which would have clearly exposed that the Patient did not die because of pulmonary embolism but because of negligence on the part of the Appellants in not doing the amputation as strongly recommended by Dr. Goel of Moolchand Hospital because of which the infection spread throughout Patient’s body leading to Septicemia and death.The State Commission had, therefore, rightly held Appellants guilty of medical negligence and the present first appeal having no merit should be dismissed.
9.We have heard learned Counsel for both parties and have carefully considered the voluminous evidence on record.Patient’s admission in the Appellant hospital following severe injuries in a road accident is not in dispute since these are confirmed by the detailed notings made in the medical history of the Patient, which required his resuscitation and thereafter a surgery.Further, these records confirmed that the surgery was uneventfully conducted and the Patient was shifted to the ICCU for better monitoring and care and this does not indicate as contended by Respondent that Appellants were trying to hide something.From the medical records, we further note that Appellant doctors had also considered the possibility of amputation as advised by Dr. Goel but decided against it in view of Patient’s critical health condition at that time, apart from not getting the consent from his relatives.Clearly Patient’s blood pressure and haemoglobin count was very low and laboratory tests indicated that he was resistant to major antibiotics which would have made a surgical procedure highly dangerous.The Appellants using their best professional judgment justifiably decided against it.We also find substance in the contention of Appellants as confirmed by the medical history of the Patient that right from the time of his admission in Appellant hospital his condition was very carefully monitored and medical treatment advised by well qualified doctors using their best professional skills.Respondent on whom there was onus to do so has not been able to produce any credible evidence or medical expert to disprove or contradict these facts.Respondent’s contention that the case history sheets were fabricated and tutored, including the notings indicating that he had refused consent for the amputation, is also not proved by any credible evidence in support of the same.It is also on record and not refuted that the Patient had a pre-existing chronic chest infection and had been treated for Tuberculosis, which contributed to his developing the Acute Respiratory Distress Syndrome and subsequent death.
10.What constitutes medical negligence is now well established by a number of judgments of this Commission as also the Hon’ble Supreme Court of India and essentially three principles are applied; (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated(Bolam Vs. Friern Hospital Management Committee (1957)1 WLR 582).In the Bolam’s case (supra) it was also 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.The same view has been taken by this Commission as also the Hon’ble Supreme Court inKusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors. – (2010) 3 SCC 480.
11.Applying all the above principles in the instant case, we are not convinced that there is any medical negligence.Admittedly, the Appellant doctors, who are well qualified, had through diagnostic and clinical tests and using their best professional judgment and skills taken due care in the treatment of the Patient right from the beginning.Merely because one doctor had favoured amputation and Appellants for plausible and convincing reasons duly recorded did not agree with it does not in any way constitute medical negligence on their part.As stated earlier, Respondent on whom there was onus to do so has also not been able to produce any credible evidence, including a medical expert to contradict or controvert the above facts.
12.We are, therefore, unable to agree with the finding of the State Commission that the Appellants were guilty of medical negligence and set aside the same.The first appeal is accordingly allowed.No costs.
Sd/-
(ASHOK BHAN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBER
Mukesh