Bhajan Lal Gupta & Anr. v. Mool Chand Kharati Ram Hospital & Ors.
2000(1) CPR 70 (NC)
i) Consumer Protection Act, 1986 - Sections 2(1) (c) read with Sections 2(1)(o) and 2(1)(g) – Complaint against Medical Negligence-Patient admitted in Mool Chand Hospital -Treatment suggested in G.B.Pant Hospital – Not available due to non-availability of any bed-Whether complaint against G.B.Pant Hospital or its staff (OP.Nos.6,7,8,9) regarding medical negligence sustainable ?(No)
Held : Objections have been raised by some of the Respondents ,such as Respondent No.6, who states that there could be no case of medical negligence against him as he did not even see the patient nor he treated him at any time . Similarly ,Respondents Nos. 7,8 and 9 have taken the preliminary objections . We find that these objections are not without substance .The patient was never taken to Respondent No.7 , as such there could be no question of hiring its services and consequently there could be no question of deficiency of service there. Insufficiency of beds in that hospital is something which was beyond the control of either Respondent No. 6 or 7 or even 8 And 9. Further, the Respondent No. 6 did not at any time examine or treat the patient, as such, there was no hiring of services of Respondent No. 6 also, Grievance against Respondent Nos. 8 and 9 is not in the nature of a consumer dispute but is mainly in the nature of a public interest litigation which is beyond the jurisdiction of this Commission. For these reasons and in view of the admitted position that Respondent No. 6 never rendered any service nor did he examine, the patient, nor was there any hiring of services of Respondent No. 7, we find that no case is made out against these Respondents. Accordingly, the complaint against Respondent Nos. 6,7,8 and 9 is dismissed.
(ii) Law as to Medical Negligence - What is standard of care and duty that a medical practitioner owes to its patient? – Stated – (see Paras 8 to 12) – Case law and standard Text Books discussed.
Held : A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioner differs from doctor to doctor. The very 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 and the Court finds that he has attended on the patient with due care, skill diligence and if the patient still does not survive or suffers permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But 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 light of the statement of law set out hereinabove, the question as to whether there has been negligence on the part of any of the Respondent in treating the decreased has to be viewed.
The matter can be dealt with in three parts. One is the case against Respondent Nos. 1, secondly the case is against Respondent No. 5.
(iii) Consumer Protection Act, 1986- Section 2(1)(c) – Complaint about Medical Negligence against Mool Chand Hospital (OP-1), its Medical Superintendent (OP-2) and K.L. Chopra (OP-3) Dr. N.K. Chopra, Associate consultant in Cardiology and Medicine (OP-4). Dr. M.S.Gulati, Sr. Consultant Neurology (OP- 5) – Facts showing no negligence on parts of OPs 3 to 5 - Staff of Hospital found negligent - Hospital and its Medical Superintendent (OP – 2 ) held liable to pay Rs. 2 lakh as compensation to parents of deceased.
Held : The one of the tests of medical negligence is that some thing which is required under medical practice to be done was not done or what was done was contra indicated. At the same time, it is also a settled principal that a specialist is required to know the latest techniques for management of the patient and if he is ignorant about it, then he could be considered to be negligent in following his profession. It is nobodys case that there was some treatment which in those days was available for management of such cases which was either not suggested by the Respondent No. 5 or on which the Respondent No. 4 differed with him. However, the facility of plasma pherisis being not available in that hospital, nobody could do anything about its not being made available to the patient. An effort was certainly made by the Respondent particularly, Respondent No. 5 at the request of Respondent No. 4 to go out of his way to recommend, the case of the deceased to the G.B. Pant Hospital, Respondent No. 7, through the Respondent No. 6, who was in charge of the Neurology Department there and was Known to Respondent No. 5 (Para 18)
The only grievance of the complainant appears to be that they should have been referred to the AIIMS. It may be noted that the AIIMS or the Sufdarjung Hospital are opposite to each other and both will take the same time and then it was pointed out to the relatives of the patient that the Sufdarjung Hospital had this facility. The AIIMS is again a referral institute and patient had to be referred to it. That would have resulted in considerable loss of time. In Sufdarjung Hospital, without knowing any Doctor, they would first take the patient in the casualty / emergency, then refer it to the Specialists. It could have resulted in loss of precious time. It was on this account that apparently Dr. Chopra, Respondent No. 4 and the relations of the deceased requested for a letter of introduction from Respondent No. 5 which he gave. This is no case of medical negligence. In fact, the gesture of Respondent No. 5 in cooperating to this extent with the patients relatives without any allegation of motive or personal gain has to be appreciated. It is for these reasons that we are unable to find any substance in the allegation against the Respondent No. 5 and the complainants have failed to make out any case of medical negligence against this Respondent. Therefore, the complaint against Respondent No. 5 is dismissed.
Held however : it is most unfortunate that the condition of the patient went on deteriorating very fast. At one point of time i.e. before 11.30 a.m. the oxygen tube came out. That was noticed by the mother of the patient. She reported that matter to the nurse on duty who immediately called Doctors concerned on duty at that time and they tried to revive the patient. They tried to give the necessary emergency treatment. However, the condition of the patient did not improve and he succumbed to the ailment. In cases where the patient are restless it may happen at times that the tubes is/are pulled out. In this case also such a thing appears to have happened and on it being pointed out to the nurse she took the remedial measures of putting back the tube and also summoned the doctors for giving further treatment. In ICCU it is not expected that the relatives of the patient have to point out pulling out of the oxygen tube. Such a thing should be noticed by the staff on duty immediately. Unfortunately, the aforesaid lapse on the part of staff on duty turned out to be too expired. It is not the case of the Complainant that there was no Nurse present in the ICCU or that the Doctor did not turn up when summoned by the Nurse or that the necessary resuscitation measures were not taken. It is not acceptable that the staff on duty in ICCU should not notice the withdrawal of oxygen tube until this is brought to their notice by the mother of the deceased. It is also not clear as to what prevented the patient being not intubated prior to 11.30 a.m. It appears to be one of the cases where the progress of the disease was so fast that not much could be done to the patient and on account of non-availability of the facility of the treatment of plasma pherisis, that latest treatment could not become available to the patient in time.
Coming to Dr. H.K. Chopra, Respondent No. 4 who was the Doctor-in-Charge of this case under whom the patient was admitted, had transferred the patient immediately to ICCU where constant monitoring facilities were available and the patient was put on oxygen to relieve the breathing distress and when this Respondent found that there was need to consult a neurologist also, he after checking with the Resident Neurologist sent for Dr. Gulati, Respondent No. 5 for his opinion. Dr. Gulati, Respondent No. 5, also diagnosed that it was a serious case and that it needed further investigations and a specialized treatment, namely, plasma pherisis, which facility was not available in the Respondent No. 1 hospital and he suggested to Respondent No 4. that this patient should be put on plasma pherisis wherever that facility is. The Respondent No. 4 took him to the relations of the deceased who wanted the help of Respondent No.5 in getting an introduction to the hospital where this facility was available following, which he gave a letter of introduction to Dr. Mehandiratta, Respondent No. 6 who was the Neurologist at the G.B. Pant Hospital which was one of the hospitals having this facility. According to the practice of the hospital, Respondent No. 5 could not do anything further without being required to do so by Respondent No. 4 who was the Doctors incharge under whom the patient had been admitted. The Respondent No. 4 in fact, followed the suggestions of Respondent No. 4 had left detailed instruction with the Nurse on duty on the treatment to be followed. No authority has been brought to our notice wherein the treatment suggested was contraindicated nor is there any evidence or even allegation to that effect.
Looking to the fact of this case, we find that Respondent No. 2 had given detailed instruction to the staff incharge of ICCU. One of the important suggestions of Respondent No. 5 was that the patient be intubated. This suggestion was given between 9 and 9.30 a.m. and one would have expected action in this behalf immediately. No doubt the patient had been put on oxygen and was otherwise being monitored in ICCU, yet there were two very serious lapse one of the nurses not noticing that the oxygen tube had come out and the other of delay of about two hours in intubating the patient. There was also a further lapse on the part of the Nurse not being vigilant to ensure that the oxygen tube remained in place and if at all it is pulled out by the patient it was restored immediately. In cases of such grave and serious nature extra care vigilance is required and lack of it can have serious consequences as it did in the present case. As a rule, only serious patient after in ICCU and the staff is expected to be extra cautions. That level of caution should have been more particularly, when staff was attributed with the knowledge that the patient was deteriorating very fast. No one is sure as to whether the patient would have pulled through that crisis or even if he had survived, the damages already done by the said disease, which had progressed to effect the entire body within a few hours and was still progressing could be checked or reversed. But, the lack of extra vigilance, at least contributed to the acceleration of the end. There is no evidence to show that intubation would have saved the patient. But, such action may have helped in the treatment. This is most unfortunate that the disease progressed do fast that before the patient could be removed to any center where the latest treatment of plasma perasis was available the end came. No one can with certainly say if intubation in time would have saved the patient or at least prolonged his life until he could be taken to any other hospital where plasma pherasis facility was available. Nonetheless, such delays and lapse in not noticing the coming out of oxygen tube which was in a way life support system are serious matters for which the hospital administration cannot escape liability. Even if it is argued that there was no callousness on the part of the Respondent No. 4 who was the Doctor-in-Charge and who accepted the suggestion and recommendations of Respondent No. 5 and gave instruction to give effect thereto, it is difficult to overlook the lapses on the part of the staff in the ICCU unit. For that reason we feel that the hospital would be liable to compensate the Petitioners. Taking an overall view of the matter, we feel that ends of justice will be served if a sum of Rs. 2.00 lakhs is awarded in favour of the Complainant and against the Respondent No. 1. The Respondent No. 2 in his capacity as the Medical Superintendent will have the responsibility of ensuring prompt payment to the Complainants.
Held Finally : In the light of the above discussion, we cannot fasten any personal liability on either fasten any personal liability on either Respondent No. 3 and Respondent No. 4 Respondent No. 2 is only vicariously liable being the Medical Superintendent of the Respondent No. 1. But, the amount is paid within four weeks of this order the 1st Respondent will become liable to pay interest at the rate of 12% p.a. on the said amount from the date of this order till the date of payment. The Original Complaint id disposed of in the above terms.
Result: Complaint party allowed accordingly.
Important Points :
If appears to be one of cases where the progress of the disease was so fast that not much could be done to the deceased patient and on account of non-availability of the facility of the treatment of Plasma Pherisis, the latest treatment could not become available to the patient in time so Doctor-in-Charge or other Doctors of Hospital cannot he held guilty of medical negligence but it is difficult to overlook the lapses on the part of the staff of the ICCU unit of Hospital for which Hospital would be liable through its Medical Superintendent for compensation to parents of deceased to the tune of Rs. 2 lacs.
J.K. Mehra, Member – This complaint has been filed by the parents of deceased, late Vijay Kumar, who, it is alleged to have woken up on 27th June, 1992, at about 4.30 a.m. with the complaint that he could not move his legs and felt pain, they called a local Doctor who gave the initial diagnosis that the complaint was psychological. That time, late Vijay Kumar complained that his legs were almost dead and he was feeling very weak. At that point, the Doctor advised that the deceased be removed to hospital. Accordingly, the deceased was taken to the Hospital Respondent No. 1 at or around 6.30 a.m. and was admitted in the casualty. A lady Doctor examined him there and left saying that she will send for some another Doctor. About 10 minutes later, one male Doctor came from Neurology Department and examined the patient and took his ECG., temperature and blood pressure. While the Doctor was still examining the patient i.e. the deceased, he developed breathing trouble when an Oxygen mask was put on his face. But this was pulled away by the deceased saying that it was no help and was making his breathing more difficult. In the light of this, the said Doctor opined that the patient removed to ICU and got the patient removed to ICCU. The Doctor followed the patient to ICU, but not finding him there, located him in ICCU and got the patient shifted to ICU. In the meantime, the Doctor incharge, Respondent No. 4, Dr. H.K. Chopra , under whom the admission had been effected after being brought in by the elder son of the Petitioner, went to check up and examine the said patient. After examination, Dr. H.K. Chopra, Respondent No. 4. A Junior Doctor from the Neurology Department was also summoned as the deceased had developed breathlessness and complained of pain in other part of the body also and was restless. That Junior Doctor from the Neurology Department put some hand operated instrument in the mouth of the deceased to assist him in respiration for a minute or so. At that stage, Doctor H.K.Chopra, Respondent No. 4 opined that Respondent No. 5 Dr. M.S. Gulati, a Senior Consultant in Neurology should also be consulted and his opinion be taken. Dr. Gulati, Respondent No. 5 arrived and examined the patient at about 9.00 a.m. and after examination wrote out his diagnosis and prescribed medicines as under :
– 27 / 6 Seen the case.
Sudden onset of weakness of all four limbs since last night.
Previous history of attack of Weakness +/- in Feet x 6 months.
N. Ex. - Conscious but restless.
Pupil small, equal and react to light.
Fundus – Discs could not be focused, as he is Constantly moving eyeballs.
No apparent cranial nerve palsy.
Motor System – Total loss of movement of lower limbs except toes.
Motor System – 0 to 1 shoulder Girdle muscles
2-3 Distal muscles of upper arm.
KJ – –
Aj ++ ++
Upper limb jerks – depressed
Sensation - Normal
Sphincter - Normal
Acute Infective Polycurities
2. Hypopottasiumic Paralysis
3. ??? My. Gravis Suggest
– Fundus Ex. – without chemical Dilation or pupils 0 after that C.S.F. exam
– Methyl Prednisilon 500 mg. I / V in Drip over 6 hours
– Ryle tube
– Nilorally except allurdox get 3
– Tsp 6 hourly
– To consider plasma pharisis
– Careful watch for respiratory Distress. If so, intubate without delay.
Eray Chest Look for-Vital capacity
Xray C spine Blood Gases
Ampicillin 500 mg. 6 hourly
2. He was also of the view that it was a serious case and a new mode of treatment namely, plasma pherasis, should be tried. This facility, according to the Respondent No. 5 was stated to be available at G.B. Pant Hospital and the Safdarjung Hospital. He is alleged to have pointed out that he knew the Doctor-in-Charge of the Neurology Department at the G.B. Pant Hospital, as he had earlier worked in that very hospital and he gave them a letter addressed to Dr. M.M. Mehadiratta, which reads as under:
– Mr. Vijay Kumar aged 26 years has been admitted in Mool Chand Hospital today, with almost complete paralysis of lower limb and partial paralysis of upper limbs (since last night). Clinically he is a case of? Acute Ineffective Polyneuritis, ?? Hypopotassemic paralysis ??? Acute Myaesthenia Gravis. I shall feel obliged if you may consider him from the point of view of PLASMAPHERASIS. We can transfer the patient under your care if you plan for plasmapherasis.
He is conscious but restless. He has got mild respiratory difficulty.
– SHRI MOOLCHAND KHARAITIRAM HOSPITAL AND AYURVEDIC RESEARCH INSTITUTE LAJPATNAGAR III NEW DELHI – 24
DEATH SUMMARY OF MR. VIJAY KUMAR
Mr. Vijay Kumar, 24 years of resident of 4/9, Jalvihar, Lajpat Nagar, was admitted in ICCU on 27th June at 8.30 a.m. with the complaint of rapidly progressing weakness of body staring at lower limbs and upper limbs. Patient was restless and has total loss of movements and power of lower limbs and almost complete loss of power of upper limbs. The patient was straight away referred to Senior Consultant in Neurology Dr. M.S. Gulati. Soon after he was seen by him. The treatment was started immediately after admission with I.V. Dextose, Steroids and antibiotics cover. The treatment was based on clinical diagnosis of Acute Polyradiculoneuropathy of acute onset. (? Viral).
The diagnosis was confirmed by Senior neurophyscians who advised to continue the treatment. At 11.30 a.m. patient became restless and his respiration became laboured because of involvement of respiratory muscled. Patient was given. Subsequently patient had cardiac arrest for which cardiopulmonary resuscitation and other resuscitation measures were undertaken. In spite of intensive treatment the patient died at 1210 hrs on 27th June, 1992. The death occurred within four hours of admission because of acute fulminsant adrenative paralysis of the muscle of the body including respiratory muscles. The cause of death was acute Polyrasdiculoneuropathy (leading to cardiac respiratory arrest). The progonosis of the case were explained to the relatives of the case were explained to the relatives of the patient by me and Dr. M.S. Gulati.
Sd./ xxxxx Sd./xxxxx
Dr. H.K. Chopra Dr. M.S. Gulati
Associate Consultant in Cardiology and Medicine Senior Consultant Neurology
Mool Chand KR Hospital Mool Chand KR Hospital
Counter signed by
Dr. (Col. K.L. Chopra) Co-ordinator Cardiology & Medicine
Dr. (Major Gen), J.P. Bhalla
Medical Superintendent M.C. K.R. Hospital.
4. There is another death summary on record which is in hand writing reading as under:
Mr. Vijay Kumar, 24 years Male a resident of 4/9, Jalvihar, Lajpat Nagar, was admitted in ICCU on 27th June at 8.30 a.m. with the complaint of rapidly progressing weakness of body starting at 3 am today. The patient was restless and had total loss of movements and power of lower limbs with decreased power of upper lumbs. The patient was referred to Neurophsysician and to Anesthetist. His vidal volume was within normal limits at admission. At 11.30 a.m. patient became tachypeic and his resuscitation became laboured at 11.40 a.m. The patient was intubated and respiration with Ambu bag started. Subsequently, the patient developed. Subsequently reset. CPR started. Injc. Adrenative Injuc I/v and intracardiac. Injecsodabicarb and inj. Efcorlin given. The patients pupils were widely fixed and dilated and there were no dolls eyes movement. Cereneal reflexes was negative. In spite of all resuscitative measures patient could not be revived and was declared dead at 12.10 p.m. on 27-6-1992. The cause of death was fulminating Gullias Barse Syndromic c. cardiorespiratory arrest.
(Dr. Nandini Gupta)
Associate Consultant in Cardiology & Medicine
(Col. K.L. Chopra)
5. This is not in dispute that the deceased was suffering from acute ployradiculoneuropathy and within hours i.e. from the time he got up to the time of admission in the Respondent No. 1 the disease had progressed quite a lot and he was already paralysed in the lower limbs and that paralysis was traveling upwards and was interfering with the other functions of the body including breathing and functions of other limbs. According to the Complainants version Dr. Gulati, Respondent No. 5 saw the deceased only once. This position is admitted by Respondent No. 5 and his stand is that he was called by the Consultant under whom the patient had been admitted for his expert opinion. He, after examining the patient, gave his diagnosis and the three possibilities which were recorded in his diagnosis were also mentioned in his letter to Dr. Mehadiratta, Respondent No. 6 which were to be confirmed after the various tests suggested by Dr. Gulati, Respondent No. 5. From the treatment chart it appears that the treatment which was prescribed by the specialists was followed although the Complainant alleged that it was not followed meticulously because she alleges that at one time the oxygen tube had come out and it was only when she drew the attention of the Nurse, that it was put back. A short while later, the patient was intubated shortly after 11.30. At that time, the Nurse summoned the Doctor who restored to artificial respiration as the patient was unable to breathe. According to the mother of the deceased, the patient had died around 11.30 a.m., but according to the hospital records, death took place at 12.10 noon. The patient was given apart from oxygen and other aids to breathe, certain emergency medicines, such as cortisone . and also ampicilene. All through while the patient was in Respondent No. 1 he remained in ICCU eversince he was shifted from ICU to ICCU. That unit is stated to have the necessary equipment to intubate the patient and also the regular supply of oxygen.
6. Objection have been raised by some of the Respondent, such as Respondents No. 6, who states that there could be no case of medical negligence against him as he did not even see the patient nor he treated him at any time. Similarly, Respondent Nos. 7,8 and 9 have taken the preliminary objections. We find that these objection are not without substance. The patient was never taken to Respondent No. 7, as such there could be no question of hiring its service and consequently there could be no question of deficiency of service there. Insufficiency of beds in that hospital is something which was beyond the control of either Respondent No. 6 or 7 or even 8 and 9. Further, the Respondent No. 6 did not at any time examine or treat the patient as such there was no hiring of services of Respondent No. 6 also. Grievance against Respondent Nos. 8 and 9 is not in the nature of a consumer dispute but is mainly in the nature of a public interest litigation which is beyond the jurisdiction of this Commission. For these reasons and in view of the admitted position that Respondent No. 6 never rendered any services nor did he examine the patient, nor was there any hiring of services of Respondent No. 7, we find that no case is made out against these Respondent. Accordingly, the complainant against Respondent Nos. 6,7,8 and 9 is dismissed.
7. Coming to the role of other Respondents, let us first examine the legal position relating to cases of medical negligence. As to what is the standard of care and the duty that a medical practitioner owes to its patient, it will be appropriate to know some of the decisions of the Honble Supreme Court.
8. In Halsburys Laws of England, the question of negligence and duties owned to the patient has been dealt with on this basis of various precedent extracts wherefrom are reproduced hereunder.
22. Negligence : duties owed to patient. A person who holds himself out as ready to give medical(a) advise or treatment impliedly undertaken that he is proposed of skill and knowledge for the purpose. Such a 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 (b) A breach of any duties will support an action for negligence by the patient (c).
23. Degree of skill and care required. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the laws requires (d); a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way (e) nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, although a body of advise opinion also existed among medical men (f).
9. In Bolan v. Friern Hospital Management Committee, Lords Justice Me Nair, while briefing the Jury had directed: (i) a doctor is not 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.
Where there are two different school of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the other. American law; see 70 Corpus Juris Secumdum. Moreover, its seem that by American Law a failure to warn the patient of dangers of treatment is not, by itself, negligence libid. 971, prs. 48m).
In an earlier decision of this Bench in the case of Smt. Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors., (sic) an extract was quoted from Taylors Principle and Practice of Medical Jurisprudence – XIII Ed. which we consider it appropriate to reproduce here also: – I myself would prefer to put it in this way: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by responsible body of medical men skilled I that particular art.
Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advance in technique is also attended by risks.
10. Again in Roe and Woolley v. the Ministry of Health (sic). Lord Justice had stated thus: – It is easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Doctors, like rest of us have to learn by experience; and experience often teaches in a hard way.
In that case it was observed that, we must not look at a 1947 accident with 1954 spectacles – (emphasis supplied). But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for.