It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.[(2010) 3 SCC 480 It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. Facts: The complainant directly approached the NCDRC with the claim of Rs. 20,33,44,867/-. 1.1 That on 06.04.2015, in the morning, Complainant – Mr. Mohit Jain (for short, the ‘patient’) consulted Dr. Sanjeev Kumar (OP-2) at Max Super Specialty Hospital, Patparganj, Delhi (OP-1) (for short, the ‘Hospital’) for the complaints of fever, fatigue / bony pains, visible blood spots/bruises on both his arms & legs and recently had vomited with blood clot. The OP-2 prescribed few lab investigations viz. CBC, PBS, Urine Analysis, Urine Culture, Dengue Serology and Malaria. Few reports were available in the evening and same were informed to OP-2 on mobile. 1.2. It was alleged that the OP-2 enquired about Complainant's Insurance cover and upon determining it, he advised the Complainant to get admitted immediately through emergency and he shall visit hospital from 8pm to 8.30 pm. Accordingly, he got admitted in the hospital (OP-1) through emergency, where the provisional diagnosis of Viral Hemorrhagic Fever (VHF) was made. The platelet count was 10000 / cmm, which was critically low and other findings were suggestive of hemolytic anemia. 1.3. The patient was also examined by the Hematologist - Dr. Rahul Nethani (OP-3) and Dr. Mansi Sachdev (OP-4). The doctors, on 08.04.2015, arrived at the final diagnosis of Immune Thrombocytopenic Purpura (ITP) and reconfirmed hemolytic anemia. It was alleged that though he was admitted in Medicine Dept. and his primary consultant was OP-2, but having diagnosed as blood disorder, he should have immediately transferred to Hematology Dept. The OP-2 kept the patient under medicine with intention to raise the hospital bills. The doctors at OP-1 had allegedly been playing with his life. 1.4. It was further alleged that the patient’s stool for occult blood was positive for three occasions, but no steps were taken to check the GI bleeding and though the nuclear scan to check GI bleed was done, but patient was not examined by Gastroenterologist. The patient was scheduled to undergo for colonoscopy at 11.00 am on 20.04.2015 though his condition was deteriorating. Finally, he was transferred to Hematology Dept. on 20.04.2015. He suffered tonic seizures and became very critical. He was intubated and kept in ICU. It was alleged that Dr. Amit Batra (Neurologist) was not summoned in time and he came after 60 minutes to examine the patient. The Complainant suffered seizure before NCCT could be started. 1.5 The Complainant further alleged that during 13 critical days (from 8 - 20 April) doctors did not mention blood test reports in the progress sheet. The Peripheral Blood Smear (PBS) screening was negligently done and Schistocytes in PBS was not detected; therefore the diagnosis of life threatening Micro-Angiopathic Hemolytic Anemia (MAHA) was delayed. 1.6. It was further alleged that during his 29 days of hospitalization, the OP- 3made only 8 scattered visits and he was absent from the critical stages of diagnosis and treatment, but the billing was done for 39 visits. He further alleged that the hospital did not provide treatment summary despite repeated requests, therefore his wife was not able to take second opinion. He was forced to stay in confinement of OPs at their mercy. 1.7. For a long time he was under follow-up of Neurologist - Dr. Amit Batra at OP-1, who put the Complainant on anti-epileptic drugs for 6 months and medication for anxiety regularly which he was consuming even as on date. He consulted several doctors about his treatment and they have commented adversely on the correctness of final diagnosis of Thrombocytopenic Thrombotic Purpura (TTP) and the delayed treatment. During follow-up OPD visits, he was subjected to humiliation. The Complainant’s other allegations are that OPs were indulged in billing malpractices, double billing for doctor’s visits, billing for tests which were not done and he did not get proper response from the OPs. Complaints with The Chief Minister Delhi : 1.8 Thereafter, on 07.06.2015, he approached Chief Minister, Deputy CM and Health Minister of Delhi. He also approached various Govt. authorities like Director of Health Services (DHS) and Delhi Medical Council (DMC). The DGHS, in its report dated 07.11.2016, mentioned that the hspital and doctors were found indulged in unethical practices. The copy of report was sent to DMC on 20.12.2016, but the DMC passed non-speaking Order on medical negligence. The Complainant challenged the DMC Order by filing Appeal before the MCI. After huge delay, the hospital provided voluminous medical record about 657 pages to him on 25.02.2017. 1.9. The records were alleged to be different from those placed before the Govt. authorities. Therefore, fabrication, manipulation, interpolation of the medical record by OPs cannot be ruled out. The OPs failed to make differential diagnosis of TTP. There was no family history of TTP, but doctors told about the risk of inheritance to their children, therefore he and his wife (couple) suffered severe mental anguish and trauma. The Complainant raised the allegations of administrative issues, functioning of hospital, billing and malpractices. Being aggrieved, the Complainant filed the instant Complaint before this Commission, seeking overall compensation to the tune of Rs. 20,33,44,867/-. 2. Defense: 2.1 The hospital denied any negligence during diagnosis and treatment of the patient. It was submitted that OP-1 is a super specialty hospital and the doctors are qualified and experienced for more than a decade in their specialty of medicine and Hematology. The Complainant filed this complaint, which is devoid of the facts and it is based on assumptions and beliefs. 2.2 On 06.04.2015, the patient was admitted in night through Emergency under OP-2 in medicine dept. It was provisionally diagnosed as a case of Viral Hemorrhagic Fever (VHF). The laboratory investigations showed low Platelet count 10000/cmm and Hb was 12.3g%. The PBS did not show evidence of Schistocytes and hemolysis. The blood parameters were not deteriorated so fast as alleged by the Complainant. The OP-2 was a Senior Consultant in Department of Internal Medicine; he was competent to treat such cases. A reference was made to the hematologist Dr. Rahul Nathani (OP 3) who reviewed the case on 07.04.2015. The patient’s Platelet count was 30,000/cmm and on 08.04.2015 Bone Marrow (BM) Biopsy was done. 2.3. The differential diagnosis of Immune Thrombocytopenic Purpura (ITP) was made as ITP is a diagnosis by exclusion. The patient was treated on the line of UTI with secondary ITP. The differential diagnosis of VHF was also there. Hence steroids were not given. Therefore, in view of UTI with secondary ITP, it was the conscious decision of OP-2 to keep the patient in medicine dept. At that time there was no special need to transfer the patient to Hematologist. In the OP-1 hospital, the OP-3 was working as Consultant in Hematology & Bone Marrow Transplant with his team consists of Dr. Mansi Sachdev (OP 4) and Dr. Manoj who works on all days. All the in-patient are billed under the name of unit head (primary consultant), not for a single doctor. Therefore, the bill was shown under OP-3 as Consultant, though the OP-4 saw the patient. 2.4 On 09.04.2015 the patient suffered an episode of passing blood (occult) in stool; however it was denied that no Gastroenterologist (GI) saw the patient till 18.04.2015. The duty doctor has sent a referral request to GI dept. and on 10.04.2015 the patient was examined by GI team and ruled out frank bleeding. The team recommended Endoscopy in case of significant drop in Hb% or if there any frank GI Bleed. 2.5 On 17.04.2015, CBC picture was high TLC and the PBS showed myelocytes and metamyelocytes. Thus PBS was suggestive of leucoerythroblastic blood picture. The OP-3 suspected GI malignancy as all other common causes were ruled out by the investigation like ANA, CECT Chest & abdomen, Coombs test. The JAK2 test was ordered because of leucoerythroblastic blood picture. Patient’s blood samples were sent regularly in the morning to OP-1 lab for various tests. For Fibrinogen level - one of the special test, the sample was sent to laboratory at Max Hospital, Saket, the sample receiving was acknowledged by that lab at 12:22pm, it was shown as time of collection in the report. 2.6 On 20.04.2015 at around 9.30 AM, the patient developed neurological symptoms (irrelevant talking). The duty doctor and OP4 have seen the patient and noted the disorientation and hematuria. It was suspected as intracranial hemorrhage in view of low platelets with other bleeding manifestations like hematuria and GI bleeding. Immediate NCCT Head was advised and call was sent to Neurologist Dr. Amit Batra, who attended the patient immediately and arranged for NCCT. The patient, while shifting to the CT room, had an episode of seizure in triage. 2.7 The OPs denied that, at any point of time there was tampering with the records. On 20.04.2015, CBC was reported in morning and the Pathologist viewed the stained PBS slide at around 12.15 pm and noted presence of Schistocytes. The hematologist- OP-4 went to the lab and reviewed PBS and discussed the findings with OP-3. To confirm the RBC morphology, fresh blood sample was called again. There was no provision or category in billing for finger prick sample. 2.8 It was further submitted that the ‘ADAMTS 13 Test’ is diagnostic test for TTP. It was not available in India and expensive, costs around Rs 95000/- which needs about 45 days for reporting. However, its result does not change the line of treatment. The OPs discussed about the decision of not doing the test on financial ground with Complainant's wife, whom she duly agreed; it was recorded in the post discharge audio-visual recording.
3. Held : Observations and Reasons: 1. The NCDRC refused to reply on the expert opinion produced by the Complainant as the Complainant made specific queries and did not send entire treatment record to the experts and considering the possibility of half or incomplete information was given to the experts and/or suppression of material facts cannot be ruled out. The experts have, with good intention, replied to the emails of the Complainant, but none of the Expert was examined and thus, the email communications are not sufficient to hold the treating doctors for negligence or deficiency in service. The MD (Internal Medicine) can treat Immune Thrombocytopenic Purpura (ITP) 2. Another allegation of the Complainant is that though it was diagnosed as blood problem (hematology), the OP-2 should have immediately transferred him from Medicine to Hematology. It was not done in spite of his several verbal and written requests even marked as 'Urgent'. The Court held OP-2 was specialist in internal medicine, having experience and Hematology is an integral part of medicine, thus he can treat the patient of ITP. Thus, OP-2 was neither prohibited to treat nor it was mandatory for him to shift the instant patient to hematology. Moreover, if necessary, there was always inter departmental consultation or referral was possible in the OP-1 hospital. Thus, the OP-2 has adopted a reasonable approach for the patient’s care. This view dovetails from the case Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godbole[1996) 1 SCR 206], it was held by Hon’ble Supreme Court that if a doctor adopted a practice that is considered “proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong. Doctors must exercise an ordinary degree of skill. 3. Then moving to deal with TTP, the Court referred to carious Text Books. From the literature and text books, it is described that the course of TTP is rapid and fatal. Therefore proper diagnosis is important, because 90% mortality seen in untreated TTP patients, which can be reduced with prompt plasma exchange (PEX). About 50% deaths occur within 24 hrs of presentation. Thereafter, TTP was diagnosed on 20.04.2015 after the PBS findings of presence of Schistocytes, it was reconfirmed by the hematologist on calling fresh blood sample again. Then, the treatment for TTP was started with PEX. Thus, in my view there was neither delay nor failure to in diagnosis of TTP. 4. . The Executive Committee held that prima facie no case of medical negligence was made out against the OPs. The doctors at OP-1 arrived at the diagnosis in a reasonable period and treated the patient. The Executive Committee observed that the TTP is a rare disorder of 0.000006%[5]. The most common precipitating factor with ITP is viral fever which at times can result in prolonged thrombocytopenia. Such cases show spontaneous recovery as initially is suspicious of ITP. 5. It is pertinent to note that the Directorate of Heath also constituted a committee of three officers with the approval of Competent Authority to look-into the grievances of the complainant with specific concern to administrative and hospital related matters (other than medical negligence). The Committee based on factual position in the instant case, opined that there was double billing and the patient paid cost for number of times for the services not provided but billed. There was lack of proper, adequate and timely co-operation by hospital authority in providing case summary to patient / attendant for second opinion, there was lack of transparency in Attendance records. Whereas, in the instant case, it is reflected that there is inadequacy of the hospital management in keeping proper checks and balances. There was absence of inherent preventive measures in the system on the above-mentioned accounts which was unbecoming of being a responsive hospital administration and management. The Committee finally, under the signature of DGHS, directed in the notice to the hospital to take corrective actions within one calendar month from the date of receipt of the notice, failing which, action may be initiated against the Hospital as per Delhi Nursing Home Registration Act and Rules. 6. Conclusion: 1 The Commission held that from the record it is evident that there was no delay in diagnosis and treatment of TTP. The ADAMTS13 test was not available in India, and even as on today very few centers in India have such facility. 2. The patient was informed about high tests expenses and longtime for reporting. It is an admitted fact that, prior to starting PEX, the patient’s HIV and Hepatitis-B & C viral markers were not done. It was an act of omission from OPs. However, because of such omission, the patient did not suffer any injury or loss; but in fact, the PEX Therapy was beneficial. Therefore, OPs are not liable this act of omission. The NCDRC Refereed to famous judgment of Apex Court Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634, wherein the Hon’ble Supreme Court held that: “The skill of medical practitioners 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 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.” 3. In the recent judgment of the Hon’ble Supreme Court in the case of Chanda Rani Akhouri vs M.S.Methusethupathi Mithupathi (2021) 10 SCC 291it was held that: 27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. 4. In the instant case, it was held that , the standard medical protocol being followed by the OPs-2 to 4 to the best of their skill and with competence at their command. Thus, it is clear that out of ‘4 Ds’ the Complainant has proved only the ‘Duty’ of hospital and doctors, but failed to prove the other ingredients of medical negligence i.e. Dereliction/breach in duty of care and the Direct/proximate cause (causa causens). 5. The hospital is directed to be careful and meticulously look for systemic improvement in their functioning. 6. It was also held that mere averments/allegations cannot be taken as a gospel truth. The Complainant has not produced cogent evidence to prove his case. This view dovetails from the decision of the Hon’ble Supreme Court in C.P. Sreekumar (Dr.), MS (Ortho) vs. S. Ramanujam (2009) 7 SCC 130, wherein it was held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. It was held as under: “37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”
7. The Consumer Protection Act should not be a “halter round the neck” of the doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death. Reliance is placed on Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors.(2010) 3 SCC 480. 8 In conclusion, based on the findings of MCI, DHS and various medical literatures on TTP and respectfully following the precedents of Hon’ble Apex court, in my view, medical negligence is not conclusively attributable to the hospital (OP-1) and the doctors (OP-2-4). Administrative lapses costed Rs.1 lakhs for the Hospital ! 9 However, the findings of DGHS on the administrative lapses of the hospital can’t be ignored. The hospital is liable to that limited extent of administrative lapses. The hospital is strictly cautioned and directed to take necessary steps for systemic improvement. The Complainant has not produced detailed calculation of alleged excessive changes, therefore in the ends of justice, lump sum amount of Rs. 1,00,000/- (One lakh) will be just and reasonable compensation in the instant case. Accordingly, the Hospital (OP-1) is directed to pay Rs.1,00,000/- to the Complainant within 4 weeks from today, failing which the amount shall carry 9% interest per annum till its realisation. This judgment is an eye opener for the Hospitals and how they should be more cautious about avoiding administration lapses. The Doctor as followed the SOPs were saved from the clutches of Courts and Rs.20 Crore compensation .
Thanks and Regards
(Adv. ROHiT ERANDE) © |
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