w w w . L a w y e r S e r v i c e s . i n



Qamar Jahan & Another v/s Dr. Nisar Ahmed Tyagi & Others


Company & Directors' Information:- A S NISAR AHMED AND COMPANY LIMITED [Active] CIN = U19201TN1996PLC034403

Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Consumer Case No. 102 of 2000

    Decided On, 17 December 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. DR. S.M. KANTIKAR
    By, PRESIDING MEMBER & THE HONOURABLE MR. DINESH SINGH
    By, MEMBER

    For the Complainants: T.V. George, Advocate. For the Opposite Parties: Anuj Handa, Dr. M.C. Gupta, Vikas Nautiyal, Advocates.



Judgment Text


Dr. S. M. Kantikar, Presiding Member

A. COMPLAINT:

1. Mr. Abdul Sattar (since deceased hereinafter referred to as ‘the patient’), an NRI from Australia, with his family members was on a visit to Muzzafarnagar, Uttar Pradesh from March 1999. On 07.05.1999, he developed symptoms of fever, nausea, loss of appetite and stomach trouble. He consulted Dr. Pramod Kumar Kuchhal. Thereafter on 10.05.1999 and 12.05.1999 he consulted Dr. M.K. Bansal. Both the doctors suggested some laboratory investigations and prescribed few medicines, but patient did not get relief. On 13.05.1999 at 6 am he approached Dr. Nisar Ahmad Tyagi (OP-1) who admitted him in Diwan Nursing Home (OP-2). The ultra-sonography (USG) was done and it revealed some problem in the gall bladder. The OP- 1 started treatment with antibiotics and intravenous (IV) fluids. The OP-1 did not seek any opinion from surgeon or any expert. The ECG revealed sinus tachycardia i.e. increased heart rate. It was alleged that in the OP-2 within a short span, 9-10 bottles of IV fluids were infused to the patient. Also, IV Ciplox and Chloramphenicol were given and later on added injection Monocef though the patient was afebrile. It was further alleged that though the patient did not show symptoms of either vertigo, nausea or vomiting and hyper acidity, the OP-1 administered drug Dramamine 50 mg and Aciloc. It was further alleged that the oxygen inhalation was given to the patient without proper equipment. The patient was made to sit in propped-up position which was an indication of cardiac and respiratory distress. OP-2 hospital did not maintain medical record, the progress chart of fluid intake and output. Despite repeated inquiry about the deteriorating condition of the patient, the OP-1 kept on assuring that the patient was alright. Thus, the OP-1 treated the patient in casual manner. On 14.05.1999 morning, OP-1 expressed his inability to diagnose disease. It was alleged that since beginning the patient was suffering from hepatitis, but OP-1 failed to diagnose it. Further, it was alleged that the condition of patient further deteriorated due to unwanted use of Valium. Therefore, Complainant no. 1 requested the doctor- OP-1 to discharge the patient as they wanted to take him to Apollo hospital, New Delhi. However, OP-1 was not willing to discharge the patient.

2. It was further alleged that OP-1 advised to admit the patient in Dr. M. Prakash Hospital (OP-3) at Meerut which had better treatment facilities. Therefore, on 14.05.1999 at 10.20 am the patient was taken to OP-3 hospital and admitted under care of Dr. Tanu Raj Sirohi and Dr. B. Chaudhary, who initially after examination of the patient, suspected it as a case of acute fulminant hepatitis. Further blood investigations were performed and again some more IV fluids were administered. Thereafter, condition of the patient further worsened. However, for further management the doctors in OP-3 hospital did not refer the patient to Apollo Hospital at New Delhi. OP-3 did not provide facility to transfer the patient to Apollo Hospital. Patient would have underwent life-saving liver transplantation and survived at the Apollo Hospital, New Delhi.

3. In all the allegations of the complainants are that, the OP-1 doctor was not punctual, he failed to diagnose the disease of hepatitis and kept the family members in dark about the condition of the patient, he was doing experiment on the patient. He did not refer the patient to Apollo Hospital, but wrongly referred to Dr. M. Prakash Hospital at Meerut (OP-3). The doctors at OP-3 hospital concealed and misinterpreted true facts about the condition of the patient. Even the doctors at OP-3 were negligent; there the Complainant no. 1 and her brother were kept in dark till the death of patient. There was better chance of survival, but the OP-3 failed to refer the patient to Apollo hospital despite aware of critical condition of the patient. The patient expired on 15.05.1999 at 6.40 a.m. It was alleged that, all the opposite parties acted recklessly. It was gross and wilful negligence (dereliction and breach of duty) as OPs failed to provide reasonable care to the patient, causing death of patient. Being aggrieved, the complainants filed a complaint before this Commission. Initially on 24.11.1999 at the time of filing the complaint ,the complainant restricted his prayer to claim Rs. 7.5 crore, however in 02.04.2015 complainant prayed enhanced compensation of Rs. 67,77,67,340/-.

B. DEFENSE:

4. Defense of Dr. Nissar Ahmed (OP-1) and Diwan Nursing Home (OP-2)

(1) Joint reply and the affidavit of evidence were filed by OPs 1 & 2.

(a) The preliminary objection raised was on maintainability of the complaint that it was a case of death of foreign national; therefore complainant was not a consumer under the Act 1986. There are more complicated issues involved in this case, which need voluminous evidence which cannot be adjudicated in the summary proceedings. The complaint is defective for non-joinder of the necessary parties. The death of the patient was due to the negligence of the Complainant-1 herself and in collusion with OP-3 and 4. The complainant tempered with the medical record and also tried to defend OP- 3 and OP- 4. There was no negligence on the part of OP 1 and 2 while treating the patient. The complainant did not demand for post mortem if there was suspicion of negligence causing death of her husband. It was an intentional and deliberate attempt by the complainant to destroy evidence in connivance with OP-3 and 4, who failed to inform the police about the death, they did not follow legal requirements for the final disposal of the dead body of NRI.

(b) It was further submitted that the patient was brought to Diwan Nursing Home (OP-2) in the morning on 13.05.1999 with the complaints of cough, fever and pain in upper left side of abdomen. The patient was a known case of rheumatoid arthritis (RA) for the last 10 years and hypertension (HTN) since 6 years. He was not taking any treatment. Since 8 days prior to the hospitalisation, the patient had been suffering from body ache, fever and cough and he took treatment from Dr. P. K. Kuchhal and from Dr. Bansal for fever and constipation.

(c) OP-1 examined the patient and advised USG, ECG and blood investigations. ECG revealed sinus tachycardia (increased heart rate). The USG diagnosis was ‘Acute Cholecystitis’. Based on the reports and clinical findings, OP-1 treated the patient as per the accepted standard practice. The doctor gave each and every update of condition of the patient to the complainant no. 1. The OP-1 denied about administration of 9 -10 bottles of IV fluids in the short span of 10 hours. Also, denied that the patient’s condition was continuously deteriorating.

(d) The patient’s attendants were impatient and they forcibly wanted to take the patient to Apollo Hospital at New Delhi. The patient was in OP-2 for about 24 hours, thereafter at the insistence of the patient’s attendants, on 14.05.1999 he was discharged LAMA and referred to the higher centre. At the time of discharge, the complainant no. 1 and the attendants took original copy of the treatment record including prescriptions, nursing home charts, progress report, ECG, USG, reference slips and discharge summary etc. The OP-1 denied that he referred the patient to OP 3 & 4 at Meerut. In the case sheet, it was clearly mentioned that OP-1 referred the patient to higher centre, but on the way the complainants themselves stopped at OP-3 hospital and got admitted.

5. Defense of Dr. M. Prakash Hospital Medicine Research Centre, OP-3 & Prakash Sunrise Health Care Ltd, OP-4:

(1) The OP-4 Prakash Sunrise Healthcare Ltd. is a company and OP-3 Dr. M. Prakash Nursing Home, is one of its unit situated in Meerut. Mr. Ravi Prakash, Chairman & Managing Director of OP-3 has field common written version and affidavit of evidence for OP-3 and 4. For the convenience we refer OP-3 in this case.

(a) The preliminary objection was about denial of medical negligence on the part of the OP-3 and 4 which are the corporate bodies. If at all any medical negligence occurred, it can be committed only by the treating doctors. The complainants did not array the treating doctors as necessary parties. The doctors gave best possible treatment at OP-3 hospital. The onus to prove negligence lies upon the complainants and they failed to discharge their onus.

(b) Patient was admitted in OP-3 in unconscious and very serious condition and diagnosed as suffering from critical disease i.e. Acute Fulminant Hepatic Necrosis with several serious complications. The complainant no. 1 signed various consent forms like Admission consent, Authorization of treatment to the doctors and the hospital, the consent about explaining the serious and fatal condition of their patient. The patient was in coma, with massive Hepato - Renal shutdown and metabolic encephalopathy with Multi Organ Failure (MOF). There were other serious medical complications, therefore emergency Liver Transplant could not be possible for such a critical patient.

(c) It was further submitted that the complaint is vague without any specific and clear allegations on the part of the OP-3 and OP-4. The patient was properly diagnosed and treated. On admission, the life-saving treatment was started and opinion from subject specialists were also taken. The patient’s wife and other attendants were informed about the seriousness of the disease. Two separate written consents (one in the morning and second in the evening) were taken for having explained about the life-threatening illness. The patient stayed in the hospital for short span of 20 hours and during that period, patient was attended by five specialist doctors. OP 3 and 4 in their support have filed an expert opinion by Dr. G. S. Vats. OP-3 further stated that the hospital was covered under errors and omissions policy. They were not running a service to provide ambulance or paramedical services. There is no expert opinion produced by the complainant.

(d) The complaint was liable to be dismissed at the very threshold as the complainant has wilfully and deliberately shown the income of the deceased as Rs. 30 lacs, whereas a careful perusal of the so called Income Tax Returns filed by the complainant would show that the deceased’s regular earning was only an amount of 6606 AUD per annum. The complainant has deliberately included the capital gains (income from sale of property) to his income, in order to enhance quantum of the claim and also to invoke the jurisdiction of National Commission.

C. ARGUMENTS:

6. Complainant’s argument:

(1) On the negligence of OPs no. 1 and 2:

(a) Learned counsel for complainant reiterated the facts and the affidavit of evidence. He further relied upon the expert opinion given by Dr. Roger Wiliams.

Learned counsel argued on following points:

(i) Dr. Nisar Tyagi (OP-1) failed to make proper diagnosis though the patient was not responding to his treatment. As per USG report it was diagnosed as acute cholecystitis, but for further management OP-1 failed to conduct basic blood test for liver disease and did not seek consultation from a surgeon.OP-1 failed to diagnose the disease as ‘hepatitis’, thus it was negligence. The learned counsel brought our attention to quoted portion from a book on Medical Negligence authored by Michael A Jones (South Asian Edition 2010). It was quoted under the heading “Failure to Spot Something Serious”. It is reproduced as below:

“In some cases, although the practitioner cannot be faulted for failing to identify the specific illness or disease from which the patient is suffering, the patient’s condition is so serious that he ought to have realised that either further tests were required for a more accurate diagnosis, or the patient should have been referred on to a specialist who was capable of making the diagnosis. In Dale v Munthali for example, the defendant diagnosed the patient as suffering from influenza, when in fact he had meningitis. It was held that there was no negligence in failing to diagnose meningitis, but the patient was so extremely ill that the defendant should have realized that it was more than gastro-intestinal “flu”.”

(ii) The OP-1 was rash and negligent because without symptoms of illusion, administered IV Valium and thereafter, the condition of patient started deteriorating rapidly. Drug Valium is contraindicated in the patients suffering from liver disease. The complainant produced an expert opinion from Professor Dr. Roger Williams. According to the expert, initial hepatic encephalopathy got precipitated by Valium administration. However, the report from board of experts of AIIMS is silent to comment on the Valium administration.

(iii) The OP- 1 failed to refer the critical patient to a speciality hospital. Patient’s condition deteriorated rapidly after administration of Valium. The complainant and her relative kept on requesting the OP-1 to refer the patient to Apollo Hospital at New Delhi, but OP-1 gave false assurances that the condition of patient was alright and will improve in short while.

(iv) OP-1 administered oxygen without proper instruments. The progress chart of the patient did not mention about the fluid intake or output. The counsel further denied that at the time of discharge from OP-2, the patient was in a conscious state with all vital parameters normal. It was not discharge against the medical advice (LAMA). Despite several requests OP-1 did not provide original copies of the entire treatment record to the complainant no.1. The OP-1 kept on giving medication on trial basis. Though the complainant no. 1 was kept on requesting the OP-1 to refer the patient to Apollo Hospital and to arrange an ambulance, but the OP-1 refused to provide any transport facility and asked the patient to take to Dr. M. Prakash Hospital (OP-3) at Meerut. The complainant no. 1 herself arranged one ambulance but on the way the patient became critical, therefore it was decided to stop at OP-3Hospital for arranging ambulance having oxygen facility and paramedical staff. However, at Dr. M. Prakash Hospital (OP-3), the attending doctors insisted that the patient be admitted there only, as OP-3 was well equipped and having best facilities.

(v) In this regard the learned counsel brought our attention to a paragraph from a book on ‘Medical Negligence’ by Michel Johns; it is reproduced as below:

“A doctor should always keep the diagnosis under review as the treatment progresses, and keep an open mind about the causes of the patient’s condition if it does not respond to treatment. The need to explore all the alternative diagnoses was especially important when it became increasingly evident that the original diagnosis may have been incomplete or erroneous. Where a doctor is unable to diagnose or treat the patient he will normally be under a duty either no seek advice from an appropriate specialist or refer the patient on to a specialist. If he attempts to diagnose or treat the patient himself he is, in effect, undertaking work beyond his competence, for which he will be held liable if harm results.”

(vi) With respect to the role of expert evidence, the learned counsel relied upon the decision of Hon’ble Supreme in Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee & Ors (2009) 9 SCC 221 at para 138 held as follows:

“138. Recently in Martin F. D’Souza v. Mohd. Ishfaq this Court laid down the precautions which doctors/hospitals, etc. should have taken, in the following terms:

“(a) xxxxx

“(d) xxxx

“(e) An expert should be consulted in case of any doubt.”

(vii) Failure to monitor vital signs of the patient:

The learned counsel submitted that the OP-1 had specifically instructed hourly recording of vitals in the patient’s progress chart, but it was not done and the fluid intake and output record also not maintained. In this regard the counsel brought our attention to the comments made by an expert Professor Roger William. The relevant comment is reproduced as below:

“Finally, I would add that the clinical records such are available on Mr Sattar are of poor quality in terms of serial recording of his clinical state particularly around the time when there was progression to hepatic encephalopathy and development of multi-organ failure.”

(extract from opinion of Professor Dr.Roger Williams at page no. 8)

The Counsel has put reliance upon the decision in case of Malay Kumar Ganguly vs. Dr.Sukumar Mukherjee & Ors. (2009) 9 SCC 221, the Hon’ble Supreme Court held in para 163 as follows:

“163. Further “vital signs” of a patient such as temperature, pulse, intake-output and blood pressure were not monitored. All these factors are considered to be the very basic necessary amenities to be provided to any patient, who is critically ill. The failure of Dr. Halder to ensure that these factors were monitored regularly is certainly an act of negligence.”

(2) On the negligence of OP-3 and 4:

(a) Learned counsel for the complainant argued on following points:

(i) Accepting the patient for treatment beyond their competence.

The counsel for complainant submitted by that when the patient was taken from OP-2 to Apollo Hospital at New Delhi, they stopped at the OP-3 Hospital to avail ambulance with oxygen facility and paramedical assistance for easy transit. However, instead of providing the facility the doctors at OP- 3 insisted to admit the patient in their hospital and assured about the availability of competent doctors to treat the patient with world class, fully equipped facilities. However, the doctors at OP-3 were aware that the patient was suffering from fulminant hepatitis with hepato-renal shutdown. The OP-3 did not have super specialist like hepatologist or gastroenterologist. The hospital has no specialised liver unit to treat such patient with fulminant hepatitis. Therefore, it was the duty of OP-3 hospital to provide paramedic assistance and oxygen cylinder, so that the patient could have safely reached in time to Apollo hospital at New Delhi.

(ii) The counsel further submitted that the OP-3 failed in its duty of care. He relied upon the decision of Hon’ble Supreme Court in the case of Laxman Balkrishna Joshi vs. Trimbak Bapu Godbole, AIR 1969 SC 128, it was held:

“11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.”

(3) Learned counsel further argued that the patient was not suffering from rheumatoid arthritis (RA) and hypertension (HTN). The counsel denied that complainant has misrepresented or tempered the record with malafide intention. Taking her husband (patient) to various hospitals was not negligence. The counsel denied that the post mortem (PM) was essential for the dead body of the foreign national for giving information to Embassy and SHO concerned. The counsel further denied that the PM was not insisted by the complainant to destroy the credible evidence. Counsel further submitted that all the OPs were intentionally prolonging the proceedings before the Commission to harass the NRI lady who lacks knowledge of Indian laws. In the instant case the medical negligence was apparent. And it was evident from the opinion of expert Dr. Roger Williams.

(4) The complainant filed brief synopsis of written arguments along with the following :

(a) following medical literature:

(i) Medical Negligence by Michael A. Jones (relevant pages).

(ii) Blood transfusion – kidney disease

(iii) Review Research Paper: “Critic and Sceptics of Medico-legal Autopsy Guidelines In Indian Context” J Indian Acad Forensic Med. October-December 2013, Vol. 35, No. 4

(iv) American Nurse Today

(v) ESPN guidelines on artificial enteral nutrition – Percutaneous endoscopic gastrostomy Clinical Nutrition (2005) 24, 848-861

(vi) Research Paper: “A prospective clinical study of incidence of hepatorenal and hematological complications in dengue fever and management of symptomatic bleed in Bundelkhand region of Northern India with fresh whole blood” Journal of Infectious Disease and Immunity Vol. 3(7). Pp. 124-133, July, 2011

(vii) Medicolegal Issues: Guidelines to Medical Officers

(viii) Merck Manual on Cholecystitis (Part – I, Vol. – 12)

(ix) Sinus tachycardia (Part – I, Vol. 13)

(x) Jaundice (Part – I, Vol. 14)

(xi) Haepetorenal shutdown (Part – I, Vol. 15)

(xii) Sepsis (Part – I, Vol. 16)

(xiii) Multi organ dysfunction syndrome (Part – I, Vol. 17)

(xiv) A copy of the Article Prevalence of Hepatitis E virus viremia and antibodies among healthy blood donors in India

(b) Citations:

(i) Balram Prasad vs. Kunal Saha & Ors. (2014) 1 SCC 384

(ii) V. Kishan Rao vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513

(iii) Malaya Kumar Ganguly vs. Dr. Sukumar Mukherjee & Ors. (2009) 9 SCC 221

(iv) Sarla Verma (Smt.) & Ors. vs. Delhi Transpiort Corporation & Anr. (2009) 6 SCC 121

(v) Spring Meadows Hospital & Anr. vs. Harjol Ahluwalia through K.s. Ahluwalia & Anr. (1998) 4 SCC 39

(vi) Sameera Kohli vs. Prabha Manchanda (2008) 2 SCC 1

(vii) Savita Garg vs. Director National Heart Institute (2004) 8 SCC 56

7. Arguments on behalf of opposite parties:

(1) Learned counsel for all the opposite parties made their submissions as stated in their respective affidavit of evidence. It was submitted that, allegations being very general which were neither supported by any medical opinion nor by medical literature. At the first instance, this Commission should have taken opinion from expert committee prior to the admission of the instant complaint. The counsel relied upon the decision of Martin F. D’Souza vs. Mohd. Ishfaq (2009) 3 SCC 1 wherein the Hon’ble Supreme Court observed that:

“We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer For a (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent.”

(2) Learned counsel for the OP -3 submitted that the complaint was filed, simply to blame for untoward incident to get some compensation. The doctors treated the patient reasonably and there was no deficiency or negligence during the treatment. The counsel relied upon Jacob Mathew vs. State of Punjab & Anr. 2005 (6) SCC 1 and Achutrao Haribhau Khodwa vs. State of Maharashtra (1996) 2 SCC 634.

(3) Argument from OP-1 and 2:

(a) Learned counsel for OP-1 and 2 made submissions as below:

(i) The Diwan Nursing Home (OP-2) is a primary care nursing home serving since 25 years in Muzaffarnagar. It is manned by well qualified and experienced specialist in all major branches of medicines. On 13-05-1999 patient came to OP-2 in very serious condition. Patient was suffering from pain in abdomen and cough. On examination patient had sinus tachycardia i.e. increased heart rate, tenderness in the upper abdomen. Accordingly, USG was advised. It was performed by the qualified radiologist, Dr. Ashok Kumar Gupta and it was reported as acute cholecystitis. Based on the findings was treated as per the accepted medical practice. He further submitted that if acute cholecystitis not managed on time, it can lead rupture of gall bladder and severe infection in the adjacent organs in the abdominal cavity.

(ii) The treatment usually involves hospitalization to stabilize the patient. The Counsel further submitted that, acute cholecystitis can be treated, (a) surgically by removal of Gall Bladder; or (b) conservatively by medicines to control the infection and pain etc. In the instant case, surgery was not the first option and therefore it was not advised. The patient was treated conservatively by the OP-1 with optimal doses of antibiotics and other medicines. There was no excessive dose of medicines administered as alleged. The patient’s wife and relatives were regularly updated for the condition of patient.

(iii) At the time of admission in OP-2 nursing home on 13.5.1999 the patient did not have any symptoms of jaundice, pale coloured stools or recent weight loss indicative of liver disease. Also, the USG report was not suggestive of Hepatitis. Therefore, it was the case of acute cholecystitis and at that stage there was no need to advise LFT or referral to hepatologist or any higher centre. The counsel submitted that most of the cases of acute cholecystitis usually settle within a few days or weeks and very rarely becomes critical or fatal due to some complications like perforation of gall bladder, cholangitis or pancreatitis. It was denied that huge amount was charged by OP-1 and 2, because in actual only Rs.600/- was charged. He further submitted that the complainant and her relatives were impatient. They forcefully insisted to take the patient to Apollo Hospital, New Delhi. Therefore, the patient was discharged from OP-2 on request (LAMA). The patient was never referred to OP-3 hospital or to any specific hospital but, OP-1 referred the patient to ‘higher centre’ and same was clearly recorded in the discharge summary as OP-2 was a primary care centre which usually do not provide ambulance.

(4) Learned counsel for OP-1 and 2 filed brief synopsis of written arguments along with:

(a) Medical literature of ‘Acute Cholecystitis’

(b) Citations:

(i) Jacob Mathew vs. State of Punjab and Anr. MANU/SC/0457/2005

(ii) Martin F. D’Souza vs. Mohd. Ishfaq MANU/SC/0225/2009

(iii) Mrs. Shantaben Muljibhai Patel and Ors. vs. Breach Candy Hospital and Research Centre and Ors. MANU/CF/0060/2004

(iv) G. Ravender Rao, Managing Director, Yashoda Super Special Hospital and Ors. vs. Shri Ghulam Dastagir and New India Assurance Co. Ltd. MANU/CF/0083/2013

(v) Dr. C.P. Sreekumar, M.S (Ortho) vs. S. Ramanujam MANU/SC/0702/2009

(vi) Raushani Devi vs. Maharaja Agrasen Hospital and Others MANU/CF/0800/2013

(5) Argument from OP-3 and 4:

(a) Learned counsel for OP 3 and 4 made submissions as stated in their affidavit of evidence. Counsel further submitted that on 15.05.1999 the patient was brought to Dr. M. Prakash Hospital (OP-3) at Meerut at 10.30 a.m. in serious condition. He was examined by Dr. T. R. Sirohi and laboratory investigations like blood sugar, urea, creatinine and the electrolytes were performed. The values of serum bilirubin was 6.5 mg/dl, serum aminotransferases were significantly high i.e. SGOT 1850 U/ml and SGPT was 3250 U/ml. The Australia Antigen (HBsAg) was negative. The patient was examined by a neurologist Dr. B. Chaudhary and recorded that the patient was drowsy with laboured breathing; there was a decreased jerk. As per history the condition deteriorated after 2 injections of IV Diazepam. Therefore, the clinical impression was made as ‘acute fulminant hepatitis leading to hepatorenal shut down’. Dr. B. Chaudhary’s clinical examination is recorded as below;

“Thanks for reference

Dr. B. Chaudhary MD, DM (neuro) has seen the case pt has presented with fever often: 7 days and sudden onset unconsciousness one day abn irritable behaviour.

H/o Deterioration of condition after 2-3 injects of IV diazepam

Clinical impression:

Pt drowsy Acute fulminant hepatitis

Laboured breathing Hepatorenal shut down

No evidence of meningeal Irritation Rx

All DTJ are down Inj. Soda-bicarcab 1 ampoule (25) IV 8 hourly

BJ TJ SJ KJ AJ are down (To be added after ABG report)

+ + + + + Rest condition same to as advised by Dr. T. R. Sirohi M.D. Adv.

B/L planters ate down 1 CT scan head (when pti condition permits)

Pupil B/L NSNR dolis eye 2. USG Abdomen movement

From ->E2 V2 M4 intact

(8/15) Repeat TLC DLC (Tomorrow)”

The counsel further argued that doctors explained the attendants of the patient about the poor prognosis. The patient was not in a condition to be shifted to Apollo Hospital for further management and liver transplant. Therefore, it was not negligence as the doctors at OP-3 treated the patient as per the standard practice.

D. FINDINGS AND DISCUSSION:

8. After going through voluminous medical record, the medical literature and the evidence from both the sides including the expert opinions filed by respective parties our discussion is as follows:

(1) Whether Dr. Nisar Ahmed Tyagi (OP No. 1) was negligent?

Admittedly as per the medical record, the patient was known case of rheumatoid arthritis. Before approaching OP-1, the patient took treatment (7.05.1999 to 12.05.1999) from Dr. Pramod Kumar Kuchhal and Dr. M. K. Bansal for fever, cough and body ache. However, patient did not get relief, therefore on 13.05.1999 at 6 am; the patient was taken to Dr. Nizar Ahmed Tyagi (OP-1) at Diwan Nursing Home (OP-2). The patient had complaints of cough and pain in abdomen. On examination the patient was afebrile, BP-130/80 mm of Hg, chest - clear, heart- normal and right hypochondrial tenderness. ECG revealed sinus tachycardia. We note that the ultrasound was done at Krati Ultrasound & Pathology Lab and it was reported by the qualified radiologist Dr. Ashok Kumar Gupta as ‘Acute Cholecystitis’. The patient was severely dehydrated, and therefore to correct fluid and electrolyte imbalance fluids were administered intravenously. For the infection i.e. acute cholecystitis IV antibiotics Chloramphenicol 500mg six hourly and Monocef 1g once a day were started. Aciloc was given to prevent gastric irritation. Simultaneously Oxygen inhalation, IV Deriphylin 1 ampoule and IV Lasix 1 ampoule 8 hourly were given. Patient was also given injection Dramamine 1 mg for vertigo, nausea. Therefore, in our view based on the clinical and radiological findings OP-1 had chosen to treat the patient conservatively, and treated with proper doses of antibiotics, antacids and other medicines. There were no signs of hepatitis and therefore, at the initial stage not advising LFT does not constitute medical negligence.

On 14.05.1999 in the evening OP-1 noted distension of abdomen and restlessness of patient and therefore for further management patient was referred to higher centre. In the referral letter OP-1 in his own handwriting wrote as ‘referred to higher centre for needful’. Thus it is clear that, OP-1 did not refer the patient to Dr. M. Prakash hospital (OP-3) or Apollo Hospital.

We do not find there was deficiency or negligence from OP-1 or OP-2 in the patient’s treatment and the referral. In our view it was reasonable duty of care as per standard of practice in the instant case.

(2) Whether OP No. 3 Dr. M. Prakash Hospital was negligent?

The patient was admitted on 14.05.1999 at 10.20 am in serious and unconscious condition from OP-2. The main physician Dr. Tarun Raj Sirohi diagnosed it as a case of acute fulminant hepatitis. The medical record of OP-3 hospital revealed that the patient developed icterus ++, and was in the state of delirium. The doctors at OP-3 immediately after admission gave Oxygen inhalation, IV fluids and antibiotics. The IV fluids were transfused under CVP monitoring. Blood investigations viz. LFT, haemogram, blood sugar, urea, creatinin and electrolytes with arterial blood gas (ABG) analysis were advised. The doctors explained the attendants of the patient about the poor prognosis. Based on the ABG report injection soda bicarb was also administered. The LFT report showed higher values as bilirubin 6.5 mg/dl, SGPT - 3250 U/ml and SGOT - 1850 U/ml. As there was renal shut down, injection Lasix was advised. Also, patient showed rhonchi in the lungs, therefore injection Deriphylline was given.

It is apparent from the medical record that at every stage the serious condition of the patient was informed by the doctors to the complainant and the attendants for which complainant had signed the consents and expressed her full satisfaction in the treatment at OP-3.It is relevant to look in to the written consents (two) given by the complainant at 10.20 am and 6.00 am on 14.05.1999. It establishes the information was given to the relatives of patient about serious condition of patient and poor prognosis. Both the consents are reproduced below:

“At 10.20 AM on 14.5.1999:

“WE (THE ATTENDANTS) HAVE BEEN EXPLAINED ABOUT THE CRITICAL CONDITION OF OUR PATIENT AND THAT WE HAVE ALSO BEEN INFORMED THAT THE PATIENT MAY DIE ANY TIME DURING THE TREATMENT. ALL RISKS HAVE BEEN EXPLAINED TO US. EVEN THEN WE ARE GIVING FULL CONSENT FOR TREATMENT TO THE DOCTORS AND HOSPITAL”.

“At 6:00 PM on 14.05.1999:

“OUR PATIENT MR. ABDUL SATTAR WAS ALSO EXAMINED BY DR. DINESH AGARWAL. HE HAS EXPLAINED ABOUT THE CRITICAL CONDITION OF THE PATIENT THAT OUR PATIENT IS SUFFERING FROM LIVER AND KIDNEY DISEASES AND HE MAY DIE ANY TIME. WE ARE FULLY SATISFIED FROM THE HOSPITAL AND DOCTORS SERVICES.”

We also note, the doctors at OP-3 had explained specifically that emergency liver transplant could not have been performed upon such a critical unconscious patient who was in coma, with massive Hepato-Renal Shutdown, with MOF (Multi-Organ-Failure) and other serious comorbidities. It should be borne in mind that, for liver transplantation, the liver cannot be made available off the shelf. It needs prospective donor(s) who have to be tested and cross matched beforehand for suitability and compatibility. It is time consuming process. Moreover, nothing was forthcoming from the wife of the patient or his relatives about willingness for liver donation.

We are of considered view that, the doctors at OP-3 hospital informed the serious condition of patient to the attendants and treated the emergency patient as per the standard procedure. Though the relatives were repeatedly told about serious condition and poor prognosis of the case, knowing fully the risks they chose to get treatment at OP-3.

(3) Expert Opinions:

(a) The parties on both sides have filed expert opinion in their support. The complainant filed opinion of Professor Dr. Roger Williams, United Kingdom dated 15.02.2017. The OPs filed an opinion from Dr. Vats and this Commission also sought opinion from the board of medical experts constituted at AIIMS, New Delhi.

The OPs raised the objections that Dr. Roger Williams had no experience of work in India or Indian subcontinent having vast difference in the healthcare facilities. He gave just a summary of case without going through entire medical record and same was prepared by the learned counsel for the complainant.

(b) Let us discuss each opinion:

(i) Expert opinion in support of Complainant – by Prof Dr. Roger Williams, CBE, Director, Institute of Hepatology, King’s College, London:

Dr. Roger William was a consultant physician since 1966 and worked as a Director of Institute of Liver Studies, Hepatology dept. The relevant part of opinion is reproduced as below:

“In the initial request to me from TV George, Advocate, on behalf of Mrs Sattar, he stressed the difficulty that Mrs. Sattar had had in establishing the cause of death of Mr Sattar on 15th May 1999 and whether his care had been adequate and in particular why he was not transferred to a hospital with specialist liver experience and facilities. These concerns had been considered by a medical board convened at the AII India Institute of Medical Sciences in November 2015 which had concluded that Mr Sattar’s care by Dr. Bansal and subsequently at the Dr M. Prakash Hospital in Meerut initially with diagnosis of acute cholecystitis and subsequently changed to acute liver failure was appropriate and without evidence of medical negligence.”

In Conclusion:

“Mr Sattar died of multi-organ failure from an acute hepatitis illness the cause of which was uncertain as he was not fully investigated. The care he received in the two nursing homes/hospitals to which he was admitted to, was of a poor standard. He did not have an acute cholecystitis and he should have been referred immediately to a hospital where specialist liver services were available for management of fulminant hepatitis and acute liver failure.”

(ii) Expert opinion by Dr. C. G. Vats in support of Opposite Parties:

Dr. C. G. Vats, Ex-Chief of ICU, Rajiv Gandhi Cancer Institute of Rohini, New Delhi opined on the basis of treatment record, the following on behalf of OPs:

Date: 14.07.2015

Xxxx

xxxx

OPINION-

“A– It is obvious that this patient had liver disease (acute hepatitis) as confirmed by high bilirubin and SGOT/SGPT levels. In this case it would fit in with the diagnosis of acute fulminant hepatitis because the patient developed unconsciousness / coma. In addition, he had anuria and high serum creatinine which add an element of renal failure to hepatic failure. Thus the diagnosis of this patient can rightly be labelled as “Acute fulminant viral hepatitis with hepato-renal shut down and multi-organ failure”. In the initial stages, doctors rightly kept in mind the possibility of cerebral malaria also.

“B– It is well known that mortality in “Acute fulminant viral hepatitis with hepato-renal shut down and multi-organ failure” is exceedingly high. Very few patients survive in spite of best efforts.

“C– There does not appear to be any evidence of medical negligence on the part of the hospital where the patient expired. There was nothing wrong in diagnosis or approach to planning of treatment or actual administration of treatment. Specialists were called to see the patient whenever necessary. A CVP line was put and 2-hourly recording of venous pressure was done. The patient came in anuria (lack of urine formation) which was managed to re-establish urine flow. The patient had hypovolemia when he was admitted but this was corrected as evidenced by the input-output chart and the CVP chart. No wrong or unnecessary drugs were given. Necessary investigations were done. Even CT scan of head was advised but the patient’s condition did not permit the same.

“D- It seems that the patient was initially treated as a case of heart failure in the previous hospital. This is clear from the fact that digoxin (Lanoxin) was given to him. This is a drug given specifically in cardiac failure.”

(c) Opinion from board of medical experts at AIIMS:

For the holistic and comprehensive approach to decide this case of alleged medical negligence, we deemed it appropriate to seek opinion from board of medical experts at AIIMS, New Delhi.

We have perused the opinion from AIIMS dated 30.11.2015. The board concluded as:

“Based on available medical records of history, examination, investigations, & treatment, Committee opines that initial diagnosis made by Diwan Nursing Home, Muzaffar Nagar of Acute Cholecystitis was appropriate. Patient was subsequently shifted to higher centre Dr. M. Prakash Hospital at Meerut. Patient was then diagnosed as Acute Fulminant Failure (now known as Acute Liver failure). Committee feels in light of newer development in patient’s condition, diagnosis of Acute Fulminant Failure was appropriate based on history, examination, investigation and findings. Treatment given as per charts is in consonance with treatment given for Acute Fulminant hepatitis in 1999. Acute Fulminant hepatitis is a clinical condition associated with high mortality even today.”

(4) Discussion on expert opinions:

This commission received opinion dated 30.11.2015 from AIIMS. Thereafter, vide order dated 04.02.2016 the learned counsel for complainant was allowed to file interrogatories to the medical board. The commission received the replies from the AIIMS medical board on 29.03.2016. Similarly, complainant filed expert opinion from Prof Dr. Roger Williams and replies thereof to the interrogatories answered by Dr. Roger Williams.

On careful perusal of expert opinion of Dr. Roger Williams and his replies to the respective interrogatories thereto, we are not convinced about the medical negligence. It is pertinent to note that the incidence was happened in year 1999 and at Meerut. The reasonability of treatment depends upon the circumstances like place/ facilities available in 1999 at Meerut. Dr Roger Williams never had experience of the medical practice in the Indian scenario. We are surprised to note in his conclusion mentioned that:

“He did not have an acute cholecystitis and he should have been referred immediately to a hospital where specialist liver services were available for management of fulminant hepatitis and acute liver failure.”

It is pertinent to note that, OP-1 based on clinical examination and USG report diagnosed it as a case of Acute Cholecystitis. Patient did not show any symptoms or signs of liver disease and therefore OP-1 did not advise LFT and felt no need to refer patient to hospital having specialist liver facilities. Therefore, conservative line of treatment was chosen initially to settle the patient’s health condition.

Secondly, the opinion from board of medical experts at AIIMS and the replies thereof to the interrogatories filed by complainant, make aptly clear that the treating doctors at OP-2 and OP-3 have treated the patient reasonably as per the standard of practice in the year 1999. If doctor chooses any accepted mode of treatment, it doesn’t amount to medical negligence. In the instant case initially, on 13.05.1999 the patient of Acute Cholecystitis was treated by OP-1 conservatively to settle the dehydration, pain and infection. The USG did not show signs of liver damage, but later on unpredictable complications of liver were developed for which OP-1 referred the patient to higher centre. We do not find there was delay in referring the patient. Referring the patient does not amount any negligence. Thereafter, in emergency serious condition patient was admitted in OP-3 and the doctors/ specialists therein treated the patient to save the life of patient. We find the hospital had adequate facilities like ICU and specialist doctors to handle emergency. The concept of duty of care illustrated by Hon’ble Supreme Court in L. B. Joshi’s case (supra) is squarely applicable here.

It was not a deviation from the standard of practice, if the doctor chooses any accepted mode of treatment. This view dovetails from the decision of Hon’ble Supreme Court in the case of Achutrao Haribhau Khodwa vs. State of Maharashtra, (1996) 2 SCC 634, wherein it was held as below:-

“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.”

(emphasis supplied)

The patient stayed in the OP-3 hospital for short span of 20 hours and as per the medical record, the patient was examined by five specialist doctors for 7 times. On 15.05.1999, patient’s blood pressure was falling down at 6.00 a.m and he developed sudden cardio-respiratory arrest. Lifesaving resuscitative measures were initiated immediately. Therefore, allegation of deficiency in service does not sustain in this case - the death of patient was due to multi-organ failure because of acute fulminant hepatitis.

Thirdly, according to Dr. Roger Williams, the patient was transferred from Diwan Nursing Home (OP-2) to Dr. M. Prakash Hospital (OP-3) in unconscious state and the patient was in hepeto-renal shutdown. The OP-3 hospital should have not attempted to treat and stabilse the patient, but they should have referred the patient to take some other hospital. In our view it is illogical and not acceptable because the prime duty of OP-3 hospital was to attend and take care of critical patient. Conversely it was act of omission, if the hospital fails to take care of such emergency. It is pertinent to note that Dr. Roger Williams’s opinion was in his private capacity, obtained by the complainant. However the bench deemed it appropriate to seek opinion from the board of medical experts at AIIMS, New Delhi. The board comprised of experts in various subject specialities having vast experience, gave the opinion and also replied to the interrogatories which were challenged by the complainant. We find the opinion was balanced. The medical board of AIIMS did not find negligence on the part of the treating doctors. The opinion from a private expert cannot have overriding precedent over a report given by an expert medical board from a premier medical institute in India i.e. AIIMS on the direction of this Commission.

(5) Medical Literature on the subject:

We have perused the medical literatures filed by both the sides. We also have gone through few standard medical books viz Harrison’s Internal Medicine (17th Ed), Anderson’s Pathology (10th Ed), Bailey & Love’s Short Practice of Surgery (26th Ed). Also perused few research papers on Fulminant Hepatitis , Acute Cholecystitis etc. Based on the information that Acute cholecystitis is swelling (inflammation) of the gallbladder. It is a potentially serious condition that usually needs to be treated in hospital.

Acute Cholecystitis:

The main symptom of acute cholecystitis is a sudden sharp pain in the upper right side of abdomen that spreads towards your right shoulder.

The affected part of the abdomen is usually extremely tender, and breathing deeply can make the pain worse. The clinical diagnosis of acute cholecystitis is traditionally based on the patient’s clinical presentation, and it is con?rmed by the imaging findings. Hence, the initial provisional diagnostic criteria for acute cholecystitis comprised: (1) clinical signs and symptoms, (2) laboratory data, and (3) imaging ?ndings (USG,CT etc). For treatment of acute cholecystitis, patient needed hospitalisation.

The tests for the patient in hospital include:

Blood tests to check for signs of inflammation in the patient’s body

An Ultrasound Scan (USG) of abdomen to check for gallstones or other signs of a problem with your gallbladder

Other scans like X-ray, Computerised Tomography (CT) scan or Magnetic resonance imaging (MRI) may also be carried out to examine your gallbladder in more detail if there is any uncertainty about your diagnosis.

Initial treatment for acute cholecystitis will usually involve in the emergency room is usually intravenous antibiotics, hydration, and analgesia. With this initial treatment, the inflammation often settles down.

The treatment comprised of:

* Nil by Mouth (NBM)- fasting (not eating or drinking) to take the strain off your gallbladder.

* Receiving fluids through a drip directly into a vein (intravenously) to prevent dehydration.

* Taking medication to relieve your pain, for suspected infection also be given antibiotics. These often need to be continued for up to a week, during the hospitalisation.

MEDICAL THERAPY Although surgical intervention remains the mainstay of therapy for acute cholecystitis and its complications, a period of in-hospital stabilization may be required before cholecystectomy. Oral intake is eliminated, nasogastric suction may be indicated, and extracellular volume depletion and electrolyte abnormalities are repaired. Meperidine or nonsteroidal anti-inflammatory drugs (NSAIDs) are usually employed for analgesia because they may produce less spasm of the sphincter of Oddi than drugs such as morphine. Intravenous antibiotic therapy is usually indicated in patients with severe acute cholecystitis, even though bacterial superinfection of bile may not have occurred in the early stages of the inflammatory process.

SURGICAL THERAPY The optimal timing of surgical intervention in patients with acute cholecystitis depends on stabilization. The clear trend is toward earlier surgery, and this is due in part to requirements for shorter hospital stays. Urgent (emergency) cholecystectomy or cholecystectomy is probably appropriate in most patients in whom a complication of acute cholecystitis, such as empyema, emphysematous cholecystitis, or perforation is suspected or confirmed. In uncomplicated cases of acute cholecystitis, up to 30% of patients fail to resolve their symptoms on appropriate medical therapy, and progression of the attack or a supervening complication leads to the performance of early operation (within 24 – 72 h). The technical complications of surgery are not increased in patients undergoing early as opposed to delayed cholecystectomy. Delayed surgical intervention is probably best reserved for (1) patents in whom the overall medical condition imposes an unacceptable risk for early surgery and (2) patients in whom the diagnosis of acute cholecystitis is in doubt. Early cholecystectomy is the treatment of choice for most patients with acute cholecystitis.

(extracted from Harrison’s Principles of Internal Medicine, 17th ed, Vol 2, pg 1996,97)

Thus, Surgical intervention i.e. Cholecystectomy is needed in order to prevent recurrence of acute cholecystitis and reduce risk of developing potentially serious complications, the removal of gallbladder will often be recommended at some point after the initial treatment. However, the vast majority of patients present with less severe forms of the disease. In these patients, the major practical question regarding management is whether it is advisable to perform cholecystectomy at the time of presentation in the acute phase or whether other strategies of management should be chosen during the acute phase, followed by an interval cholecystectomy.

Complications of acute cholecystitis include gangrenous cholecystitis (gangrene of the gallbladder wall), gallbladder perforation (hole or piercing of the wall of the gallbladder), and emphysematous cholecystitis (acute infection of the gallbladder caused by gas-forming organisms). These complications occur in up to 20% of people with cholecystitis, have high mortality associated with them, and therefore require emergency surgery.

Acute Viral Hepatitis ( Fulminant):

Acute Fulminant Hepatitis causing liver failure is a rare and severe consequence of abrupt hepatocyte injury, and can evolve over days or weeks to a lethal outcome. A variety of insults to liver cells result in a consistent pattern of rapid-onset elevation of aminotransferases, altered mentation, and disturbed coagulation. The absence of existing liver disease distinguishes acute liver failure from decompensated cirrhosis or acute-on-chronic liver failure. Causes of acute liver failure include paracetamol toxicity, hepatic ischaemia, viral and autoimmune hepatitis, and drug-induced liver injury from prescription drugs, and herbal and dietary supplements. Diagnosis requires careful review of medications taken, and serological testing for possible viral exposure. Because of its rarity, acute liver failure has not been studied in large, randomised trials, and most treatment recommendations represent expert opinion. Improvements in management have resulted in lower mortality, although liver transplantation, used in nearly 30% of patients with acute liver failure, still provides a life-saving alternative to medical management.

In fulminant hepatitis, the goal of therapy is to support the patient by maintenance of fluid balance support of circulation and respiration, control of bleeding, correction of hypoglycaemia, and treatment of other complications of the comatose state in anticipation of liver regeneration and repair. Protein intake should be restricted, and oral lactulose or neomycin administered. Glucocorticoid therapy has been shown in controlled trials to be ineffective. Likewise, exchange transfusion, plasmapheresis, human cross-circulation, porcine liver cross-perfusion, porcine liver cross-perfusion, hemoperfusion, and extra corporeal liver-assist devices have not been proved to enhance survival. Meticulous intensive care that includes prophylactic antibiotic coverage is the one factor that does not appear to improve survival. Orthotopic liver transplantation is restored to with increasing frequency, with excellent results, in patients with fulminant hepatitis.

(extracted from Harrison’s Principles of Internal Medicine, 17th ed, Vol 2, pg 1946)

Based on the medical literature, the OP-1 made a diagnosis of acute cholecystitis on the basis of clinical examination and USG study. Patient had no symptoms of hepatitis, therefore hepatitis was not suspected at that time and LFT was not advised or LFT was not mandatory. The prime concern was to treat the acute abdomen-cholecystitis.

(6) Reference to various precedents:

All along and till date, the law laid down in Bolam's case is consistently followed by all the Courts all over the World including Indian Courts as laying down the correct principle of law on the subject of medical negligence. In Bolam vs. Frien Hospital Management Committee (1957) 2 All ER 118, (i.e. Bolam’s Test)- McNair, J. summed up the law as under:

"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent."

This decision has since been approved by the House of Lords in Whitehouse vs. Jordon (1981) 1 All ER 267 (HL); Maynard vs. West Midlands Regional Health Authority (1985) 1 All ER 635 (HL); and Sidway vs. Bathlem Royal Hospital (1985) 1 All ER 643 (HL).

A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be 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.

Catena of judgments from our Apex Court and the other countries have discussed about what constitutes medical negligence. ‘Negligence’ has been defined in the Halsbury’s Laws of England, 4th Edn., Vol. 26 pp.17-18 and extracted in Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors. (2010) 3 SCC 480 5 as under:

“22. Negligence. – Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed 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. A breach of any of these duties will support an action for negligence by the patient.”

In this instant case the OP-1 Dr. Nisar Ahmed Tyagi and the doctors at OP-3 hospital adopted the accepted mode of treatment, it was based on the symptoms and condition of patient. It was not negligence, but a reasonable standard duty of care.

Our this view dovetails from the ratio laid down by the Hon’ble Supreme Court in the case of Sameer

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a Kohli vs. Dr. Prabha Manchanda & Anr “it is for the doctor to decide, with reference to the condition of the patient, nature of the illness and the prevailing established practices as to how much information regarding the risk and consequences should be given and how they should be couched in the best interest of the patient. A doctor acting accordingly with normal care and in accordance with a recognized medical practice cannot be said to be negligent merely because body of opinion taken a contrary view. In modern medicine and surgery dissection of the various things a doctor has to do in the exercise of his whole duty of care owned to his patient is neither legally meaningful nor medically practicable.” The complainant is required to prove that the doctor did something or failed to do something which is the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do as held by the Hon'ble Supreme Court in case "Jacob Mathew vs. State of Punjab & Anr." AIR 2005 SCC 3180. The Hon’ble Supreme Court in Kusum Sharma and others v. Batra Hospital and Medical Research Centre and Others (2010) 3 SCC 480; discussed the breach of expected duty of care from the doctor, if not rendered appropriately, it would amount to negligence. It was held that, if a doctor does not adopt proper procedure in treating his patient and does not exhibit the reasonable skill, he can be held liable for medical negligence. Similarly two decisions rendered by Hon’ble Supreme Court namely, Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128 and A.S. Mittal vs. State of U.P. AIR 1989 SC 1570, it was laid down that when a Doctor is consulted by a patient, the former, namely, the Doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a 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. Thus, to succeed Medical negligence claim the patient/complainant has to prove three elements, whereby a duty of doctor’s care is owed to a patient and as a consequence of a breach of that duty (causa causens), the patient suffers injury. Regarding the reasonableness and requisite skill of treating doctor have been discussed by Hon’ble Supreme Court and this commission. In Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC 1 it was observed 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 the light of the above precedents and law laid down by Hon’ble Apex Court there was no breach of duty by OPs in the treatment of deceased patient. Per Hon’ble Dr. S. M. Kantikar, Presiding Member and Per Hon’ble Mr. Dinesh Singh, Member E. CONCLUSION: [a] Succinctly put, we note that the patient had complaints of fever, cough and pain in abdomen. He entered OP-2 hospital on his own volition. The OP-2 hospital immediately admitted him. He was diagnosed as a case of “acute cholecystitis”. The diagnosis made, at the that time, was correct, based on the symptoms and the clinical findings and the test reports. The OP-2 hospital treated him conservatively, within its available wherewithal. After about 24 hours or so of admission, evidently having regard to the limited wherewithal available with it, the OP-2 hospital referred him to “higher centre”, which was not specifically indicated as either “OP-3 hospital” or “Apollo Hospital”. The immediate treatment and care required was provided by OP-2 hospital, the reference to a higher centre was made without undue or unreasonable delay. The patient entered OP-3 hospital on his own volition. The OP-3 hospital immediately admitted him in its ICU, and treated him as an emergency case. He was under observation of inter alia a senior physician (MD) and a neurologist (DM (neuro)). He was diagnosed as “acute fulminant hepatitis leading to hepato-renal shutdown”. The diagnosis made, at the that time, was correct, based on the clinical findings and the test reports. He was treated by specialists from the concerned faculties, as were available in the OP-3 hospital. The patient’s attendants, including his lady wife, were informed, at each stage, about the critical condition and the poor prognosis of the patient. The patient expired after about 20 hours or so of admission. The continuous care and treatment of the patient, as an emergency case, in the ICU, which was its primary duty, was provided by OP-3 hospital (it did not evade responsibility or duty by offhand referring the critical patient with poor prognosis to “Apollo Hospital” or to any multi-speciality tertiary hospital etc.). [b] We may add that ‘expert opinions’ are broadly of two types. One are expert opinions filed by the complainant and / or the opposite party hospital(s) / doctor(s), the other are expert opinions sought by a Consumer Protection Forum. The former is adduced as part of their respective evidence by either or both sides. The latter is sought by the Forum, in its considered wisdom. As such, the two, an expert opinion filed by either side, and an expert opinion sought by a Consumer Protection Forum, are distinctively and differently placed. Here, in this case, this Commission, in its considered wisdom, sought expert opinion from All India Institute of Medical Sciences (AIIMS), New Delhi. The report dated 22.03.2016 from a medical board comprising six doctors from concerned faculties of AIIMS did not record any adverse comment on the OP-2 hospital or the OP-3 hospital or the treating doctors therein. [c] In the obtaining facts and the available evidence on record, it is not feasible to conclusively attribute non-adherence to duty of care and standard of practice, it is difficult to conclusively establish medical negligence / deficiency on the OP-2 hospital or the OP-3 hospital or the treating doctors therein. [d] Based on the above discussion, the complaint fails, and is accordingly dismissed.
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