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V.P. Sharma & Others v/s Dr. G.S. Kochar Surgeon Urologist) & Another


Company & Directors' Information:- DR I T M LIMITED [Active] CIN = U67120CH1999PLC022651

Company & Directors' Information:- S C SHARMA AND CO PRIVATE LTD [Active] CIN = U74899DL1948PTC001507

Company & Directors' Information:- SHARMA INDIA PRIVATE LIMITED [Active] CIN = U74999UP2008PTC035620

Company & Directors' Information:- K P SHARMA (INDIA) PVT LTD [Strike Off] CIN = U51109WB1988PTC045569

Company & Directors' Information:- SHARMA CORPORATION PRIVATE LIMITED [Active] CIN = U51909WB2017PTC220657

Company & Directors' Information:- P C SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U45201DL1981PTC012750

Company & Directors' Information:- J. R. SHARMA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U24211DL1966PTC004602

Company & Directors' Information:- G.S. AND CO. PRIVATE LIMITED [Active] CIN = U51109DL1997PTC085193

Company & Directors' Information:- M K SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74994DL1982PTC014090

Company & Directors' Information:- SHARMA AND SHARMA PRIVATE LIMITED [Active] CIN = U74900DL2015PTC276949

Company & Directors' Information:- SHARMA & CO. PVT LTD. [Strike Off] CIN = U28991WB1949PTC018064

    Consumer Case No. 9 of 2003

    Decided On, 11 August 2020

    At, National Consumer Disputes Redressal Commission NCDRC

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

    For the Complainants: Vikas Mahajan, Vinod Sharma, Anil Kumar Advocates. For the Opposite Parties: V.P. Chandna along with Dr. G.S. Kochhar, Vivek Sharma, Nanita Sharma, Advocates.



Judgment Text


Dr. S.M. Kantikar, Presiding Member

Complaint:

1. Since May 2002, Smt. Kusum Lata (for short ‘the patient’) was suffering from recurrent urinary tract infection (UTI). She consulted Dr. G. S. Kochhar (OP-1) at his private clinic and shown the urine Culture and Sensitivity (C/S) report. There was growth of Staphylococcus pyogenic organisms sensitive to Co-trimoxazole. The OP-1 prescribed Tab. Bactrim for 7 days. Thereafter, again in July 2002, forsimilar urinary complaints, the patient contacted OP-1 along with the urine C/S report dated 20.07.2002, it showed significant growth Escherichia-coli (E-coli) organisms with colony count > 1,00,000 per ml urine. However, the OP- 1 did not prescribe any medicines, but advised for surgery only and told the patient to get admitted on 8.8.2002 in Holy Family Hospital (OP-2 Hospital). It was alleged that the OP-1 did not follow the standard of practice, he failed to treat Esch.coli infection for 10 to 14 days by specific antibiotic. Also, OP-1 before the operative procedure failed to advise fresh urine C/S to ascertain it was sterile. The Complainant further alleged that the OP-2 hospital issued two different discharge summaries with contradictory noting. Her husband (the Complainant No.1) approached the hospital with the 1st discharge summary and pointed out the mistakes. The hospital took it back and issued 2nd discharge summary. It was alleged that due to negligence the OP-1 failed to diagnose the septicemia and DIC. Thus to cover-up negligence of OP-1 and 2, under the garb of suspectedcardiac problem shiftedthe patient to Escorts Hearts Institute & Research Centre, New Delhi ( for short ‘EHIRC’).

Defense:

2. The OPs filed their respective written versions and denied any negligence during the treatment. The preliminary objection raised was on maintainability of the complaint on the point of free service given by OP-2, therefore, the patient was not a consumer under the Consumer Protection Act, 1986. The complaint was defective for jurisdiction and non-joinder of the parties. The OPs further submitted that the operation was performed on 9.8.20002 and uneventful. After the procedure the patient was under observation and attended to by the on duty as per the instructions of OP-1. She was given IV fluids and antibiotics. The fall of the blood pressure was a routine after the procedure and it was efficiently managed, IV Haemaccel was started. At 7.30 pm patient complained of nausea, but no vomiting. The patient was attended by Dr. Ajay Kumar who was on call duty, examined her. The patient was conscious, well hydrated and she was passing clear urine and no evidence of blood in her urine. Dr. Ajay Kumar telephonically updated OP-1 about the condition of the patient. OP-1 advised to get an ECG done and let the patient be examined by physician. The patient was attended time to time by physician Dr. Jaydeep Mandal/ Dr. S. Mukherjee, MD Senior Consultant (Medicine). On 10.08.2002 at 8.20 AM Dr. S. Mukherjee and the OP-1 Dr. G. S. Kochhar jointly examined the patient in the ICU. The Chief of Medical services of BHEL Dr. S.C. Jolly was also present. It was revealed that patient’s cardiac enzymes were rising and ECHO was not normal therefore acute cardiac problem was suspected. The doctors after discussion with each other in the presence of the Complainant 1, Shri V.P. Sharma decided to shift the patient to EHIRC which was situated across the road of the OP-2 Hospital. The patient was shifted 11.15 am under the supervision and accompanied by one doctor and one nurse of Holy Family Hospital. At the time of shifting, all test reports were given to the patient’s attendants.

Arguments:

3. The learned counsel for the Complainants submitted that it was the case of UTI due to virulent Esch. Coli organisms were the main cause of septicemia and later progressed to DIC and septic shock. OP-1 ought to have treated the patient for UTI before operative procedure. He further argued that the OP-2 hospital issued two discharge summaries showing contradictory clinical findings: The 1st discharge summary dated 10.08.2002 revealed at the time of discharge patient’s condition was satisfactory, but the patient was in critical condition with life support when he was shifted in the ambulance to EHIRC. Whereas the 2nd discharge summery was issued on 12.08.2002 mentioned different findings. The hospital retained the 1st discharge summary. Thus the learned counsel reiterated that at OP-2, Holy Family Hospital indicates that the OP-1 treating surgeon was not monitoring the condition of the patient and he has not seen the patient at the time of discharge. The 2nd discharge summary was issued by the hospital to cover up their own negligence and create false impression that patient was in good condition while shifting to EHIRC. The learned counsel for the Complainant relied upon various decisions of this Commission and the Hon’ble Supreme Court namely:

i) B. Reghupathis (Dr.) & Anr. Vs. B. Vasantha & Ors., I (2008) CPJ 1 (NC);

ii) T. Rama Rao vs. Vijay Hospital & Anr., I (2008) CPJ 170 (NC);

iii) Janak Kantimathi Nathan (Dr.) & Ors. Vs. Murlidhar Eknath Masane & Ors., I (2008) CPJ 191 (NC);

iv) Tagore Hospital & Anr. Vs. Harman Singh & Anr., I (2008) CPJ 360 (NC);

v) G. Balakrishna Pai vs. Sree Narayanan M.M.G.H. & T.B. Clinic, II (2008) CPJ 93 (NC)

vi) Jaswant Lal vs. General Hospital & Ors., III (2008) CPJ 230;

vii) Calcutta Medical Research Instituted vs. Saroj Kumar Sinha Roy & Ors., III (2008) CPJ 360 (NC);

viii) Krishna Sharma vs. Raj Hospital & Ors., III (2005) CPJ 314;

ix) Balram Prasad vs. Kunal Saha, (2014) 1 SCC 384;

x) V. Krishan Rao vs. Nikhil Super Specialty Hospital & Anr., (2010) 5 SCC 513

4. The learned counsel for OPs vehemently argued that the Complainant in his entire complaint has tried to set up a case of deficiency on the part of OPs-1 & 2 but interestingly concealed about treatment which the patient had received for the 7 days at Escorts. The Complainants made false, frivolous and wrong allegations that Dr. G. S. Kochhar and Dr. S. Mukherjee have made intentionally wrong diagnosis of acute Ml. As a matter of fact during her post-operative period in ICU, low BP and rising cardiac enzymes gave strong reason to suspect acute MI. It was with the consultation of Dr. S.S. Jolly, CMO of BHEL, it was decided to refer the patient to EHIRC for further management.

Analysis and Conclusion:

5. Regarding the allegation of non-treatment of UTI: it is clear from the medical record that on 16.05.2002, Dr. Kochhar gave antibiotic Tab Bactrim DS to the patient. Thereafter, on 20.07.2002 the patient was seen by Dr. Manu Saxena in BHEL Dispensary and prescribed antibiotics. Thereafter, on 23.07.2002 at Sir Ganga Ram Hospital, patient was examined by the chest physician Dr. D.D.S. Kulpathi who performed bronchoscopy examination and gave his clearance. Then On 24.07.2002 Dr. Kochhar admitted the patient to Holy Family Hospital for diagnostic cum therapeutic Cystoscopy procedure and urethral dilatation. The chest physician on 27.07.2002 gave Tab Uroflox 400 BD and steroid inhaler to the patient. The patient got admitted in Holy Family Hospital on 08.08.2002. The pre-operative laboratory investigations, ECG were done. The urine culture was sterile. We further note that pre-operatively on 09.08.2002 injection Gentamycin IV was given by the nurse at 7.30am to cover any latent infection. Considering the sequence of treatment (supra) it is clear that the patient was under adequate antibiotic cover before the Cystoscopy.

6. Regarding the allegation about delay in the treatment after the Cystoscopy:

On 09.08.2002 after the completion of procedure at 9.40 AM the patient was kept under observation of the duty doctors. At 2pm, the patient passed clear urine without any pain or blood. At 3.30pm, the patient complained of headache and upper abdominal pain with shivering. Dr. Vikram examined her and after consulting with OP-1 gave Mucaine gel, injection Rantac and steam inhalation. At 4.30pm, for nausea and uneasiness, the patient was given injection Overon and injection Avil. Dr. Ajay examined the patient at 6.00pm, for vomiting and fall in BP, therefore started IV fluids and Hemaccel, the blood volume expander. Dr. Ajay at 7.30pm telephonically informed the condition of patient to the OP-1 who advised to shift the patient to ICU. At 8.30pm Dr. Kochhar visited ICU and after examination cancelled the patient’s discharge. He advised for closed monitoring and increased the antibiotic cover by adding injection Claforan (Cifotaxime). The advice of OP-1 is reproduced as below:

i) Cancel discharge, Shift to ICU etc

ii) Contact Dr. S. Mukherjee & follow his treatment.

iii) Foleys Cauterization Stat

iv) Central Venus Pressure Line – Stat

v) Add Injection RANTAC 50mg IV TDS

vi) Add Injection Claforan 1 gm IV BD

vii) Cont. Inject Gentamycin 80 mg IV BD

viii) Strict Intake/Output Record

ix) Inform SOS

The patient was thereafter seen by Dr. Jaydeep Mandal, the physician who was an associate of Dr. S. Mukherjee. Throughout night, for the hypotension, the patient was monitored in ICU by intensivist and trained nurses. In the morning on 10.08.2002, the patient was examined by Dr. Kochhar and Dr. S. Mukherjee with Dr. S.C. Jolly, the CMO of BHEL. They suspected Acute MI in view of low BP with rising Cardiac enzymes of the patient. Therefore, to save her life, it was advised to refer the patient to EHIRC for further treatment.

7. About two discharge summaries which mentioned contradictory condition of the patient: 1st discharge summary was prepared on 09.08.2002 soon after the procedure at about 11:30 anticipating that the patient would be in a fit condition to be sent home on next day morning i.e. 10.08.2002, but in view of rising cardiac enzymes and hypotension it was mutual decision taken by the team of doctors consisted of Dr. G.S. Kochhar, Dr. S. Mukherjee and Dr. Jolly of BHEL to shift the patient to EHIRC for further management of the patient. The informed consent from V.P. Sharma the Complainant no. 1 was taken. Therefore at the time of shifting the patient to EHIRC another discharge summary was prepared on 10.08.2002. However, it was admitted by OP on affidavit that by mistake, the staff nurse inadvertently handed over both the discharge summaries. Thus, we do not find any ill intention of OPs issuing two discharge summaries.

8. We further note that the Delhi Medical Council (DMC) did not find deficiency or negligence on the part of treating doctors at Holy Family Hospital, DMC found that engaging qualified post-graduate and experienced doctors which was proper system and accepted norm. The appeal preferred by the Complainants before the Medical Council of India was dismissed on 14.07.2003. The Complainant also filed an FIR in the New Friends Colony Police Station but finally the closure report was filed by police before the Additional Chief Metropolitan Magistrate, Patiala House, New Delhi was accepted by the Magistrate.

Conclusion:

9. It is true that the wife of the Complainant- the patient was admitted to Holy Family Hospital (OP-2) on 8.8.2002 for urinary complaints. The OP-1 advised proper investigations like ultrasound, urine C/S and Uroflow-metry. Based on the reports in order to stop the recurring UTI and save the kidneys, OP-1 advised the patient to undergo Cystoscopy and Urethral dilatation procedure. The CMO BHEL also advised the Complainant to undertake procedure by OP-1. On 9.8.2002 the patient was operated by OP-1 successfully. However, in the evening the patient developed, unexplained hypotension which was managed at OP-2 hospital and on 10.8.2002 the patient was shifted to EHIRC and treated for seven days. On 12.08.2002 Dr. Suman Bhandari of EHIRC advised the patient to shift Apollo Hospital but the advice was ignored for reasons best known to the Complainant. The patient’s medical history clearly revealed that she was suffering from various co-morbidities like breathing difficulty, hypothyroidism and post tuberculosis inflammation of lungs. Such co-morbidities are fatal in this case. In our considered view there was no dereliction in duty of care from the OP-1. He is qualified urologist and treated the patient as per the standard of practice. The DMC and MCI also did not find negligence from the hospital and treating doctors therein.

10. The Hon’ble Supreme Court in its several judgments elaborately discussed on the issue what constitute medical negligence. It is apt to recollect the words of the then Hon’ble Chief Justice of India, when he said in Jacob Mathew’s case (2005) SSC (Crl) 1369 which reads as under:

“The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.”

It was further observed that:

“When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a cas

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e provided he appeared in it and made his submissions.” In the instant case, we do not find any negligence during treatment of the patient, thus blaming the doctor and hospital is not correct. 11. The doctor is not liable for negligence if he performs his duty with reasonableness and with due care and the mode of treatment/ skill differ from doctor to doctor. In Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634, 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.” 12. In the instant case, from the entire evidence on record (including inter alia the DMC, MCI decisions), it does not appear that the OP-2 did not perform his duties to the best of his expertise. 13. The Complainant has failed to conclusively establish deficiency / negligence on the part of the treating doctor / the hospital. 14. The Complaint fails, and is dismissed.
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