J.D. Kapoor, President:
1. This complaint has been instituted by the legal heirs of the deceased Mr. Bale Ram, against the O.P. 2 hospital and O.P. 1 the operating doctor on account of whose negligence the deceased expired during the operation and have claimed Rs. 18,18,676 with 18% interest as compensation and Rs. 9 lacs as damages with pendente lite interest and costs.
2. Case of the complainant, in brief, is that on 25.11.1995 he developed some pain in his throat and to get the proper medical treatment and checking drove his two-wheeler scooter along with his wife, complainant No. 1 and reached ENT Shardha Gynae Centre, O.P. No. 2 located at J-9, RBI Colony, Outer Ring Road, Paschim Vihar, New Delhi between 1.00 p.m. and 1.30 p.m. He was examined by Dr. Arun Theraja, O.P. No. 1 in the said hospital and the doctor after examining the deceased informed the complainant No. 1 and the deceased that there was some blockage in the throat of the deceased and some minor operation will have to be undertaken in order to remove the blockage in the throat and further the throat pipe needed to be thorougly cleaned and the deceased will be all right within half an hour. The complainant No. 1 and the deceased requested the doctor to carry on necessary medical treatment. The OP No. 1 asked the wife and son of the deceased to wait outside without informing the progress of the deceased. The doctor in reply to query made by Mr. Dharam Chand scolded all of them. All of them enquired from the Mata Chanan Devi hospital about the condition of the deceased and they were informed at about 5.20 p.m. that Mr. Bale Ram was dead and no more in this world.
3. That it is pertinent to point out that after the said operation the deceased was profusely bleeding and there was no stoppage of bleeding and the O.P. 1 at that time did not apply any medicines or treatment to the deceased in order to stop the blood. In the evening when the deceased who was already dead, was shifted to Mata Chanan Devi hospital, C-1, Janakpuri, New Delhi where he was declared having been brought dead.
4. It is, therefore, alleged that the O.P. No. 1 performed the operation in a most casual manner and without due care and caution to his profession and without giving proper medicines before the operation and, therefore, O.P. No. 1 is guilty of gross negligence in attending to the deceased. The death of the deceased has occurred due to the rash and negligent act of O.P. 1.
5. An AIR No. 818/95 dated 1.12.1995 was registered against Shardha ENT and Gynae Centre (Nursing Home), J-9, RBI Colony, Outer Ring Road, Paschim Vihar, Delhi. The O.P. -1 was arrested by the police officials of Paschim Vihar on 14.12.1995 in the aforesaid case.
6. The deceased Mr. Bale Ram who was the only bread earner of the family was supporting the complainant No. 1 and his unmarried daughter complainant No. 2, who is still studying and to get herself married and other members of the family. The deceased died a premature death at the young age of 48 years, hence the O.Ps. i.e., respondents should be made to pay adequate compensation to the complainants for the irreparable loss caused to the family.
7. O.P. Nos. 1 and 2 in their defence have stated that the complainants are not consumers inasmuch as answering O.Ps. did not render diagnostic services for any valuable consideration but treated the deceased free of costs. On merit their version is as under:
(i) Â That the patient was a suspected case of cancer of cervical esophagus upper 1/3rd in which mortality rate is 100%. All forms of limited treatments and therapies are only palliative in nature and very less number of such patients ever responds to the treatment. Out of the ones who actually respond negligible number survive and that too may be for a couple of months to a few years.
(ii) That the deceased was a referred patient and came to O.P. 1 along with complainant No. 1 on 23.11.1995 for the first time with symptoms of dysphasia inasmuch as he was having acute problem (swallowing both liquids and solids) for the previous one week and in fact he was not able to take down anything. Complainant had already consulted Amar Leela Hospital, Janak Puri, New Delhi and Dr. K.B. Sachdev, Tilak Nagar, New Delhi advised for a barium swallow test followed by oesophagoscopy.
(iii) That after initial investigations, x-ray report of chest PA view and barium swallow on 24.11.1995 the case was highly suggestive of carcinoma oesophagus. The complainants intend to mislead this Honble Commission by meaning thereby that within a few hours on 25.11.1995 directly the engine diagnosis and the alleged so called operation took place, which is not the case at all.
(iv) That O.P. 1 only conducted oesophagoscopy and biopsy for suspected cancer in the cervical oesophagus of the patient in the affternoon of 25.11.1995. It is not an operation. Neither is it a therapeutic treatment for the suspected disease. It is only diagnostic procedure universally accepted technique and standard equipments for further pathological investi-gations to arrive at a conclusion to isolate the disease for its proper treatment. All the inherent risks regarding the disease and procedure were explained to the said patient and the complainant Nos. 1 and 4 on 24.11.1995 itself. That the inherent complications of cyanosis and onset of pulmonary edema arose at around 3.20 p.m. inside the said room and both the O.P. No. 1 and the anesthetist did their best to stop he aggravation of about 3.40 p.m. he himself arranged prompt ambulance to shift the said patient to O.P. 3 for further advanced life saving services of the said hospital. That on account of complications of pulmonary edema the said patient could not survive and was declared dead at 5.20 p.m. O.P. 1 only performed endoscopy of the cervical oesophagus in terms of the previous opinions, his own personal observations and report of the radiologist. It is specifically denied that said patient was already dead and he was shifted to the hospital and then declared dead. Patient was alive at that time but unconscious and his mother-in-law gave the consent note to the said hospital. As per hospital records patient was very much alive from 4.30 p.m. to 5.20 p.m. The said patient died at about 5.20 p.m.
8. On the other hand the stand of O.P. 3 is that the patient was brought to the hospital by O.P. 1 alive but became unconscious at 4.30 p.m. on 25.11.1995. Patient was immediately examined by the resident doctor on duty namely Dr. Anil Kumar Sharma (ICCU). The physician Dr. Subhash Gupta also examined the patient at 4.45 p.m. The patient was unconscious with gasping respiration. Endotracheal intubation had already been done by O.P. 1. The blood pressure was unrecordable. Cardiac monitor showed HR of 30 and pulse oxymetery revealed oxygen saturation of less than 50%. Patient was immediately put on ventilator and other supportive measures done side by side. There was noticeable transient improvement in heart rate and blood pressure with resuscitative measure but he had a cardiac systole at 5.00 p.m. In spite of all the resuscitative measures the patient could not be revived and was declared dead at 5.20 p.m. Patient was very much alive from 4.30 p.m. to 5.20 p.m.. Patient died at about 5.20 p.m. and he was not declared âbrought deadâ.
9. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 All.ER 118, 121 D-F still hold the field. This test, in popular parlance is known as âBolam Test after the name of the petitioner. In short the test is as under :
âWhere you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of man on the top of a Clapham omnibus, because he has not got this special skill. 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 suffcient if he exercises the ordinary skill of an ordinary competent man exercising that particular artâ (Charles worth and Percy, ibid, Para 8.02)
10. Bolam test was accepted with approval in the following judgments:
(i) Sidway v. Bethlem Royal Hospital Governors and Others, 643 All England Law Reports (1985) 1 All.ER.
(ii) Maynard v. West Midlands Regional Health Authority, 635 All England Law Reports (1985) 1 All.ER.
(iii) Whitehouse v. Jordan and Another, 650 All England Law Reports (1980) 1 All.ER.
11. Presumably because of persuasive value of Bolams case that out own Supreme Court has in case after case and particularly in Indian Medical Association v. V.P. Shantha and Others, III (1995) CPJ 1 (SC)=(1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the Courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC)=(2005) SCC (Cr.) 1369. Observations of Supreme Court are as under:
â(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise, which reasonable comptence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary comptent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.â
12. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court areâ
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
13. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means âany fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
14. To ascertain the medical negligence, cumulative conclusions drawn various decisions can be summed up in the form of following queries? Decision will depend upon the answers:
(i) Â Whether the treating had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everbody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary sense and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or detah was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Â Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
15. From the version of O.P. Nos. 1 and 2, we find that they did not conduct any operation as alleged by the complainant but only conducted tests known as oesophagoscopy and biopsy for suspected cancer and it was during this test that inherent complication of cyanosis and onset of pulmonary edema arose and that it was after the patient was shifted on account of complication of pulmonary edema.
16. O.P. No. 1 Doctor who is present before us. We have asked him to inform us as to what does Dysphagia mean. According to him it is lack of blood supply to any organ of the body and the pulmonary as well as in the lungs. These are such kinds of complications that any patient can face during anesthesia and are not resultant of the test of pulmonary and biopsy meant for suspected cancer and, therefore, the question of O.P. No. 1 being negligent or deficient in service in conducting the aforesaid tests did not arise nor can such a test result in the death of any person who may be even patient of cancer.
17. Learned Counsel for O.P. Nos. 1 and 2 has contended that none of the doctors of the O.P. No. 3 where the complainant was taken subsequently has given opinion or report that cause of death was negligent handling of the test conducted at O.P. No. 2 hospital. O.P. No. 3 has only stated that patient was brought to the hospital by O.P. No. 1 alive but became unconscious.
18. It is significant to point out that the Department of Forensic Medicine, Maulana Azad Medical College constituted a Board of Doctors to find out whether there was any negligence on the part of O.P. Nos. 1 and 2 or not. They gave their opinion on the history of patient given by O.P. No. 1 which is as under :
âA detailed history of the illness was taken and the patient was thoroughly examined. Some investigations including X-rays, ECG and required blood tests were done. After those it was decided that the patient required to undergo oesophagoscopy and Biopsy to arrive at a definite diagnosis and treatment. The patient was informed about the procedure to be undertaken and explained the possible risks and the procedure. The patient was subjected to Oesophagoscopy and Biopsy under general ansthesia. During the procedure patient developed high blood pressure. Suitable medication was given to correct the same and the blood pressure came down to some extent. Recovery from anesthesia was complete and the patient was shifted to a room where he was reported to be comfortable.
After some time the patient again developed high blood pressure for which corrective measures were initiated. After a few minute condition of the patient deteriorated and resuscitative measures were undertaken. But some breathing difficulty also developed along with the high blood pressure. At this stage it was decided to shift the patient to continuing the assisted respiration. The patient was admitted in the said hospital at 4.30 p.m. and was declared dead at 5.20 p.m. on the same day. As per the death certificate patient died of cardiac respiratory arrest due to massive pulmonary edema.â
Their opinion is as under :
âNo post-mortem was conducted in this case. In the circumstances it is difficult to give any definite opinion regarding the cause of death. However, after perusal of the records it can be observed thatâ
The patient was properly evaluated before oesophagoscopy. Necessary investigations were also done and from the records it is obvious that oesophogoscopy was required for proper management of the patient. The patient was suffering from high blood pressure. He was also a chronic smoker.
It is a well established fact that patients with high blood pressure are more likely to develop cardiac and respiratory problems during surgery and anesthesia. This is because of fluctuations in blood pressure and heart rate. This can possibly lead to various complications including pulmonary edema which is sometimes fatal.
Considering the overall circumstances of the case it is once again emphasized that a definite opinion could only be given after post mortem examination. However, the available records of the case do not indicate any evidence of negligence in the management of the patient.â
19. As is apparent the Board of Doctors could not give any definite opinion regarding the cause of death in the absence of post-mortem examination. After considering every circumstance of the case particularly the hospital records given by O.P. Nos. 1 and 2 the Board was not in a position to given definite opinion of cause of the death and did not indicate any evidence of negligence to the management of the case.
20. We fail to understand as to how they arrived at this conclusion without any basis and in the absence of post-mortem examination as it was only after the post-mortem examination the cause of death could be ascertained. On the basis of medical history and the treatment given by O.P. Nos. 1 and 2 the Board of Doctors could not form any opinion as to the cause of death. If they were not in a position to give any opinion as to the cause of death on the basis of details of treatment given by O.P. Nos. 1 and 2 the inference has to be drawn that during the test known as oesophagoscopy and biopsy for suspected cancer some or other kind of negligence was there otherwise complication of cyanosis and onset of pulmonary edema could not arise. The Board of Doctors only opined that the patients with high blood pressure are more likely to develop cardiac and respiratory problem during surgery and anesthesia which does not necessarily lead to various complications including pulmonary edema which is sometimes fatal.
21. Contention of the learned Counsel for the O.P. that it is the Consumer or the patient who has to prove medical negligence by providing expert evidence has no substance. Whether there is no such evidence nor is there a possibility of error of judgment, it is from the line of treatment and adverse consequences flowing therefrom that inference of medical negligence can be drawn testing the treatment on the anvil of medical practice and procedure. Consumer or a patient is not a medical expert who should know as to what kind of onus he has to discharge to prove the medical negligence.
22. Circumstance of death is unexpected circumstance or complication of some very serious nature or phenomena of fatal nature during the course of treatment given by the doctor for a minor problem or even for the purpose of tests or any other such like circumstance that a conclusion or inference can be drawn as to medical negligence.
23. Error of judgment is a different thing and medical neligence is a different thing. Error of negligence does not invole risk like risk of death when a patient goes for a treatment for a very minor problem. Error of judgment can only occur when some medical professional adopts a particular line of treatment out of two or three prescribed lines.
24. Where there is one established line of treatment or procedure or practice for treating a problem including the conducting of tests for ruling out cancer or any other disease and during the tests itself serious complications arise which are not necessarily side effects then the inference of medical negligence is inevitable.
25. Here in the instant case the patient approached the O.P. No. 1-Doctor only for treating some pain in his throat. Several investigations including X-rays, ECG, Blood Pressure were undertaken. It was thereafter that a test known as oesophagoscopy was resorted to. In addition Biopsy was conducted to arrive at a diagnosis and treatment. Accordingly to O.P. Nos. 1 and 2 the patient was informed about the procedure to be undertaken for these tests and explained the possible risk involved in the procedure.
26. Let us assume that patient was explained the possible risk but no person in the world consent for tests where there is a risk that during the test itself he can die. Such a phenomenon, in medical parlance means investigation is worse than the treatment though the adage about such a situation goes that remedy was worse than the peril.
27. The most ineluctable conclusion to be draw from the circumstance of the patient having developed cyanosis and pulmonary edema that led to his death as this pulmonary edema is that O.P. Nos. 1 and 2 were negligent either in treating the patient or in conducting the tests. We do not have any kind of record before us showing any kind of complication or the problem the patient suffered originally when he had come to the doctor or that the treatment of patient involved the risk of death.
28. In support of his contention that there was no negligence on the part of O.P. Nos. 1 and 2 the learned Counsel referred to medical text book on the subject âShort Practice of Surgery. The main crux of this text is that the complication that arose was not a result of the procedure performed by the O.P. No. 1 but due to anesthesia.
29. Even if we accept the aforesaid version still the fact remains that there was again negligence in performing the anesthesia for which O.P. Nos. 1 and 2 availed the services of Anesthetist and, therefore, O.P. Nos. 1 and 2 are jointly and severally liable.
30. Cumulative effect of the foregoing discussion is that there was some or other kind of negligence on the part of O.P. Nos. 1 and 2 while conducting the tests known as oesophagoscopy due to which some complications of cyanosis and pulmonary edema arose. It is not a case that the O.P. Nos. 1 and 2 were not qualified. They were well qualified but as we have observed above there was some negligence in conducting the test or treatment that we find O.P. Nos. 1 and 2 guilty for deficiency in service as to the aforesaid limited aspect. In our view a lump sum compensation of Rs. 50,000 would meet the ends of justice. Payment shall be made within one month.
31. Complaint is disposed of in aforesaid terms.
32. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
Complaint disposed of.