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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
J.M. Malik, Presiding Member and Dr. S.M. Kantikar, Member
Mrs. Manjeet Chawla & Ors. —Complainants
versus
ESCORTS Heart Institute &Research Centre (Through itsMedical Superintendent Dr. (Maj. Gen.) Tarsem Kumar) —Opposite Party
Original Petition No. 228 of 2001
Decided on 17.7.2014
Counsel for the Parties:
For the Complainants : Mr. M. Wadhwani, with Ms. Manjeet Chawla, In-person
For the Opposite Party :Mr. Sajad Sultan, Advocate.
IMPORTANT POINT
Doctor or hospital is expected to take reasonable care in administration of treatment.
Headnote:(i) Consumer Protection Act, 1986—Section 21—Medical services—Medical negligence—Death of patient after Angiography—OP recommended and conducted CART as a routine procedure without proper care and caution—OP ignored risks of CART because overall percentage of patients encountering risks is small but, failed to appreciate that risks were real and as high as fatal in individual cases—OP had not kept arrangements ready to meet with emergent conditions—Biochemical report chart did not show periodic blood sugar estimation done by OP—Allergy test for contrast was not done prior to CART which was a necessary one—Hospital is a corporate hospital but lacks infrastructure of Cardiac Alert System or Rapid Response Team—ICU staff was careless and negligently monitored patient who suffered prolonged severe hypoglycemia and death on same day—OP is also guilty of overwriting and making corrections in medical records—Doctor or hospital is expected to take reasonable care in administration of treatment—Compensation of Rs.25,00,000/- with 9% interest and Rs.2,00,000/- as costs awarded. (Paras 12 to 18, 29 and 31)
(ii) Torts—Medical negligence—Negligence, as a tort, is breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do—Whole concept is about performing or not performing an act which a prudent and reasonable man would perform or not perform.
Held: In Poonam Verma Vs. Ashwin Patel & Ors, (1996) 4 SCC 332, the Apex Court held that negligence, as a tort, is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something, which a prudent and reasonable man would not do.
Therefore, the whole concept is about performing or not performing an act which a prudent and reasonable man would perform or not perform. The decision in Bolam vs. Frien Hospital Management Committee, 2 All ER 181, which we have referred to hereinafter. A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. (Paras 23 and 24)
(iii) Torts—Medical negligence—Medical negligence is an act of commission or an act of omission which a prudent doctor of average skill, knowledge and experience would not do—It leads to three kinds of errors or decision failure: slips, lapses, and mistakes—Slips or lapses occur when actions associated with a decision do not proceed as planned—Errors may occur when ‘good’ rules are used inappropriately or when ‘bad’ rules are used to make a decision— To fix liability, we have to consider many aspects—Doctors’ decisions about diagnosis and treatment are often made rapidly in difficult circumstances, but mistakes might result more from biases and short-cuts than time pressures—If we were to impose severe liability on hospitals and doctors for everything that happens to go wrong, it will lead to depriving of services to people or community at large—Doctors would tend to think more of their own safety than of goodness of their patients—Initiative would be stifled and confidence shaken—We insist on due care of patient at every point, but we must not condemn negligence that which is only a misadventure.
Held: Medical negligence is an act of commission or an act of omission which a prudent doctor of average skill, knowledge and experience would not do. It leads to three kinds of errors or decision failure: slips, lapses, and mistakes. Slips or lapses occur when the actions associated with a decision, do not proceed as planned. Errors may occur when ‘good’ rules are used inappropriately or when ‘bad’ rules are used to make a decision. Thus, OP is responsible for negligence; inaction and passivity, accordingly the OP hospital liable for the negligence and deficiency in service, in treating the patient with slips, lapses and mistakes. Thus, the complainant has proved on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty,
To fix the liability, we have to consider many aspects. It is true that, Doctors’ decisions about diagnosis and treatment are often made rapidly in difficult circumstances, but mistakes might result more from biases and short-cuts than, time pressures. If we were to impose severe liability on hospitals and doctors, for everything that happens to go wrong, it will lead to depriving of the services to the people or community at large, Doctors would tend to think more of their own safety, than of the goodness of their patients. Initiative would be stifled and confidence shaken. Thus, we insist on due care of the patient at every point, but we must not condemn negligence that which is only a misadventure.
Therefore, on the basis of foregoing discussion, we order that, The OP hospital is directed to pay compensation of Rs.25,00,000/- with interest @ 9% p.a. from the time of death of the patient and Rs.2,00,000/- as costs of litigation, within 90 days, to the complainant , otherwise it will carry interest @ 9% p.a., till its realisation. (Paras 30 and 31)
Result: Complaint allowed.
Dr. S.M. Kantikar, Member— “Overconfidence precedes carelessness and blurs out the risk. Inferiority magnifies it. Overconfidence is a common factor in errors. Unfortunately, most of us are poor at assessing the gaps in our knowledge, tending to overestimate both how much we know and how reliably we know it,”
Concern about quality arises from fear and anecdote than from facts; there is little systemic evidence about quality of health care in India. We have no mandatory any local or national system to track quality of care delivered to the patients here. Whereas it is most unfortunate that, in our country, more information is available on quality of airlines, restaurants, cars and electronic gadgets than quality of health care...!!
THE COMPLIANT:
1. This complaint was filed on 26 July 2001,by Mrs. Manjeet Chawla and her two sons alleging medical negligence in treatment and deficiency in services by the doctors at ESCORTS Heart Institute & Research Centre, New Delhi causing death of Mr. Pritpal Singh Chawla (the husband of the complainant No.1)
2. Mr. Pritpal Singh Chawla then aged about 52 years, at the time of filing of this complaint in the year 2001, (hereafter referred to as ‘the Patient/deceased’) had undergone Tread Mill Test (TMT) on 13/02/2001 which was reported as ‘positive’ for Reversible Myocardial Infarction (RMI) and Ischemia. Thereafter, on the next day i.e.14/2/2001, he approached ESCORTS Heart Institute & Research Centre, the OP (in short ‘EHIRC’), with a complaint of “Palpitation” and “Angina on Exertion (AOE)”. As an OPD patient (Reg. No: 149609) he consulted Dr. T. S. Kleir, a Cardiologist at OP hospital. The patient showed Dr. Kleir his TMT report and previous medical records, such as, prescriptions of the treatment, ECG, blood test reports, etc. The patient also informed Dr. Kleir about his diabetic status, since July 1984; and that he was taking insulin twice a day; (20 units in the morning before breakfast and 15 units before dinner). After examination, Dr. Kleir advised the deceased to undergo immediately, coronary angiography test (CART) and told that, it should be done as early as on the following day i.e.15th February 2001. Hence, the patient (deceased) accepted his advice and underwent certain more blood tests and chest x-ray, as per instructions of Dr. Kleir, on the same day i.e. 14/02/2001, at the OP hospital itself.
3. As instructed by Dr. Kleir, the patient took normal breakfast and medicines on the morning of 15/2/2001, and went to the hospital at 2:00 p.m., and got admitted to Cath Lab. The patient deposited Rs.14,000/- towards the fees of the procedure for the angiography. The deceased was made to sign on some forms, including “informed consent form”, without explaining the unforeseen complications during conduct of CART. The deceased was taken on the table for CART at 6.35 p.m. and the procedure was over within 35 minutes i.e. by 7.10 p.m. While the deceased was still in recovery room, he suffered an attack of Cardiogenic Pulmonary Edema. Then at about 7.20 p.m., he was administered Lasix and some other medicines. He was shifted to ICU by 7.30 p.m. and connected to monitor. The OP had not administered oxygen concentrate to the deceased, there was no alert issued for senior doctors, further the patient suffered brain death. The complainant alleges that, to avoid brain death, OP should have administered oxygen. It was seen from Nursing notes which clearly mentioned that (a) the deceased was in fully unconscious state and apnea” (unable to draw breath), (b) he was repeatedly given DC shocks, amboo and cardiac massage, for a pretty long time (c) BP was not recordable, pulse was feeble, (d) The patient was connected to monitor in ICU.
4. It was further alleged that, at 9.55 p.m. Dr. Kleir interpolated a remark in the noting of some other doctor which reads as follows: “the Pt. was discussed with Surgeon (Dr. Meharwal) for urgent CABG. He felt the condition of patient was not stable for CABG”. As
