NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 208 OF 2008
 
(Against the Order dated 04/04/2008 in Complaint No. 06/2005 of the State Commission Chandigarh)
1. MOHAN DAI OSWAL CANCER TREATMENT & RESEARCH FOUNDATION & ORS
G. T. ROAD, SHERPUR BYE-PASS
LUDHIANA - 141009
CHANDIGARH
2. DR. SATISH KUMAR JAIN
DIRECTOR, MOHAN DAI OSWAL CANCER TREATMENT AND RESEARCH FOUNDATION, G. T. ROAD, SHERPUR BYE-PASS
LUDHIANA - 141009
CHANDIGARH
3. DR. RAMAN ARORA
HEAD OF MEDICINE DEPARTMENT, MOHAN SAI OSWAL CANCER TREATMENT AND RESEARCH FOUNDATION, G. T. ROAD, SHERPUR BYE-PASS
LUDHIANA - 141009
CHANDIGARH
...........Appellant(s)
Versus 
1. PRASHANT SAREEN & ORS
C/o. Sareen Electricals Pvt. Ltd., G.T. Road Miller Ganj, Near Vishavkarma Mandir
LUDHIANA - 141 001
Punjab
2. ANJALI SAREEN
RESIDENT OF HOUSE NO. 1165, GURU AMAR DASS NAGAR, GURUDWARA ROAD, LODHI CLUB, BYE-PASS
LUDHIANA
PUNJAB
3. DR. VANDANA BHAMBRI
MOHAN DAI OSWAL CANCER TRETMENT AND RESEARCH FOUNDATION, G. T. ROAD, SHERPUR BYE-PASS
LUDHIANA - 141009
CHANDIGARH
4. DR. HARJIT SINGH KOHLI
MOHAN DAI OSWAL CANCER TREATMENT AND RESEARCH FOUNDATION, G. T. ROAD, SHERPUR BYE-PASS
LUDHIANA - 141009
CHANDIGARH
5. ORIENTAL INSURANCE COMPANY LTD.
BRANCH OFFICE - III AT 40 FEROZE GANDHI MARKET
LUDHIANA
CHANDIGARH
6. NATIONAL INSURANCE COMPANY LTD.
REGIONAL OFFICE - I, SCO NO. 332 - 334, SECTOR 34 - A
CHANDIGARH
7. Prashant Sareen
House No.1165, Guru Amar Dass Nagar, Gurudwara Road, Lodhi Club By Pass Road,
Ludhiana
Punjab.
...........Respondent(s)
FIRST APPEAL NO. 292 OF 2008
 
(Against the Order dated 04/04/2008 in Complaint No. 6/2005 of the State Commission Chandigarh)
1. ORIENTAL INSURANCE CO. LTD
Branch Office -IIIat 40, Feroz Gandhi Market,
Ludhiana
Punjab
...........Appellant(s)
Versus 
1. PRASHANT SAREEN & ORS.
Resident of House no.1153,Guru Amar Dass Nagar, Gurudwara Road, Lodhi Club, Bye Pass,
Ludhiana
Punjab
2. ANJALI SAREEN
Resident of House no.1153,Guru Amar Dass Nagar, Gurudwara Road, Lodhi Club, Bye Pass,
Ludhiana
Punjab
3. MOHAN DAI OSWAL CANCER TREATMENT AND RESEARCH FOUNDATION
G.T. Road, Sherpur Bye - Pass,
Ludhiana
Punjab
4. DR. SATISH KUMAR JAIN, MOHAN DAI OSWAL CANCER TREATMENT AND RESEARCH FOUNDATION
G.T. Road,, Sherpur Bye-Pass
Ludhiana
Punjab
5. DR. RAMAN ARORA, HEAD OF THE MEDICINE DEPARTMENT, MOHAN DAI OSWAL CANCER TREATMENT AND RESEARCH FOUNDATION
G.T. Road, Sherpur Bye-Pass
Ludhiana
Punjab
6. D. VANDANA BHAMMOHAN DAI OSWAL CANCER TREATMENT AND RESEARCH FOUNDATIONRI,
G.T. Road, Sherpur Bye Pass
Ludhiana
Punjab
7. DR. HARJIT SINGH KOHLI, MOHAN DAI OSWAL CANCER TREATMENT AND RESEARCH FOUNDATION
G.T. Road, Sherpur Bye Pass,
Ludhiana-141 009
Punjab -
8. NATIONAL INSURANCE CO. LTD.
Regional Office-I, SCO No. 332-334, Sector 34-A
Chandigarh
Chandigarh
...........Respondent(s)
FIRST APPEAL NO. 373 OF 2008
 
(Against the Order dated 04/04/2008 in Complaint No. 46/2007 of the State Commission Chhattisgarh)
1. NATIONAL INSURANCE CO. LTD
Regional Office-I SCO No.332-334 Sector-34A
Chandigarh
2. DR.RAMAN ARORA
Mohan Dai Oswal Cancer Treatement & Research Foundation G.T.Road Sherpur Byepass
Ludhiana -141009
...........Appellant(s)
Versus 
1. PARSHANT SAREEN & ORS.
H.No.1153, Guru Amar Dass Nagar Gurdwara Road Lodhi Club Byepass
Ludhiana
2. ANJALI SAREEN
H.No.1153,Guru Amar Dass Nagar Gurdwara Road Lodhi Club Byepass
Ludhiana
3. MOHAN DAI OSWAL CANCER TREATMENT & RESEARCH FOUNDATION
Mohan Dai Cancer Hospital G.T.Road Sherpur Byepass
Ludhiana-141009
4. DR.SATISH KUMAR JAIN
Mohan Dai Oswal Cancer Treatment & Research Foundation G.T.Road Sherpur Byepass
Ludhiana -141009
5. DR.VANDANA BHAMBRI
R/o Flat No.A-2,Mohan Dai Oswal Cancer Treatement & Research Foundation G.T.Road Sherpur Byepass
Ludhiana -141009
6. DR.HARJIT SINGH KOHLI
Flat No.6-A,Mohan Dai Oswal Cancer Treatement & Research Foundation G.T.Road Sherpur Byepass
Ludhiana -141009
7. ORIENTAL INSURANCE CO.LTD
Branch Office -III at 40,Feroze Gandhi Market
Ludhiana
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
 HON'BLE MRS. M. SHREESHA,MEMBER

For the Appellant :
For Mohan Dai Oswal Cancer
Treatment and Research Foundation : Mr. Y. Rajagopala Rao, Advocate
For National Insurance Co. Ltd. : Mr. Ganesh Khanna, Advocate for
Dr.Sushil Kumar Gupta, Advocate
For Oriental Insurance Co. Ltd. : Mr. Sreenath S., Advocate
For the Respondent :
For Dr. Harjit Singh Kohli : Ex-parte vide order dated 22.02.2016
For Dr. Vandana Bhambri : Abated vide order dated 23.04.2018
For the Complainants : Mr. Prashant Sareen, R-1, in person

Dated : 24 May 2019
ORDER

Per Mrs. M. Shreesha, Member

Aggrieved by the order dated 04.04.2008 in Consumer Complaint No. 06/2005(PB)/ RBT/46/2007 passed by the  U.T. Chandigarh State Consumer Disputes Redressal Commission Mohan Dai Oswal Cancer Treatment & Research Foundation along with Dr. Satish Kumar Jain and Dr. Raman Arora preferred First Appeal No. 208 of 2018 and Oriental Insurance Company Ltd. and National Insurance Company Ltd. Preferred First Appeal Nos. 292 and 373 of 2008 respectively under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”). By the impugned order, the State Commission has allowed the Complaint in part directing Opposite Parties 1 to 3, 5, 6 and 7 jointly and severally to pay an amount of ₹16,80,749/- within  a period of one month failing which, the amount would carry interest @ 9% p.a. from the date of order till the date of realisation. The Opposite Parties 6 and 7, who are the Insurance Companies were directed to pay the amount in equal shares, if recovered from them, provided the amount does not exceed ₹10,00,000/- each.

2.       The facts in brief are that the first and second Complainants are husband and wife, who were blessed with a daughter on 30.12.2000 and named her as Arshiya (hereinafter referred to as “the Patient”). It is averred that on 17/18-01-2004, when she was about three years, she was diagnosed to be having symptoms of blood cancer. Upon advice of the family doctor she was taken to Dharamshila Cancer Hospital and Research Centre, New Delhi, where a bone marrow test was conducted and she was treated for 15 to 20 days. Subsequently, on the advice of doctors of Indraprastha Apollo Hospital, New Delhi, that the Patient required treatment for six months by way of Chemotherapy, the parents shifted her to Mohan Dai Oswal Cancer Treatment & Research Foundation, Ludhiana (hereinafter referred to as “the Hospital"), on the evening of 17.02.2004, after getting her discharged from Dharamshila Cancer Hospital and Research Centre, New Delhi.

3.       At the Hospital, the third Opposite Party, namely Dr. Raman Arora prepared a Written Protocol of the treatment and the Patient was admitted and treated in the Hospital initially from 17.02.2004 to 21.02.2004 for which an amount of ₹8,655/- was charged. As per the Protocol given by Dr. Raman Arora, the Patient was to be given four cycles of Chemotherapy for which 11 injections of Vincristine of 1 Mg each dose was to be given intravenously and 14 injections of Methotrexate  was to be administered intrathecally and these four cycles were supposed to be completed within four to five months. It was stated that Dr. Raman Arora was in charge of the said treatment as he was head of the Medicines Department, wherein the fourth and fifth Opposite Parties namely, Dr. Vandana Bhambri and Dr. Harjit Sing Kohli assisted him. The patient was given three cycles of Chemotherapy as on 14.06.2004 and the bone marrow test was conducted on 13.03.2004 her condition had improved as she responded well to the treatment. As on 14.06.2004, 9 injections of Vincristine and 13 injections of Methotrexate  were administered, thereafter as per the protocol, she was to be given the last and 4th cycle of treatment on 05.07.2004, which included four injections of Vincristine Prednisone, Asparaginase and Methotrexate.

4.       It was pleaded that the requisite injections in a sealed condition were purchased form the pharmacy store of the Hospital and the same was handed over to the fifth Opposite Party, namely Dr. Harjit Singh Kohli, who had just come out of the ICU unit. It was stated that the caution was clearly written on the packet that the medicine Vincristine was to be administered intravenously only. The direction slip also mentions that the medicines were to be administered only after reading the directions on the pack insert. It was stated that as Doctors have already given the treatment in the previous cycle, they were expected to know the essential protocol to be followed. A central line was already fixed in the chest of the Patient for giving injections intravenously. Vincristine was 1mg transparent liquid, whereas Methotrexate  which was to be given intrathecally was of 12 mg  dose and was of a bright yellow colour. Even the injection needles and syringes of two vaccines   were different in size. It is averred that the fourth and fifth Opposite Parties committed gross negligence by administering Vincristine injection to the Patient intrathecally instead of administering the same to her intravenously,  although they knew  that the administration of the injection in a wrong manner would prove fatal. When the Complainants protested, the said Doctors stated that the medicine would ultimately reach the stomach  and it does not matter as to how it is administered and though the same was also reported to Dr. Raman Arora, he too stated the same. Thereafter, Dr. Satish Kumar Jain arrayed as the second Opposite Party and a Director of the Hospital was contacted to take some remedial action, he stated that the even if wrong injection has been given by the subordinate Doctor, as the Patient was already suffering from cancer and would not live for more than five years, it did not make any difference. Subsequently, the Doctors asked the Complainants to procure ‘Enbrel’, which is an antidote of Vincristine and available in USA. The said injection cost an amount of ₹4,80,000/- and the same was procured by the Complainants to save the Patient, but the Doctors refused to administer the same to the Patient on the ground that the Patient was too young for the same . Ultimately, the Patient’s condition worsened and she suffered paralysis and died on 20.07.2004.

5.       The Complainants filed a Complaint before the Punjab Medical Association, lodged an FIR against the Doctors and the Criminal case is pending in the Court of Additional Judge Ludhiana under Section 340 (a) IPC. Thereafter the Complainant approached the State Commission seeking the following reliefs:

  1. special damages of ₹11,890,749/- (Rupees eleven lacs, eighty thousand seven hundred & forty-nine only) detailed below:

     

i.

Expenses incurred for medical treatment from 21.1.2004 to 31.3.2004”

 

Rs.1,12,764.00

ii.

Expenses incurred for Medical treatment from 1.4.2004 to 31.7.2004

Rs.6,52,750.00

iii.

Hospital expenses from 21.1.04 to 31.3.04

Rs.2,20,810.00

iv.

Hospital expenses from 1.4.2004 to 31.7.2004

Rs.1,94,425.00

 

  1. to pay general damages of Rs.50.00 lacs (Rupees 50 lacs only) on account of having lost their infant daughter of 3 ½ years of age and by suffering pain and agonyentailed therefrom;

  2. to pay any other amount by way of punitive damages on account of the aforesaid wrongful/ impugned acts of the respondents as this Hon’ble forum may deem fit;

  3. to pay interest @ 12% per annum on the amount of damages to be awarded by this Hon’ble forum in the manner stated above, from the date of institution of this Complaint till realisation.

  4. To pay the costs of the proceedings of this Complaint.

 

6.       The Hospital and the second Opposite Party i.e. the Director of the Hospital filed their joint Written Version stating that as per the post-mortem report, histopathology report, chemical examination report and the bed head ticket of the Patient the cause of death was  Toxaemia of Acute Lymphoid  Leukaemia and the treatment with anti-mitotic drugs  and Septicaemia  due to fungal infection. It is a natural process of death which occurs among patients who have received such kind of medicines. It was denied that they had charged an exorbitant amount for the treatment. It was admitted that Dr. Raman Arora was in charge of the said treatment and it was stated that the fourth and fifth Opposite Parties, were Anaesthesiologists and were not related to the department of Oncology, but admitted that they did assist in rendering  treatment  to the minor child. It was also stated that on 05.07.2004 the Patient was administered second injection of Vincristine and the last injection of Methotrexate. It was denied that the fourth and fifth Opposite Parties were present in the operation theatre when the Patient was taken there. It was stated that all treatment was rendered as per standard protocol.

7.       Dr. Raman Arora arrayed as the third Opposite Party averred in his reply that the intrathecal injection was administered by anaesthetists of the Hospital; that the child was suffering from a  terminal disease of blood cancer, which was already at an advance stage; that the treatment of the Patient was on the same line as has been suggested/ advised by the other reputed institutes where the Patient was taken for treatment and that she was insured by National Insurance Company covering the period from 24.03.2004 to 23.03.2005  for a sum of ₹10 lacs. It was pleaded that he had never given an injection to the Patient and that medication to be given was duly prescribed  and his role was only limited to the extent of giving the prescription and whatever prescribed for 05.07.2004 was mentioned in the treatment chart of the Patient.

8.       The fourth Opposite Party Dr. Vandana Bhambri, who is an Anaesthetist stated that on 05.07.2004 she was on duty from 2 p.m. and visited the Hospital in the morning to collect certain documents lying in the Hospital. She was requested by Dr. Jain, the senior surgeon to see the Patient for giving Anaesthesia and therefore she went into the operation theatre. When she was passing through the corridor, Dr. Kohli, the fifth Opposite Party called her to assist in giving lumbar puncture which he had tried three times as it was needed for administering the injection intrathetically. Hence she helped the fifth Opposite Party for giving lumbar puncture and left the Operation theatre. It was denied that she had given any injection. It was stated that the fifth Opposite Party was perfectly within his medical knowledge and totally vigilant to administer the prescribed injection.

9.       The fifth Opposite Party resisted the Complaint stating that he was a student Doctor doing D.N.B. (Anaesthesia), which is a two year course at the Hospital. On the relevant day, his duty hours were from 2.00 p.m. to 8.00 p.m. and he denied giving any wrong injection to the Patient and further stated that he did not administer any injection to the Patient and further that this injection could have been given in the Chemotherapy ward.

10.     The seventh Opposite Party, namely, National Insurance Company adopted the Written Version by the third Opposite Party and the sixth Opposite Party, namely, Oriental Insurance Company filed their reply by way of Affidavit of their Assistant Manager.

11.     Based on the evidence adduced, the State Commission allowed the Complaint with the aforenoted directions and observed as follows:

“29. There is no dispute about it that already there was a fixed central line in the chest of baby Arshiya for giving injection intravenously. Therefore, for giving medicine injection Vincristine of 1 mg which was of transparent liquid it was only to be administered in the central line. Therefore, respondent NO.5 has acted with callousness and gross negligence. Respondents No. 1 to 3 had also acted with gross negligence as they allowed a student  to administer injection to a serious patient without the presence of respondent No.3 or some other expert. It was also admitted by Dr. Vandana Bhambri that after 5.7.2004, condition of Arshiya gradually started worsening. It again suggests that the injection was given in a wrong manner by respondent No.5. She further admitted that father of Arshiya had protested afterwards that wrong injection had been given and Dr. Raman Arora was also informed about giving of wrong injection. The fact that father of baby Arshiya and Dr. Raman Arora was informed about the wrong injection again proves that in fact injection Vincristine was given by intrathecally route and not by intravenous route which caused worsening condition of Arshiya who ultimately died on 20.7.2004. It is mentioned in para-21 of the complaint that she had suffered ascending paralysis and ultimately died on 20.7.2004 i.e. after 15 days of administering of injection in a wrong manner.

30. Counsel for respondents contended that post-mortem report, chemical examination report annexure R-1/8 collectively and Histopathology report dated 16.8.2004 annexure R-1/7 collectively show that the cause of death was toxaemia of acute lymphoid leukemia and the treatment with anti mitotic drugs and septicaemia due to fungal infection which had played a role in accelerating the process of death. The autopsy was done after 15 days. Even other reports are after the death of Arshiya i.e. after 15-20 days. There cannot be any trace of Vincristine medicine in the abdomen etc. There cannot be any trace of Vincristine medicine in the abdomen etc. It is admitted by Dr. Vandana Bhambri that condition of Arshiya started worsening after 5.7.2004, although, she was improving earlier.  Certainly this could be due to result of administering of injection in a wrong manner i.e. giving injection intrathecally instead of intravenously.  The opinion given by the medical board about the cause of death of Arshiya is not definite.  There is no dispute about it that she was suffering from deadly disease i.e. blood cancer but it does mean that by acting in negligent manner respondent should hasten her death.  The chemical report does not state anything.  It only shows that no poison was detected.

31.         The Histopathology report of Vicera is dated 16.8.2004 which is Annexure R-3/1 which shows that the cancer cell had spread to all parts of the body.  There is no dispute that she was suffering from blood cancer but she was improving and administering of injection in a wrong manner hastened her death.  As per report of Histopathology there was haemorrhage in brain tissue and necrotic material.  Certainly haemorrhage had taken place due to administering the medicine in a wrong manner.

32.         It has been held time and again that the doctor who possesses requisite qualification and skill in undertaking the task of administering the medicine in respect of any particular disease should do so with utmost care and caution and if he does not do so, he acts in a negligent manner.  The cross-examination of respondent no. 5 – Dr. Harjit Singh Kohli shows that he did not know as to what medicine he was to administer to Arshiya and in what manner that was to be administered.  He did not seek any instructions from his senior or respondent no. 3.  Therefore, negligence on his part is writ large and it is a case of res ipsa loquitur.

33.         It is true that simple lack of care and error of judgment or accident is no proof for negligence as long as the doctor follows the practice acceptable to the medical profession of that day but here is a case where respondent no. 5 Dr. Harjit Singh Kohli had exhibited total ignorance or we can say gross negligence in administering the injection to Arshiya.  The very fact that Arshiya was suffering from blood cancer, a deadly disease and may not have survived for a long does not mean or could not give a licence to respondents to treat her in a negligent manner.  Still, there was a ray of hope for the parents of Arshiya, since, she was improving.”

12.     The brief point that falls for consideration is whether the injection Vincristine was administered intravenously or intrathecally; if the said administration has accelerated the death of the Patient and if there was any negligence on behalf of the Hospital  and the treating Doctors.

13.     The Hon’ble Supreme Court in Dr. S.K. Jhunjhunwala Vs. Mrs. Dhanwanti Kumari & Anr. (2019) 2 SCC 282, relying on the principle of Bolam Test has observed that 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, with reasonable competence in the given case, the skill which he did possess.

14.     It was held that the standard to be applied for judging whether the person charged has been negligent or not would be that of an ordinary competent 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 practices.  His Lordship quoted with approval the subtle observations of Lord Denning made in Hucks vs. Cold (1968) 118 New LJ 469, namely, “a medical practitioner was not be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another.  A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”   Hence the issue whether the Treating Doctor was negligent or not is to be tested on the touchstone of the afore-noted Principle.        

15.     Learned Counsel appearing for the Hospital and the Doctors vehemently contended that the injection Vincristine was not administered on 05.07.2004 and that the said injection was only administered in the support ward i.e. in the Chemotherapy ward and that admittedly on 05.07.2004, Dr. Harjit Singh Kohli had never taken the Patient to the operation theatre and therefore the question of giving Vincristine injection does not arise. It was submitted that injection Methotrexate was to be administered to the Patient on that date, which was administered intrathecally  and can be administered in an operation theatre. He further contended that the State Commission has erred in giving a finding that Vincristine was administered by an anaesthetist.  The Patient was suffering from blood cancer which was at an advanced stage and though she was responding to the treatment it cannot be said that the deterioration of the condition was only because of any wilful negligence by the Hospital and the Doctors. The Complainants were present outside the operation theatre and could not have any knowledge about any injection being administered to the Patient on 05.07.2004. Learned Counsel also argued that the Hospital or the treating Doctors never prescribed ‘Enbrel’ which is the antidote for Vincristine injection. Therefore the question of refusal on the part of the doctors in administering the same does not arise. The Histopathology report and the chemical examination report read together with the post-mortem report does not anywhere state that the death was due to Vincristine injection administered on 05.07.2004. It is also the case of the Appellants that the State Commission failed  in not considering the expert report of the Medical Board, Department of Forensic Medicine, Government Medical College, Amritsar which had opined that the cause of death in the present case was Toxaemia of Acute Lymphoid Leukaemia. He also further argued that Dr. Raman Arora had stated in his Written Version and in his Affidavit by way of evidence that he had issued a prescription dated 05.07.2004 and according to that prescription Vincristine injection was not to be administered to the Patient and that the report of Indian Medical Association does not correspond to the Written Statement of the Doctors and therefore cannot be relied upon.

16.     It is also the case of the Appellants that the State Commission has not taken into consideration the medical literature, which was filed by them; that the State Commission has also erred in concluding that Dr. Harjit Sing Kohli, despite knowing as to which injection was to be administered to the Patient, wrongly gave Vincristine to the Patient intrathecally which accelerated the death of the Patient.

17.     The facts not in dispute are that the Patient was 3 years old and suffering from Leukaemia; she underwent bone marrow examination at  Dharamshila Cancer Hospital and Research Centre, which was suggestive of CALLA positive B cell ALL. She underwent Chemotherapy for first two weeks and was discharged on 17.02.2004. Thereafter the Patient was admitted at the Appellant Hospital wherein the main contention of the Complainants is that after three cycles of Chemotherapy including 9 injections of Vincristine and 13 injections of Methotrexate, in the fourth cycle of treatment effective on 05.07.2004, the last dosage of Vincristine was given intrathecally, which accelerated the death of the Patient. For better understanding of the case the final impression of the histopathology report is reproduced as hereunder:

Final Impressions:     

  1. Leukemic cells though in small foci were seen in all the viscera viz. meninges, brain liver, spleen & kidney.

  2. Brain tissue was showing mostly congestion, intracerebral haemorrhages, necrosis with additional evidence of fungal infection.

  3. Part of akin showing inflammation & oedema. Seem to be a local reaction to irritative effect of injection.

  4. Changes in spinal cord (oedematous foci with a few areas showing degenerative changes) could also attributed to local irritative reaction.

  5. Kidney & liver tissues were showing damages (reversible & irreversible) to most of its parenchymal t6issue, hence were likely to have markedly impaired functioning.

  6. Fungal Infection was seen markedly in renal tissue & also appreciated in brain tissue. The mode of spread seem to be via blood, therefore involvement of other tissues cannot be ruled out. ”

18.     The cause of death given by the expert is detailed as hereunder:

“On going through Post Mortem Report, Histopathology report, Chemical Examiner report and Bed Head Ticket of the above quoted subject the board is of the opinion that cause of the death in this case is toxaemia of acute lymphoid leukaemia which is sufficient to cause death in ordinary course of nature. However, treatment with  antimitotic drugs  and septicaemia due to fungal infection might have played the role in accelerating the process of death.

Dr. Hakumat Rai          Dr. Ashok Chanana           Dr. Kirpal Singh

Chairman                             Member                           Member”

(Emphasis supplied)

 

19.     It is the case of the Complainants that the injection was given to Dr. Harjit Sing Kohli as he was coming out of the operation theatre. Be that as it may, the said doctor in his cross examination before the State Commission has deposed as follows:

“ I do not know if the color of the (two medicines) are different. I did not know if the injection of Vincristine was to be given intravenously while the injection of Methotrixate was to be given intrathecally. Dr. Vandana did not tell me about the two different modes of injecting the medicine. I did not receive any instructions from Dr. Raman Arora about the prick, which was to be given by me. I had given the prick intrathecally to Arshiya, which I was unable to do. I made three attempts but was unable to do so. Thereafter, I handed over the needle to Dr. Vandana as I was unable to do so and the then administered the injection. I only handed over the needle to Dr. Vandana and not the injection. I do not know which injection was administered by Dr. Vandana. I do not know when I was giving the prick, which medicine was to be administered. I did not call any person from Oncology Department to assist me. I only know that once injection was administered to Arshiya (by Dr. Vandana) in my presence and that of Dr. Vandana and Technical  Staff, the father of Arshiya told us that wrong injection has been administered, then we came out. I do not report any fact to Dr. Raman Arora. I do not know if bone marrow etc. had been performed on Arshiya after completion of third cycle of medicine. I did not have any consultation with Dr. Raman Arora about the injection and the medicine administered to Arshiya during her stay till her death. I cannot say if after 5/7, her condition worsened due to wrong administration of medicine and ultimately, she died on that score. After the episode of 5/7, I acquired knowledge that given injection of Vincristine intrathecally or otherwise than intravenously was bound to be fatal.

(Emphasis supplied)

 

20.     It is not disputed that the central line was already fixed in the chest of the Patient for giving injection intravenously and that the injection Vincristine of 1 mg was a transparent liquid. From the deposition it is clear that the fifth Opposite Party had administered the medicine and he has admitted that he was not in the knowledge that it was to be administered intravenously.

21.     In 1969, the Supreme Court in the case of Dr.Laxman Balakrishna Joshi v. Dr. Trimbak Babu Godbole AIR 1969 SC 128 held:-

A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose,

1. he owes a duty of care in deciding whether to undertake the case,

2. he owes a duty of care in deciding what treatment to give and,

3. he owes a duty of care in the administration of that treatment.

 

A breach of any of these duties gives a right of action for negligence to the patient.

22.     This means that when a medical professional, who possesses a certain degree of skill and knowledge, decides to treat a patient, he is duty bound to treat him with a reasonable degree of skill, care, and knowledge. Failure to act in accordance with the medical standards in vogue and failure to exercise due care and diligence are generally deemed to constitute medical negligence.

23.     It is the contention of the Learned Counsel for the Appellant that the medical literature filed before the State Commission was not considered by the State Commission. A perusal of the medical literature filed does not anywhere state that the Patient suffering from this kind of cancer i.e. leukaemia will expire within any particular period of time. It also does not anywhere state that there is no hope of survival in such a type of cancer. Be that as it may, the point for consideration is not whether the Patient would die anyway. Such a stand, we hold is not only callous, but also irrelevant to the issue in hand.  The issue to be considered herein is as to whether there is any negligence by the Hospital and Doctors in administering the Vincristine, which hastened the death of the Patient.

24.     Now we address ourselves to the contention of the Learned Counsel appearing for the Hospital and Doctors that the Patient was already suffering from cancer and that administration of the injection or otherwise  would not have hastened the death of the Patient. It is an admitted fact that the Patient had shown improvement after the three cycles of Chemotherapy therefore there is hope that the Patient would recover. There is no documentary evidence filed to substantiate the plea of the Appellants herein that the Patient had not shown any improvement after the three cycles of Chemotherapy and would not have survived. Admittedly, the cause of death was Toxaemia which led to Septicaemia and fungal infection. Admittedly, though the Patient first showed improvement after the three cycles of Chemotherapy, her condition worsened after 05.07.2004. The Hon’ble Supreme Court in Smt. Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 56,  has clearly laid down that the onus is on the Hospital and the treating Doctor to explain the exact line of treatment rendered which resulted in the incident. In the instant case, there is no explanation forthcoming as to why the Patient, who had substantially improved after three cycles that Chemotherapy had shown complete deterioration after 05.07.2004.

25.     The contention of the Learned Counsel that Dr. Raman Arora, who was head of the Medicine Department and has also written ‘the Protocol’ is not liable as he did not administer the medicine, is totally untenable in the light of the fact that admittedly the entire standard protocol was given by Dr. Raman Arora and moreover the entire treatment was rendered under his care and is therefore he is liable for any acts/ commission or omissions done by his team or the assistants who assisted him in rendering treatment to the Patient.

26.     In P.B. Desai vs State of Maharashtra & Anr. (2013)15 SCC 481, the ‘Duty of Care’ which a doctor owes towards his patient has been clearly explained as follows:-

“Once, it is found that there is ‘duty to treat’ there would be a corresponding ‘duty to take care’ upon the doctor qua/his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the principle of ‘duty to take care’ is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal ‘duty to treat’ may arise in a contractual relationship or governmental hospital or hospital located in a public sector undertaking. Ethical ‘duty to treat’ on the part of doctors is clearly covered by Code of Medical Ethics, 1972. Clause 10 of this Code deals with ‘Obligation to the Sick’ and Clause 13 cast obligation on the part of the doctors with the captioned “Patient must not be neglected”.

27.     Having regard to what the Hon’ble Supreme Court has laid down about  ‘Duty of Care’  to be followed by medical professional, viewed from any angle it cannot be construed that ‘Duty of Care’   of the treating Doctor/ head of the department, who is in this case has written the ‘Protocol’, ‘Ends’ with giving the Prescription. At the cost of repetition, we are of the considered view that the Doctor is vicariously liable for the acts of his team which assists him in every  sphere in rendering treatment to the Patient.

28.     The State Commission has rightly relied on expert opinion given by the Indian Medical Association, Ludhiana. The report is detailed as hereunder:

“To

The President

I.M.A.,

Ludhiana

Subject:- enquiry report  into the Death of Ms. Arshiya.

Sir,        

With the regards we state we have conducted the enquiry in the episode of the unfortunate death of the kid in Oswal Hospital who had been suffering from Acure Pymphobytic Leukemia.

  1. At the outset we feel extremely sorry on the demise of Ms. Arshiya a student of LKG. We have no words to offer to the aggrieved family and have full sympathy withthe family.

  2. The enquiry committee constituted consisted of Dr. Satish Nauhria, Dr. Dinesh Trehan and Dr. Vinod Sood from IMA, besides the doctors from Oswal Hospital and members of the aggrieved family.

  3. The kid who had been suffering from ALL had come in for routine Chemotherapy injections. The kid was handed over to Dr. Harjit Singh Kohli an anaesthetist in Oswal Hospital. Patient’s attendants handed over the injection to the doctor which was to be administered intra thecal i.e. in the back bone.

  4. The concerned doctor without taking the file etc. of the patient and without identifying the injection and reading the instructions tried to give it intrathecalwhich was not advisable as that particular injection was Vincristine which is only of intravenous use.

  5. The said doctor i.e. Dr, H S Kohli tried to inject the injection and gave two to three pricks and could not be successful. Giving intrathecal injections is a tedious job and at times doctors remain unsuccessful despite havingvast experience.

  6. Dr. Harjit Kohli at that particular time took the help of his senior Dr. Vandana who made the needle been a great help to the kid in the earlier cycles of Chemotherapy as well.

  7. The committee is of the view that the role of Dr. Vandana was of a helping hand to Dr. Kohliof course without knowing the contents of the injection. This type of helping attitude is very common in medical practices.

  8. The Committee concludes that whatever happened in Oswal Cancer Hospital was a mistake on the part of the doctors, which lead to an accident and further complications leading on to death of the patient.

  9. IMA on its part duly apologises to the aggrieved family for this happening at the hands of the Medical people.

  10. As per the information of the committee members the deceased has undergone autopsy. You may refer to the report of the concernedautopsy for further information.

  11. The enquiry committee also want to bring into your kind consideration that the observations made above are based on the verbal admission of the doctors. Their written statements however do not correspond to their verbal admission.

     

    Dr. Satish Nauhria

    Dr. Dinsesh Trehan

    Dr. Vinod Sood.”

    (Emphasis supplied)

29.     Keeping in view the deposition, the discharge summary, the treatment record and the Expert Opinion we are of the considered view that there was negligence on behalf of the Hospital and the treating Doctors in administering Vincristine to the Patient intrathecally.

30.     The Hon’ble Supreme Court in Achutrao Haribhau Khodwa vs. State of Maharashtra & Ors., 1996 (2) SCC 634, has laid down that the Hospital is vicariously liable for the acts of the Doctors. Hence we hold that the Hospital too, in the instant case, is liable for the act of negligence committed.

31.     For all the aforenoted reasons, read together with the documentary evidence, the cause of death and the deposition of the Doctors and further keeping in  view the judgement of the Hon’ble Supreme Court in Achutrao Haribhau Khodwa (Supra), Laxman Balakrishna Joshi (Supra),  Dr. P. B. Desai (Supra), Smt. Savita Garg (Supra) and Dr. S.K. Jhunjhunwala (Supra),  we are of the considered view that the                   Hospital and treating  Doctors were negligent in the treating the Patient             and therefore, we see no ground to interfere with the well-considered                order of the State Commission including the quantum of compensation.        Having held that the Hospital and the Doctors are negligent, we             observe  that the role of the Insurance Companies is limited to the extent of the indemnification and the sum insured. It is evident from the record that National Insurance Company has insured Dr. Raman Arora for a sum of ₹10,00,000/- and Oriental Insurance Company has issued an Indemnity Policy for the Hospital for a sum of ₹10,000,000/-, Hence we do not find any illegality or infirmity in the order of the State Commission further directing the Insurance Companies to pay the amount in equal shares, if recovered from them, but not exceeding the sum insured.

32.     In the result, First Appeals No. 208, 292 and 373 of 2008 are dismissed accordingly, no order as to cost. The statutory deposits in all the three Appeals stand transferred to the Complainants with interest accrued if any.

33.     Needless to add, the amount deposited/ withdrawn shall stand adjusted from the decretal amount.

 
......................J
R.K. AGRAWAL
PRESIDENT
......................
M. SHREESHA
MEMBER