NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 244 OF 2008
 
(Against the Order dated 01/04/2008 in Complaint No. 46/1998 of the State Commission Delhi)
1. MEDICAL SUPERINTENDENT LOK NAYAK JAI PRAKASH NARAIN HOSPITAL & ORS.
Lok Nayak Jai Prakash Narain Hospital Jawahar Lal Nehru Marg
Delhi-110002
2. The Principal Secretary
(Medical & Public Health), Government of NCT of Delhi, 5, Sham Nath Marg
Delhi-110054
3. LT.Governor
Through Chief Secretary, Govt.of NCT Delhi 5,Sham Nath Marg
New Delhi
...........Appellant(s)
Versus 
1. KM. SANTOSH (MINOR)
Through her Father & Legal Guardian R/o Village Chilla P.O.Kichripur
Delhi-110092
...........Respondent(s)

BEFORE: 
 HON'BLE MRS. M. SHREESHA, PRESIDING MEMBER

For the Appellant :
Mr. Sanjay Dewan, Advocate with
Mr. Anil Kumar, UDC
For the Respondent :
Mr. Raj Kumar Rajput, Advocate
Mr. Ajit Rajput, Advocate
Mr. Mam Chand, Father of Respondent

Dated : 14 Mar 2016
ORDER

Per M. Shreesha, Presiding Member  

 

1.       This Appeal, under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”), is directed against the order dated 01.04.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short “the State Commission”) in Complaint No. 46 of 1998.  By the impugned order, the State Commission allowed the Complaint in part, directing the Opposite Parties to jointly and severally pay an amount of ₹5,00,000/- towards compensation within a period of one month from the date of receipt of copy of the order.

2.       The brief facts, as stated in the Complaint, are that Kumari Santosh (in short “the Patient”) was a minor girl aged 11 years, suffering from headache, and was taken to Lok Nayak Jai Prakash Narain Hospital, New Delhi and was admitted there as Indoor Patient in the unit of Dr. P. Chaudhury on 29.01.1996.  The details of admission with the respective dates of discharge are as follows:

S.No.

Admission CR No.

Date

Date of Discharge

1.

928332

29.01.1996

02.02.1996

2.

954855

24.07.1996

13.08.1996

3.

973670

12.11.1996

12.12.1996

4.

502197

26.01.1997

18.03.1997

5.

40469

20.10.1997

12.11.1997

 

 

3.       The Complainant averred that despite undergoing several tests and taking medicines, the Doctors of the said unit could not diagnose the Patient’s disease properly and gave her wrong medicines, which had affected her eyes and she had become blind.  Thereafter, due to the wrong injection, which was given in the left leg at the same place where glucose was administered, the said leg had turned blue and gangrene developed, on account of which it was amputated.  The Complainant submits that he faced severe financial problems and his daughter, who is the Patient herein, had suffered mentally and physically.

4.       In this background, the Complainant filed a Complaint before the State Commission, seeking a compensation of ₹10,00,000/- from the Opposite Parties, on account of the negligent medical treatment rendered by them.

5.       The Opposite Parties filed their reply before the State Commission, stating that the Patient was admitted initially at RML Hospital twice and was given the same treatment, which had given some relief.  It is averred that Patient was cured of her primary disease, which was not diagnosed at RML Hospital and was then brought to the Opposite Party Hospital.  It is admitted that the Patient was suffering from headache and it is averred that the investigations done showed that the cause of headache was due to Neurocysticercosis (Cysticercal), which is a type of parasitic infection, with Encephalitis (inflammation of the brain).  This was diagnosed by the efforts of the Unit Doctors on the basis of costly investigations like MRI, which, the Opposite Parties submit, was arranged free of cost to the Patient.  The Patient unfortunately had extensive Neurocysticercosis with Encephalitis, which is a life threatening condition.  The Patient survived only because of appropriate treatment done by the Doctors and the paramedical staff.  It is further pleaded that blindness is a known complication of the disease and that MRI report had also shown cysticerci in the orbit bilaterally (both eyes), which raised intracranial pressure.  Because of the critical nature of the disease, the Patient required intravenous glucose and several other injections, including Mannitol, for a long period of time.  The disease process, development of ulcer in a semi-conscious patient and fluids and injections, all contributed to emergence of dry gangrene, for which amputation was required.

6.       The Opposite Parties denied that there was any negligence on their behalf and submitted that Neurocysticercosis is not common in children, which unfortunately the Patient had contracted and became disabled.

7.       The State Commission based on the evidence adduced allowed the Complaint, granting ₹5,00,000/- compensation, and observed as follows:

“15.    …  Neither CT scan was taken nor was the patient referred for ophthalmic surgery knowing it very well that blindness is a well-known complication of the disease process the child was suffering from.  Nor the cause for developing dry gangrene has been spelt out by the O.P. and there is no other inference for dry gangrene except that heavy doses or wrong doses of I/Vs including injection of Mannitol were given for a long duration.  Development of dry gangrene is not a direct result of the disease as the child was diagnosed with Neurocysticercosis and the only known complication was blindness.  Not only the child lost vision due to wrong treatment without subjecting her to CT scan, which is recommended, but the child also lost her leg, which has no connection whatsoever with Neuro-Cysticercosis with Encephalitis.

 

16.     Aforesaid circumstances as well as the deficiency in not first carrying out CT scan and not referring the patient for ophthalmic surgery as in the case of ocular cysticercosis as there was threat of loss of vision, it appears that the child was not taken care of properly.  She was administered I/V Glucose and several other injections for a long duration, which caused dry gangrene for which amputation became unavoidable.  The inference of negligence or lack of proper treatment, wrong treatment, overdoses of certain injections or I/Vs can be easily drawn from the circumstances. 

 

18.     Taking overall view of the matter and the fact that the young girl has to now live the whole life not only as a blind person but also with one leg, as she lost one leg also due to dry gangrene, we deem that a compensation of Rs.5.00 Lac (Five Lac) shall meet the interests of justice.  This shall also include the cost of litigation.”

 

8.       Aggrieved by the said order, the Opposite Parties have preferred this Appeal.

9.       Heard the learned Counsel for the Appellants/Opposite Parties and also the Counsel for the Respondent/Complainant at length.

10.     Learned Counsel for the Appellants submitted that the MRI was done, which is a more advanced form of CT scan, by way of preliminary investigation and the Patient was diagnosed to have Neurocysticercosis with Encephalitis.  He further contended that though there was no mention of conduction of CT scan in the Complaint, the State Commission had allowed the Complaint on the ground that the CT scan, which is a preliminary investigation, was not done by the Appellants herein.

11.     A brief perusal of the treatment record filed before us shows that the final diagnosis is Neurocysticercosis with Encephalitis.  It is an admitted fact that the Complainant had admitted his daughter (the Patient) in the Opposite Party Hospital on 29.01.1996 and she was discharged on 09.02.1996 and during this period of ten days she suffered from low to moderate grade fever, vomiting and drowsiness.  On investigations done, a serum had tested positive for Neurocysticercosis and an MRI was done, which showed that there were live Neurocysticerci. It is pertinent to note that the copy of the MRI report had not been filed.  Page-18 of the paper-book, which is a typed copy of the treatment record, shows “CT scan from RML December 1995/17.1.96 suggestive of Neurocysterci NCC”.  The report of the CT scan or the diagnosis given by the RML Hospital is also not stated in the treatment record.  Page-19 states that CT scan has to be done again after 12 weeks.  Once again, the Patient was admitted on 29.07.1996 and discharged on 13.08.1996.  The discharge summary reads as follows:

“Date of admission:  29.07.96

Date of discharge  :  13.08.96

 

Presenting complaint : child was on oral steroids and Gyscerol and anticonvlsant on follow up 15 days back child had chickenpox following which has stopped all medication.  Now headache, vomiting, decrease in vision since 7 days.  No history of dystonic posture, no history of fever, seizure, focal deficit.

 

On examination, conscious, irritable, HR-96, RR-38, Pallor/Icterus (-)

 

B/L Papilloedema (+), No neck stiffness, Pupils semidialated (drug induced) Tone normal) DTR ankle bilateral brisk planter up going, knee & elbow – WNL, clonus (+), Chest NAD, CVS NAD, P/A NAD

 

INVESTIGATION

 

Lubar Puncture gross clear M/E P10L75

 

Ear Pus Culture sensitivity Pseudomonas aeurignosa Sensitive to Amikacin, Cefo, Genta, Neti, Cipro, Ceftazidime Pipera

 

Ultrasound Orbit No cyst seen Optic nerve thickened

 

MRI presence of Cysticercus in Cerebellar mid brain thalamus basal ganglia cerebral cortex

 

Treatment given

 

Tab Dilantin 100 mg HS

Inj. Mannitol 150 IV 8 hourly

Inj. Decadron 1 mg IV 8 hourly

Syp. Digene gel 2tsf 6 hourly

Syp. Glycerol 1.5 tsf TDS

 

1.8.1996

 

Inj. Mannitol only SOS

Geticy Ear drops

Inj. CP 10,00,000 IU IV infusion 4 hrly

Inj. Gentamyciun 50mg IV 8 hourly

 

2.8.1996      Cap. Chioro 500mg 6 hourly

 

3.8.1996      Inj. Diazepam 5mg IV stat

 

8.8.1996      Tab Lasix ½ tab TDS

                   Tab Dilantin 100mg HS

                   Tab Prednisolone 5mg

                   Syp Glycerol to continue.

 

Treatment on Discharge

 

Tab Tilantin 100mg HS

Tab Prednisolone 5mg with Digene

Tab Lasix 1/2 tab TDS

Syp. Glycerol 1.5 tsf TDS

 

To come for follow up on Monday/Thursday every week

To report to Guru Nanak Eye Centre (GNEC) for review.

 

Final Diagnosis

 

Neurocysticercosis with bilateral Pipilloedema with Exopthalmos with bilateral 6th nerve palsy

Encephalitic Neurocysticercosis”

 

12.     From the aforementioned discharge summary, it is clear that the Patient had Pseudomonas, which is a common hospital derived infection, for which no reasons are given by the Appellants herein.  The medication given for this infection has also not been stated.  Once again, on 26.01.1997 the Patient was admitted in the Hospital and discharged on 12.03.1997.  In the Patient’s history, it is stated that the Patient is a case of Neurocysticercosis with Encephalitis symptomatic since two and a half years.  When the Patient was diagnosed to be having Neurocysticercosis and also had infection of Pseudomonas, the Appellants have not filed any medical literature or the case sheet to establish that they have followed all the procedures, as is the norm under the standard medical parlance.  It is an admitted fact that the Patient had developed gangrene and her left foot was amputated and she had also gone blind.  She was once again admitted on 20.10.1997 and discharged on 22.11.1997 with complaints of seizure and inability to walk.  Amputation of left leg below the knee was done.

13.     Vide orders dated 16.02.2015 and 07.07.2015, this Commission had directed the Appellants herein to file the requisite documents and vide order dated 16.11.2015 one final opportunity was granted to them to file all the documents within four weeks, with the stipulation that if the same are not filed within the time granted, the Appeal would stand dismissed without further reference to the Bench. Subsequently, the Appellants filed the treatment record on 11.12.2015 but have not chosen to file the case sheet or the consent form.  To reiterate, there are no details with respect to the report of the MRI and also the CT scan, if it was done after 12 weeks.  The discharge summary dated 09.02.1996 states that the CT scan has to be done after 12 weeks (i.e. by 09.05.1996, 12 weeks from first discharge date) but the subsequent discharge summaries dated 13.08.1996 and also 12.03.1997 do not specify if any CT scan was done nor was any such report filed.   

14.     Reliance can be placed on the judgment of the Hon’ble Supreme Court in Savita Garg Vs. National Heart Institute (2004) 8 SCC 56, wherein it has been laid down that if the Complainant makes out a prima facie case against the hospital/treating doctor, the onus shifts on the hospital/treating doctor to establish that all care and caution was taken and that standards of normal medical practice were adhered to.

15.     What constitutes medical negligence is now well established through a number of judgments of this Commission as also of the Hon’ble Supreme Court.  Based on the touchstone of the Bolam’s test [Bolam Vs. Friern Hospital Management Committee (1957) 1 WLR 582], one of the principles is that whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field.  In this connection, the Hon’ble Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury’s Laws of England (4th Edn., Vol.30, para35), as follows:

“35.    The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care.  Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way; …”   

 

16.     Looking at the facts in the instant case, it is very clear that this practice was not adhered to by the Doctors in the Appellant Hospital.  In the instant case, neither the case sheet nor the consent form was filed; the report of the CT scan, which was planned after 12 weeks, is also not filed; reasons for the development of Pseudomonas were not given; there is no medical literature filed with respect to how a hospital derived infection like Pseudomonas had developed; what was the treatment given for such infection; it is not clear if the informed consent was taken and the prognosis was explained to the Complainant; and the reasons for development of gangrene, which led to the amputation of the left foot, are not substantiated by way of any documentary evidence.    

17.     It is the primary responsibility of the hospital to maintain and produce patient records on demand by the patient or appropriate judicial bodies.  However, it is the primary duty of the treating doctor to see that all the documents with regard to management are written properly and signed.  An unsigned medical record has no legal validity.  The patient or their legal heirs can ask for copies of the treatment records that have to be provided within 72 hours.  The hospital can charge a reasonable amount for the administrative purposes including photocopying the documents.  Failure to provide medical records to patients on proper demand will amount to deficiency in service and negligence.  It is the duty of doctor or hospital to preserve, maintain the medical record for certain specified period under different laws like Limitation Act, Consumer Protection Act and the Directorate General of Health Service (DGHS), Prenatal Diagnostic Test Act, 1994, the Clinical Establishments (Registration and Regulation) Act, 2010 (Central Act No. 23 of 2010).  These records are required in medical negligence, accident, insurance claims and in criminal cases also in the Labour Courts.  Hon’ble Supreme Court and the National Consumer Commission in various judgments held the hospitals/doctors liable for medical negligence for non-production of medical record.

18.     In the absence of the case sheet and also the consent form, I do not see it a fit case to interfere with the order of the State Commission, more so when the State Commission has not awarded any interest by way of damages.

19.     I also observe from the record that the minor child who had become blind and lost her left foot had expired on 30.08.2011 during the pendency of this Appeal.

20.     In the result, this Appeal fails and is dismissed accordingly, with costs of ₹10,000/-, to be paid by the Appellants to the Complainant.  The time for compliance of the impugned order as also for the payment of costs is four weeks from the date of the receipt of a copy of this order, failing which the decretal amount would carry interest @ 9% per annum from the date of this order till realization.            

21.     The statutory deposit shall stand transferred to the Consumer Welfare Fund by way of a Bank Draft drawn in favour of PAO, Ministry of Consumers Affairs, New Delhi.

 
......................
M. SHREESHA
PRESIDING MEMBER