IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                 Date of Decision:18.04.2017

Complaint No. 161/2003

In the matter of:

1.    ShriB.R.Saini

S/o Sh. Chandagi Ram

2.      Mrs. ManjuSaini

        W/o Late ShriTrilok Singh

3.      Master MukulSaini

        S/o Late ShriTrilok Singh

4.      Miss VipulSaini

        D/o Late ShriTrilok Singh

5.      Smt. Birmo Devi

        W/o ShriB.R.Saini

 

All residents of

B-15, NayaBaazar

Najafgarh,New Delhi-110043.                                   …….Complainants                                                                                                                               

 

1.    Lions Hospital & Research Centre

      Through its Administrator/Director

      Village Khizabad

      Near B Block

      New Friends Colony

      New Delhi                                            …..Opposite Party No. 1

 

2.    Sh. MitulPrakash

      (Legal Heir of Dr. Braham Prakash)

      S/o Late Dr. Braham Prakash

      R/o C-9/14, Qutub Enclave, DLF Phase-I

Gurgaon.                                             ….Opposite Party No. 2

 

3.    Sh. AshishSrivastava

      S/o not known

      R/o B-42, Law Apartments

      Karkardooma, Delhi-110092.                    ……OppositePartyNo. 3

 

4.    Mrs. LataPrakash

      (Legal Heir of Dr. Braham Prakash

      R/o C-9/14, Qutub Enclave, DLF Phase-I

      Gurgaon.                                             …..Opposite Party No. 4

5.    Mrs. Monica Saksena

      W/o Dr. PankajSaksena

      (Legal Heir of Dr. Braham Prakash)

      D/o Late Dr. Braham Prakash

      54583, White Tail Drive, Mishawaka

      Indiana-46545 USA                                ……Opposite Party No. 5

 

6.    United India Insurance Co. Ltd.

      Division VII

      10203, Jamuna House 3rd Floor

      Padam Singh Road

      Karol Bagh

      New Delhi-110005.                        …..Opposite Party No. 6

 

7.    New India Assurance Co. Ltd.

      Indemnifier of

      Dr. AshishSrivastava                              …….Opposite Party No. 7

     

CORAM

 

N PKAUSHIK- MEMBER(JUDICIAL)

1.     Whether reporters of local newspaper be allowed to see the judgment?                      Yes

2.      To be referred to the reporter or not?                                                                     Yes

JUDGMENT

  1.         The deceased ShriTrilok Singh was admitted to Lions Hospital& Research Centre, New Friends Colony, New Delhi (in short OP No. 1) on 19.11.2001 with the symptoms of headache for five months, occasional vomiting and urinary in-continence for ten days. Prior to this, patient was examined by Dr. Braham Prakash on 16.11.2001 with all test reports who had advised surgery of the brain.  Accordingly the patient was operated upon on 20.11.2001.
  2.         The complainant who happens to be the father of deceased Trilok Singh submitted in his complaint that he went to the hospital staff for delivering the blood where he was informed that OP No. 1 hospital did not have the facility of keeping the blood.  OP No. 2 Dr. Braham Prakash (since deceased) reached hospital late and the surgery could be started only at 11.15 a.m. It was however scheduled for 10.30 a.m.  OP No. 2 Dr. Braham Prakash informed the complainant that there was excessive bleeding during surgery.  OP No. 2 did not inform him if the surgery was successful or not.  Before proceeding further, it may be mentioned here that OP No. 2 Dr. BrahmPrakash died during the pendency of this complaint on 19.05.2004 and amended memo of parties was filed by the complainant impleading his son, wife and daughter. United Insurance Company Ltd. was also impleaded as OP No. 4 as professional risk of Dr. Braham Prakash was covered under an insurance policy.  Similarly New India Insurance Company Ltd. was impleaded as OP No. 8 being the insurer covering the professional risk in respect of the services of Dr. AshishSrivastava. now impleaded as OP No. 3.
  3.         Submission of the complainant is that Dr. Braham Prakash and Dr. AshishSrivastava conducted the surgery on 20.11.2001, they both being the neurosurgeons.  After the surgery, patient became drowsy and his condition deteriorated.  Further the patient became unconscious. He went into coma on 24.11.01 at 9.00 a.m. He developed complication of respiratory depression and suffered cardiac arrest.  He died at 7.35 p.m. on 25.11.2001 in OP No. 1 hospital. Father of the deceased Shri B RSaini filed the present appeal in this Commission on 24.11.2003.
  4.         This Commission vide its letter dated 29.12.2010 referred the matter for experts medical opinion.  Medical Supdt.,R.M.L.Hospital, New Delhi provided the expert opinion to this Commission.  Relevant portion of the same is reproduced below.

“The board examined the available medical records of the patient Trilok Singh.  As per the available medical records, ShriTrilok Singh (37 Yr. M) was operated at Lions Hospital & Research Centre on 21.11.2001.  The surgery went uneventful.  Patient was conscious and oriented and obeyed verbal commands in the immediate post-op period.  Vitals were normal.  However in the evening patient became drowsy.  At the first sign of deterioration, immediate NCCT of Head should have been done for an appropriate management which was not done in the case.”

5)             Complainant also filed an RTI application in RML Hospital, New Delhi.  RML Hospital, New Delhi informed:“A Neuro Surgical Centre should have all the required facilities including C.T.Scan for diagnose as well as follow up”.

6)             Death summary of the patient as prepared by OP No. 1 hospital reads as under:-

“37 year old Trilok Singh was admitted with complaints of episodic headache for 5 months, occasional vomiting and urinary incontinence for 10 days.  MRI brain showed Rt frontal meningioma with significant mass effect.

Rt frontal craniotomy and excision of meningioma was done on 20.11.2001.  Immediate post-up period was uneventful but on 21.11.2001, he developed drowsiness, which progressively worsened.  Mannitol and eptoin therapy was initiated but he showed no improvement.  Repeat CT Scan showed sever perioperative and generalized bilateral oedema with midline shift towards  itside.

Ventilatory support was initiated as he developed respiratory depression. Tracheotomy was also done. His general condition progressively became critical despite all efforts and on 25.11.2001 at 6.30 P.M. ,he developed sudden cardiac arrest.  He could not be resuscitated despite best efforts, hence was declared dead at 07.35 P.M.

7)             Complainant submitted that doctor monitoring patient condition recorded in his notes on 21.11.2001 at 10.10 a.m. that the patient may require CT Scan of the head. Grievance of the complainant is that CT Scan or NCCT was not done.  Contention of the complainant is that had an immediate NCCT of head conducted in the morning on 21.11.01, further deterioration could have been avoided. While referring to lack of facilities at OP No. 1 hospital, complainant outlined such facilities and other deficiencies in service as under:-

          “ In reference to RTI letter dated 17.07.2009 it is to inform you that in an operation of excision of right frontal meningioma head  one may expect haematoma formation, loss of smell, motor weakness, loss of vision, endocrinal disturbance and short/long term convulsions and recurrence depending upon the size, location and nature of tumor and pre-operation status of the patient. However, by following microsurgical principles and techniques after effects/complications can be avoided or atleast minimized within acceptable limits.”

8)             Lastly the complainant submitted that the deceased Trilok Singh left behind his mother, widow, a son and a daughter. He was earning Rs. 6,000/- per month.

9)             With the sectrum of the aforesaid facts, the complainant claimed compensation to the tune of Rs., 24,56,000/- stating that he expected him (his son) to live atleastupto the age of 60 years.

10)            Defense raised by OP 1 hospital was that the patient was diagnosed as suffering from right frontal meningioma with significant mass effect.  Operation was conducted by Dr. Braham Prakash with the assistance of Dr. AshishSrivastava, both consultant neurosurgeons.  Next submission of OP No. 1 was that on 21.11.01 the patient developed drowsiness upon which Dr. AshishSrivastavawas immediately informed . Patient was diagnosed as suffering from cerebral oedema.  Contention of the OP 1 is that cerebral oedemais a post operation complication associated with neurosurgery.  OP No. 1 further submitted that the patient consequently developed ventilatory depression. Ventilator support was given. Tracheotomy was also done with   the consent of the complainant on 23.11.01.

11)            OP No. 1 hospital submitted that actions of deficiency in service are imputed to Dr. BrahmPrakash who has since expired.  OP No. 1 submitted that it was not liable for the actions of a consultant doctor. OP 1 referred to the case of Ashish Kumar Mazumdarv.Aishi Ram Batra Public Charitable Hospital Trust and Ors., MANU/DE/2479/2008. OP 1 referred to the duties of a hospital as mentioned in the aforesaid case. The same are reproduced below:

(i) A duty to use reasonable care in the maintenance of safe and adequate facilities and equipment.

(ii) A duty to select and retain only competent physicians;

(iii)  A duty to oversee all persons who  practice medicine within its walls as to patient care.

(iv)A duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for patients.

12)            In response to the allegation of lack of CT Scan facility, OP No. 1 submitted that the complainant was well aware of the same.  Dr. BrahmPrakash too also knew that there was no CT Scan facility in OP No. 1 hospital.Despite this, he had admitted the patient.  Infact the operation should have been conducted in a hospital with CT Scan facility.

13)            OP No. 1 further submitted that in the year 2001, very few hospitals in India had CT Scan facility.  It was highly expensive those days.

14)            In relation to the procedure of tracheotomy, OP No. 1 submitted that it was a routine procedure to create airways in case of ventilatory depression.

15)            In its written arguments, OP 1 stated that post operation complication of cereberaloedema was diagnosed by 21.11.2001 i.e. much before the scan was conducted. It may be mentioned here that the CT Scan of the patient was got conducted by OP No. 1 hospital from  Delhi MR & CT Scan Centre, basement Aashlok Hospital, Safdarjang Enclave New Delhi by providing its own ambulance.  Report given by Delhi MR & CT Scan Centreon CT Scan conducted on the patient on 23.11.2001 revealed as under:

Right frontal operative bone defect seen.

Right temporal-frontal massive space occupying hypodensity is roundish with internal hyperdensities.  Some peripheral air loculations too seen.  It deforms ventricular system and herniates across midline (subfalcine) callosum too might be affected.  Above it is a patch of focal edema.

Both PCA territory supplied brain parenchyma is entirely hypodense.

Left ganglonic-thalamic and extensive brainstem hypodensities seen.  Region of territorial hiatus is grossly deformed.

White matter is somewhat didfuselyhypodense.

Ventricular system is compressed and deformed with gross leftward push to midline.

Basal cisterns and cortical sulci are totally effaced.

Fourth ventricle is compressed and deformed.

OPINION: POST-OPERATIVE SCAN WITH RIGHT TEMPORAL-

FRONTAL MASSIVE SPACE OCCUPYING HYPODENSITY EVOKING ADJACENT FOCAL ODEMA(POST-OPERATIVE INTERNAL VERY MILD PATCHY HAEMORRHAGE AND SOME PERIPHERAL AIR SEEN). THERE ARE SUBFALCINE & TRANSTENTORIAL HERNIATION SYNDROMES: BRAINSTEM GANGLIO-THALAMIC & BILATERAL PCA TERRITORY HYPONDENSITY SUGGEST RECENT INFARCTS PROBABLY CONSEQUENT TO VASCULAR DISTORTION DURING HERNIATION.

16)            Dr. AshishSrivastava who assisted Dr. BrahmPrakash in the surgery filed a separate written version alongwith affidavit towards evidence stating that he was impleaded in the present complaint only on 24.05.2006 whereas the surgery was conducted on the patient on 20.11.2001.  OP 3 has relied on the case of RamalingamChettiarv.P.K.Pattabiraman, 2001(4) SCC 96.  Para 5 of the judgment is relevant and the same is reproduced below:

“Section 21 of the Limitation Act provides that where after the institution of a suit, if a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted or added, when he was so made a party.  In view of Section 21 of the Limitation Act, so far as the State of Tamilnadu was concerned, suit filed by the respondent has to be treated as instituted when the application for impleadment of the State of Tamilnadu was allowed i.e. on 11.10.1979 and by that time the suit stood barred by time”

17)            There is no dispute with the proposition that a complaint is treated as instituted against a person when an application for impleadment on that person is allowed.  Dr. AshishSrivastava assisted in the surgery on 20.11.2001and he was impleaded on 24.05.2006.  Clearly a complaint against him is barred by time as the limitation prescribed under the Consumer Protection Act 1986 is two years for instituting a complaint.

18)            On merits OP 3 Dr. AshishSrivastava submitted that there was no expert opinion submitted by the complainant and there was no deficiency in service alleged against him he being an assistant to Dr.BrahmPrakash. As discussed above, this Commission called for an experts’ opinion which was provided by RML Hospital, New Delhi. In so far as the ‘deficiency in service’ is concerned, a surgery is conducted in closed doors and it is difficult to segregate the role played by each doctors.

19)            OP No. 6 i.e. United India Insurance Company admitted that Dr. BrahmPrakash since deceased had taken a policy from OP 6.  OP 6 simply averred that he could not be held liable for such deficiency on the part of Dr. BrahmPrakash.

20)            OP No. 7 i.e. New India Assurance Company Ltd. admitted that indemnity policy in favour of Dr. AshishSrivastava for the period from 05.11.01 to 05.11.02 was issued. Parties placed on record their affidavits towards evidence and filed written arguments as well.

21)            Arguments were addressed at length by the Counsel Sh.ASKulshresht appearing for the Complainant, Ms. VrindaBhandari Counsel for the OP No. 1 and Sh.Y.RajgopalaRao for the OP No. 3 and Sh. NitinPrakash for the OP No. 6.

22)            Ld. Counsel for the OP No. 1 argued that the complainant failed to prove that there was any deficiency of service on the part of OP No. 1 hospital or the treating doctors.  Perusal of the pleadings shows that the complainant has not pointed out any deficiency in the administration of medicines.  Complaint is based mainly on the allegation that the OP No. 1 hospital did not have the facility of CT Scan. Because of that, patient’s condition could not be monitored immediately after the surgery. It resulted into non-conducting of the second immediate surgery of the head as the situation warranted.  The plea thus raised by OP No. 1does not help him.

23)            Next plea raised by OP 1 hospital is that in the year 2001, the facility of CT Scan was not common. As opined by experts, immediate NCCT of head of the patient was required for an appropriate management.  In the absence of the facility of CT Scan /NCCT, OP 1 hospital should not have entertained the patient and conducted surgery.  Now OP 1 hospital wants to shift the burden on Dr. BrahmPrakash its consultant stating that it was he who conducted the surgery. Be that as it may, OP 1 hospital cannot be allowed to wriggle out of its responsibility of entertaining only those patients for whom he had requisite equipments.  Counsel for OP 1 argued that the complainant did not make any such allegation.  Complainant is a layman.  Experts’ opinion is furnished by a team of specialists and experienced doctors working in the field of neurosurgery. Experts have categorically held that at the first sign of deterioration, patient should have been put to NCCT.  In present case, the surgery was conducted on 20.11.2001 and signs of deterioration started appearing on 21.11.2001 at 10.10 a.m. when the patient started feeling drowsy. OP 1 hospital slept over the deteriorating condition of the patient uptil 23.11.2001 when the patient was taken to Delhi MR and CT Scan Centre atSafdarjang Enclave New Delhi.

24)            RML Hospital New Delhi at another place while giving information under RTI Act in response to an RTI application, also opined that neurosurgical centre should have all the required facilities including CT scan for diagnosis as well as follow up.  Counsel for OP No. 1 argued that opinion given by the experts on the information given under RTI Act pertains to the period much after the surgery.  Argument does not hold water for the reason that even in the year 2001, surgery should have not been conducted in the absence of CT Scan facility. Nothing compelled the OP 1 hospital to conduct surgery when it did not have the essential equipments.

25)            Apex court in the case of Jacob Mathew v.State of Punjab, 2005 (3) CPJ 9 (II) (SC) laid down the principles of law relating to the concept of negligence. The same are given below:

“The Principles of law stated:

The Apex Court held,

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’ and resulting damage.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as  a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precaution which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment were not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.”

No material has been placed on record by any of the OPs challenging the experts opinion.  None of the OPs filed objections to the opinion of the experts or the information under RTI Act.

26)            In the case of Monilek Hospital and Research Centre v. Padamchand Jain, 2013 (1)CPJ 136 (Raj), the Hon’ble State Commission held doctor and hospital guilty of negligence for undue delay of 15 hours in diagnosing blood clot in the artery to transplanted kidney.  The hospital did not have the MRI facility, in the said case. In the case of D.K.Sharma& Othersv. PG Institute of Medical Education and Research & Others 2002 CTJ833 (Chandigarh), the operation having been commenced had to be abandoned by the doctor as drill machine was not kept ready. Drill machine borrowed from other department had failed to work.  Hospital was held liable for negligence. In the case of MRajavadivelinv. Janamma Hospital, 2013(2)CPJ622 (NC), Hon’ble National Commission held the hospital guilty of negligence when there was no ventilator facility.  It was held that the doctor should not have conducted a major surgery without ensuring availability of life saving facility.

27)            It is admitted in the present case that the OP No. 1 hospital did not possess the facility of CT Scan/ NCCT.  Clearly the hospital should not have conducted the surgery on the head of the deceased Trilok Singh.  OP 1 hospital is thus liable for negligence and deficiency in service.

28)            At the cost of repetition, it may be mentioned here that Doctor BrahmPrakash died during the pendency of the complaint.  The complaint against Doctor AshishSrivastava is barred by limitation as discussed above. No specific negligence or deficiency in service is imputed to Dr. AshishSrivastava by the complainant.

29)            Deceased Trilok Singh died at the age of 37.  Keeping in view the parameters of award of compensation as laid down by the Apex Court in the case ofBalram Prasad (Dr.) v. Dr.KunalSaha, IV (2013) CPJ 1 (SC),I am of the considered opinion that the compensation of Rs. 24,56,000/- as claimed by the complainant is not on the higher side.  For these reasons OP 1 hospital (Lion Hospital & Research Centre) is directed to pay an amount of Rs. 24,56,000/- alongwith interest at the rate of 8% p.a. from the date of filing of the present complaint i.e. w.e.f. 24.11.2003 till the date of its realization to the widow of the deceased Smt. ManjuSaini, Master MukulSaini son of the deceased and MsVipulSaini daughter in equal shares.  Ld. Counsels for the complainant and the OPs have consented to the apportionment of the aforesaid amount of Rs. 24,56,000/- amongst the family members of the deceased Trilok Singh accordingly. Aforesaid amount shall be paid by OP 1 hospital within a period of 60 days from today failing which the amount shall carry interest @ 18% per annum.  The complaint is accordingly disposed of.

30)            Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to record room.

                                                        (NPKAUSHIK)                                                              MEMBER(JUDICIAL)

 

 

 

 

 

 

 

 

 

 

(Fatima)