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Tuesday, August 20, 2013

Patient admitted as Dengue later said as“aplastic anaemia” which is called blood cancer = patient died within 24 Hours - No Medical treatment Case record produced - Medical negligence proved - No expert need be examined = “It is admitted case of the opposite parties that as per the above tests, the disease suffered by the patient is known as ‘Aplastic Anemia’ which is called Blood Cancer in common language and not Dengue. It is not the case of the opposite parties that the patient was given the treatment of cancer or that the complainant was advised to shift his minor son (patient) to some other hospital for better treatment of cancer where the treatment of cancer was available. The patient was brought to the hospital of the opposite parties on 14.10.1998 and died on 15.10.1998. Thus, the opposite parties have rightly been held negligent and deficient in service while treating the minor son of the complainant. Though the opposite parties have taken the plea that they had given proper treatment to the patient, but before the District Forum the opposite parties failed to produce the treatment chart of the patient which proves the act and conduct of the opposite parties with respect to the treatment given to the patient. It is the case where the complainant has lost his hope due to death of his son aged about 10 years.” = expert opinion is not necessary in all cases where the negligence and deficiency in service of the treating doctor is established from the facts and circumstances of the case. Treating doctor can be involved in a criminal offence of medical negligence when there is some evidence of higher degree but the civil liability of the treating doctor for the wrong treatment given to a patient can be fastened on the basis of the facts and circumstances of the case.= Following observations of the Apex Court in the case of V. Kishan Rao (Supra) may be reproduced to clarify this aspect further:- “50. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.” 10. In view of the above enumerated position in law, the least that can be expected of the petitioner / opposite parties was to produce the treatment record of the deceased child so as to enable the foras below to conclude if the petitioners had taken a reasonable care of the deceased patient or they were negligent in their duty to treat the child. From the observations of the State Commission reproduced above, it is evident that the petitioners failed to produce the treatment chart of the deceased patient in their evidence. In the absence of the treatment record, which could have thrown light on the issue of medical negligence, we are of the view that the foras below have rightly concluded that the petitioners were negligent in the treatment of the deceased child. Thus, we do not find any illegality or infirmity in the impugned order which may call for interference by this Commission in exercise of the revisional jurisdiction. The revision petition is accordingly dismissed in liminie with no order as to costs.

published in http://164.100.72.12/ncdrcrep/judgement/00130816112150467RP46842012.htm
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

REVISION PETITION NO.4684 OF 2012
(From the order dated 12.09.2012 in  First Appeal No.238/2005 of the
Haryana State Consumer Disputes Redressal Commission, Panchkula)
                                                                      WITH         
IA/1/2012
IA/2/2012
(C/COPY & STAY)

1. Sun Flag Hospital Research Centre                                        ..…. Petitioners
Sector – 16A
Faridabad
Through its Authorise Representative    

2. Dr. Prem Kumar
Consultant/Medical Officer
Sun Flag Hospital Research Centre
Sector 16A, Faridabad
                                                               
                                             Versus

Shri Raghubir Singh Poswal                                                        ..... Respondent
S/o Sh. Pehlad Singh
R/o village Fulwarian
Tehsil Palwal
District Faridabad

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioners   :  Shri Rajesh Chhabra, Advocate

Pronounced on :  16th August, 2013

ORDER

PER SURESH CHANDRA, MEMBER
This revision petition is directed against the order dated 12.09.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘State Commission’ for short) in First Appeal No.238 of 2005 by which the State Commission dismissed the first appeal of the petitioners filed against the order dated 05.07.2004 passed by the District Consumer Forum, Faridabad in CC No.399. Vide its order, the District Forum allowed the complaint of the respondent and granted the following relief:-
“…..In the circumstances, the complaint of the complainant succeeds and to satisfy the grouse of the complainant, following order is passed
1.      The respondents are ordered to pay Rs.Two Lakhs along with interest @ 12% p.a. w.e.f. the filing of the present complaint till its realization.
2.      The respondents are also ordered to pay Rs.5000/- on account of mental agony and Rs.500/- as litigation expenses.
The respondents are ordered to comply with the order of the Forum within 30 days after receiving the copy of the present order……….”
2.         The brief facts of this case which are relevant for its decision are that Vikas aged about 10 years, son of the respondent / complainant, was suffering from fever and was brought to Dr.Rahul Verma at the Verma Children Hospital, PalwalDr. Verma noticed symptoms of Dengue fever and hence he referred the patient to the OPs/petitioners. Vikas was admitted in the hospital of the petitioners on 14.10.1998 where he was kept in the ICU and tests were carried out on him. However, Vikas was declared dead at 9.40 a.m. on 15.10.1998 due to cardiac arrest. Alleging negligence during course of treatment and carrying of tests as well as blood transfusion, the complainant/respondent filed the consumer complaint before the District Forum in which allegations of wrong diagnosis leading to incorrect line of treatment were also made.
On the other hand, according to the petitioners/OPs, the patient was brought to their hospital on 14.10.1998 at 5.40 p.m. and after his admission, he was examined by doctor on duty who indicated possibility of Dengue but when the patient was checked by Dr. Prem Kumar, OP No.2, it was noticed that the patientwas  having acute breathlessness and air hunger and hence tests were carried out in the hospital lab. The blood test reports indicated the following results:-
Found in the patient as per tests
Normal requirement of this age group
Normal values
Blood (HB) 2.5. grams
12 to 14 grams
White blood 3600
4,000 – 11,000
Platelets 40,000
1,50,000 to 4,00,000 lac
Nutro Pahils 26%
45-75

3.         According to the petitioners, the tests results ruled out the possibility of Dengue fever. The reports pointed towards “aplastic anaemia” which is called blood cancer in common language and not Dengue as claimed by the complainant/respondent. It was submitted by the OPs in their written statement that the patient could not be improved in spite of their best efforts and unfortunately died on 15.10.1998.
4.         Both the parties adduced their evidence before the District Forum by way of affidavits. After hearing the parties and considering the evidence before it, the District Forum allowed the complaint in terms of its order reproduced above. The State Commission also upheld the same and dismissed the appeal filed by the petitioners both on grounds of delay as well as on meritsvide its impugned order.
5.         We have heard learned Shri Rajesh Chhabra, Advocate for the petitioners. Learned counsel has submitted that the impugned orders of the Fora below are perverse and against the well established principles of law and hence not sustainable.  He said that the State Commission has not applied its judicious mind while passing the impugned order and contended that as the first appellate court it has failed to appreciate the fact that the treatment given to the patient was on the basis of the investigation reports.  He pointed out that neither the complainant/respondent had led any documentary evidence which could be suggestive of the fact that the patient was suffering from dengue nor any test/investigation of dengue was conducted on the patient or any such report was produced before the attending doctor i.e. petitioner no. 2.  
Since the first investigation report of the deceased patient was suggesting acute blood anaemia/blood cancer, the attending doctor had no other alternative but to start the treatment on the basis of this report. 
 Learned counsel argued that both the Fora below did not appreciate the fact that no specific negligence was proved by the respondent in the trial court by leading evidence of a medical expert.  On the other hand, he submitted that the reply filed by the petitioners before the District Forum clearly indicates that the deceased patient was rightly treated by the petitioners by giving immediate blood transfusion to improve the H.B. level and other symptoms.  Learned counsel, therefore, pleaded that in these circumstances, no liability could be fastened on the petitioners for the alleged negligence for which there was no proof before the Fora below and hence the revision petition should be allowed and the impugned order be set aside.
7.         We have considered the submissions made by learned counsel for the petitioners and perused the record.  We may note that this revision petition has been filed against the concurrent orders passed of the Fora below holding the petitioners guilty of negligence.  The main contention of learned counsel for the petitioners is that treatment of the deceased patient given by the petitioners was in accordance with the requirement of the patient based on the initial investigation reports and there is no expert evidence to establish any negligence on the part of the petitioners in this regard.  
No doubt that there is no expert opinion produced by the respondent/complainant before the Fora below to establish the negligence on the part of the petitioners.  However, it is not in dispute that the patient was admitted in the petitioners hospital on 14.10.1998 and died on the next day i.e. on 15.10.1998.  Such a sudden death of the patient within 24 hours of his admission into the hospital of the petitioners by itself raises suspicion about the line of treatment adopted by the petitioners while treating the deceased patient and would necessarily call for submission of further details in respect of the treatment and reasons for the sudden death of the patient in spite of the treatment.  
This also raises a question, if the condition of the patient was really so serious as was likely to result into his death so soon, was the hospital of the petitioners well-equipped to deal with such an emergency?  If not, the question would arise as to whether the petitioners briefed the respondent/complainant about the condition of the patient and to refer him to a better equipped hospital?  It is here that we find that the fora below came to the conclusion about negligence on the part of the petitioners.  
In this context, the State Commission while upholding the order of the District Forum has observed as under:-
“It is admitted case of the opposite parties that as per the above tests, the disease suffered by the patient is known as ‘Aplastic Anemia’ which is called Blood Cancer in common language and not Dengue.  It is not the case of the opposite parties that the patient was given the treatment of cancer or that the complainant was advised to shift his minor son (patient) to some other hospital for better treatment of cancer where the treatment of cancer was available.  The patient was brought to the hospital of the opposite parties on 14.10.1998 and died on 15.10.1998.  Thus, the opposite parties have rightly been held negligent and deficient in service while treating the minor son of the complainant.  Though the opposite parties have taken the plea that they had given proper treatment to the patient, but before the District Forum the opposite parties failed to produce the treatment chart of the patient which proves the act and conduct of the opposite parties with respect to the treatment given to the patient.  It is the case where the complainant has lost his hope due to death of his son aged about 10 years.”  
8.         In view of the facts and circumstances of this case, the State Commission referring to the ratio laid down by the Apex Court in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital And Another (2010) CTJ 868/2010 5 Supreme Court Cases 513 has rightly concluded that expert opinion is not necessary in all cases where the negligence and deficiency in service of the treating doctor is established from the facts and circumstances of the case.  Treating doctor can be  involved in a criminal offence of medical negligence when there is some evidence of higher degree but the civil liability of the treating doctor for the wrong treatment given to a patient can be fastened on the basis of the facts and circumstances of the case.
9.         Following observations of the Apex Court in the case of V. Kishan Rao (Supra) may be reproduced to clarify this aspect further:-
“50. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself.  In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.” 
10.       In view of the above enumerated position in law, the least that can be expected of the petitioner / opposite parties was to produce the treatment record of the deceased child so as to enable the foras below to conclude if the petitioners had taken a reasonable care of the deceased patient or they were negligent in their duty to treat the child.  From the observations of the State Commission reproduced above, it is evident that the petitioners failed to produce the treatment chart of the deceased patient in their evidence.  In the absence of the treatment record, which could have thrown light on the issue of medical negligence, we are of the view that the foras below have rightly concluded that the petitioners were negligent in the treatment of the deceased child.  Thus, we do not find any illegality or infirmity in the impugned order which may call for interference by this Commission in exercise of the revisional jurisdiction.  The revision petition is accordingly dismissed in liminie with no order as to costs. 
……………Sd/-……..………..
     (AJIT BHARIHOKE, J.)
      PRESIDING MEMBER

                                                            
  …………Sd/-…….……………
(SURESH CHANDRA)
MEMBER
SS/

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