AI Structured Summary
Not yet generated for this judgment
Judgment
A. P. Sahi, President Member
This Complaint has been filed by the parents of a 9 year old child, Ms. Ananya Mohapatra who lost her life on account of being affected with Dengue fever. The Claim Petition alleges negligence on the part of the Opposite Party No.4 Shanti Gopal Hospital as well as gross medical negligence on the part of the Opposite Party No.1, Dr. Anuradha Mittal under whose treatment Ms. Ananya was admitted at the Opposite party No.4 Hospital.
The background of the case is that on 02.10.2013 Ms. Ananya is stated to have been suffering from mild fever and taken by her parents for treatment to Dr. Bharti Jha who advised them for getting a urine test conducted for a suspected infection.
On 03.10.2013 the Complainants took their daughter to the Opposite Party No.1 who prescribed some medicines relating to cough and cold and other symptoms of fever looking to the body temperature of the patient which was on the higher side. A copy of the prescription indicating the medicines to be administered is Annexure P-3.
It appears that the patient did not feel relieved. The Complainants allege that they took her again to the Opposite Party No.1 on 04.10.2013 that has been vehemently denied by the said Opposite Party and shall be dealt with hereinafter in the judgment.
The fact remains that the patient was vomiting and according to the Complainants at around 05.30 p.m. on 05.10.2013 she was taken to the Emergency at Opposite Party No.4 Hospital where the Opposite Party No.1 is working as a Pediatrician.
The emergency doctor found that the patient had about 100°C fever and her oxygen level was 99%. It is alleged that Opposite Party No.1 was consulted in the emergency who called upon the Complainants to rush Ms. Ananya to the Emergency ward for administering drips as her lips were turning yellowish.
The admission of Ms. Ananya took place in the hospital on 05.10.2013 around 08.15 p.m. She appears to have been visited by the doctor at around 09.30 p.m. as is evident from the doctors orders sheet at page No. 163 of the Reply filed on behalf of the Opposite Party No.2 and 4. She was advised and administered IV Fluids. An injection was given and Ultrasonography was done with a further advice of certain pathological and other tests including that of Dengue Serology and Dengue Antigen. The examination by the general physician on admission indicates provisional diagnosis of some suspected infection or dengue fever or malaria and the plan of management suggested was a conservative treatment.
A care plan was also prepared which indicated the symptoms and management of the patient with IV Fluids and antibiotics as well as investigations. The care plan also anticipated complications with prognosis leading to Dengue Shock Syndrome (DSS) and possibly Thrombocytopenia (low platelet count).
From the progress and continuation sheet at Page No. 173 of the Reply of the Opposite Party No.2 and 4 it appears that the patient was examined by Opposite Party No.1 at 10.00p.m. She noted the symptoms with a mild right side pleural effusion as per the Ultrasonography Report. The patient was however oriented and conscious with a Blood Pressure of 120/80, pulse rate of 118 per minute with no distress signs decipherable. At about midnight (5/6th October) the patient complained of pain and nausea and at around 12.11 a.m. blood samples were taken for platelet counts and also for tests suspecting dengue.
The report of the pathological tests of the samples that were taken at midnight, according to the Opposite Parties, was made available immediately where the platelet count, according to the generated physical report, states 40,000/mm whereas the endorsement made in the progress notes at midnight is 32,000/mm. The Opposite Party No.1 was consulted as per the endorsement thereon who advised to get the platelet counts tested again at 06.00 am. and also directed for the measurement of abdominal girth of the patient to be measured 4 hourly. Digene syrup was also advised.
It is to be noted that the infusion of IV Fluids had commenced in the emergency itself immediately on arrival which according to the Opposite Party continued after admission in the ward also. The medication sheet which is the nurses record indicates IV Fluids being administered every 3 hourly which sheet is at Page 183 of the Reply filed on behalf of the Opposite Party No.2 and 4.
Blood samples were again taken in the morning of 06.10.2013 at about 06.50 a.m. and the platelet counts as reported were 38,000/mm which is annexed P-4 to the Complaint.
The medication chart of 06.10.2013 also indicates administration of IV Fluids which document is at Page 181 of the Complaint.
However in the morning at about 08.30 am while she was shifted to the X-Ray room, she appears to have receded in a critical state of shock and then she was immediately shifted to the ICU. The progress and continuation sheet of the ICU at 08.40 a.m. indicates that the IV Fluids were continued in the ICU as well but the pulse rates were noted feeble and the Blood Pressure was 90/60. By 09.15 a.m. the patient went into shock and dopamine was started. Her parameters lowered at about 09.40 a.m. and at about 10.00a.m. the patient was shifted to Max Hospital where she expired the same day at about 02.00 p.m.
It is broadly in this background that the Complaint alleges gross negligence and deficiency combined as against the Opposite Parties, complaining that Opposite Party No.1 who was treating their daughter from the 03.10.2013 did not take appropriate care nor did she follow the required protocol that was lacking in her diagnosis and also the treatment for Dengue. Even after the admission of the child in the hospital, no care was taken to treat her for Dengue and none of the protocols were followed. Learned Counsel has relied on certain medical literature to supplement his submissions and contended that the negligence is gross,and there is no explanation forthcoming from the Opposite Parties as to why they did not follow the protocols for treatment of dengue as per the standard norms.
The second ground of attack by the learned Counsel for the Complainant is that the Hospital did not have Pediatric ICU facilities and that they did not even advise the parents appropriately to take her to some other hospital for appropriate treatment.
Learned Counsel for the Complainant urged that the entire documents that were needed were not supplied by the Hospital and that the Complainant had to contest the matter under Right to Information Act to receive the documents for the purpose of filing this Complaint.
It is also urged that the Complainant had also lodged a Complaint with the Chief Medical Officer who got an enquiry conducted where the Opposite Party No.1 appeared and her statement was also recorded. According to the learned Counsel a copy of the said report was provided to the Complainant vide letter dated 05.12.2015 and the said report also in its conclusion clearly demonstrates that the hospital, Opposite Party No.4 was not having proper facilities and the patient could have been shifted earlier to a better hospital. With the aid of this document it is urged that the report also supports this stand of the Complaint that the hospital was deficient in its facilities.
It is also the allegation of the learned Counsel that as a matter of fact the life of the patient was already lost and any attempt alleged to be shown by the Opposite Party No.1 to revive the patient by taking her to the ICU was practically treating a dead body.
Countering the said allegations, learned Counsel for the Opposite Party No.1 and the Hospital dispute the allegations and also the facts as stated in the complaint. It is urged by the learned Counsel for the Opposite Party No.1 that the fact that the patient was examined on 04.10.2013 is patently incorrect and is against the weight of evidence on record. It is then submitted that the patient was immediately attended to by transfusion of IV fluids when her platelet count was reported to be during this period of treatment between 32 thousand and 40 thousand and this platelet count was detected on the pathological tests that were carried out soon after her admission. The counts did not recede to any alarming level and was 38,000/mm at 06:30 am on 06.10.2013.
It is submitted that no delay occurred and the child was attended to with full precaution. It is also submitted that all facilities were available in the hospital and several patients who were diagnosed for Dengue including children were successfully treated in the hospital. It is urged that the complaint filed before the CMO did not anywhere indict either the Opposite Party No.1 or the hospital of any gross negligence. The report indicating that she could have been sent to a better hospital is a suggestion or a recommendation without any finding of negligence at all. It is also denied that the patient had been admitted against the wishes of the parents and the Complainants. The fact that the treatment was immediately started with IV fluids is admitted to the Opposite Party in their written statement itself and other allegations made against the Opposite Party No.1 about her personal gestures is absolutely false inasmuch as there is no occasion to get angry or show any anguish. It is also submitted that the allegation that no blood tests were required to be done on the advice of the Opposite Party No.1 is against record in as much as all protocols and tests were carried out and were made available. On the ICU facilities, it is submitted that the hospital is a hundred bedded hospital with all facilities.
Learned Counsel for the Hospital urged that the contention about no separate Pediatric ICU being available, the full-fledged ICU facility for adults was available and there is no distinction proved to indicate that the said facilities were not adequate for a 9 year old child. It is urged by the learned Counsel for the Opposite Party No.1 that the report of the Committee set up by the Chief Medical Officer is not evidence and even otherwise the contents thereof do not in any way indicate any evidence of gross negligence. Reliance has been placed on the judgment of the Apex Court in the case of Dr. HarishKumar KhuranaVs. Joginder Singh &Ors. reported in (2021) 10 SCC 291 paragraph 20.
An objection has been raised by the learned Counsel for the Opposite Parties urging vehemently that the complaint is also barred by limitation as it has been filed beyond the limitation prescribed under Section 24(2)A of the Consumer Protection Act,1986 and hence the complaint should be rejected as being time barred.
It has also been urged by the learned Counsel for the Opposite Party No.1 that there is no deficiency either in diagnosis, treatment or management of the patient nor any evidence has been led either from the medication or from the nursing records or any record of the hospital to demonstrate that there was an incorrect administration of medicine and lack of medical facilities. It is submitted that the allegations made are neither borne out from the record nor do the records indicate or make out any case of deficiency or negligence on the part of the Opposite Parties.
Responding to the written arguments on behalf of the Complainant, it is urged that the written arguments and even the oral arguments travel beyond the scope of negligence and the contentions, particularly with regard to the line of treatment which is against the pleadings on record.
Having heard learned Counsel for the Parties and having perused the records, the first thing that deserves to be sorted out at the outset is with regard to the objection taken by the Opposite Party on limitation. The patient admittedly died on 06.10.2013. The Complainants dispatched an e-mail on 09.11.2013 requesting for the documents and hospital papers but no heed was paid and consequently, the Complainants had to report the matter to the Chief Medical Officer, Ghaziabad, who got an enquiry conducted, yet no document was supplied to the Complainants either by the hospital or by the Chief Medical Officer. This led to the Complainants being totally handicapped in attempting to file a complaint as they had no papers with them. The Complainants had to resort to the Right to Information Act before the State Information Commissioner Lucknow who issued notices to the Chief Medical Officer, Ghaziabad, for hearing the matter on 20.01.2016. It is only thereafter that the records and the report of the Chief Medical Officer came to be filed before the State Commission in 2016. The present complaint seems to have been presented before this Commission in April 2016.
In this background it can be safely concluded that the Complainant had within two years proceeded to seek information with regard to the documents that were necessary for the purpose of filing a claim. The time taken with regard to obtaining of the documents after the filing of an application under the RTI Act therefore seems to have been fairly explained and as indicated above, the documents were made available only after notices were issued in January 2016. The Complainants do not seem to have lost any time thereafter and have filed this complaint in April 2016. Thus, the preliminary objection taken with regard to limitation by the Opposite Party does not seem to curtail the rights of the Complainants to present this complaint which in my opinion is well within time.
The second aspect which needs to be clarified at the outset is about the allegation made in the complaint in paragraph 6 alleging that the Complainants had taken their daughter to the chambers of the Opposite Party No.1 for examination on 04.10.2013 where she is alleged to have stated that there was no need to carry out any blood test and dengue will be detected only four to five days after the fever. This fact has been categorically denied by the Opposite Party No.1 and reliance has been placed on the patient history docket maintained by the hospital which is extracted hereinunder:
Date Service Type/No. Services Availed
Doctors Consultation
03/10/2013
Dr. Anuradha Mittal
Detail of OPD Services
Date-05/10/2013
Encounter No.
13000132994
Doctors Consultation
05/10/2013
Dr. Anuradha Mittal
Detail of OPD Services
Date-05/10/2013
Encounter No.
13000133059
Miscellaneous Charges
05/10/2013
CASUALTY CHARGES-
150 PER HR
Detail of OPD Services
Date-05/10/2013
Encounter No.
13000133102
Radiology
05/10/2013
70104000
This document which is on record has not been denied which categorically indicates that the patient was first attended to by the Opposite Party No.1 in the OPD services on 03.10.2013 and then on 05.10.2013. It is therefore clearly evident from the aforesaid document that there is no record of any consultation with the Opposite Party No.1 at the hospital on 04.10.2013 except the allegation contained in paragraph 6 of the complaint which has been vehemently denied in the written submission and the evidence. There is no proof of any prescription or any document regarding the visit of the patient to the doctors chambers/hospital on 04.10.2013.
Learned Counsel has also, at the outset, invited the attention of the Bench to the professional qualifications of the Opposite Party No.1 indicating that she is a duly qualified MD in Pediatrics having experience of tertiary level Pediatric intensive care and casualty management experience as well. The submission is that the allegations of any faulty diagnosis or shortcoming in the services of the Opposite Party No.1 is somewhat an unsuccessful attempt to malign her image. The said contention on behalf of the Opposite Parties therefore appears to be correct that the Opposite Party No.1 was fully qualified and capable of handling the patient.
The next issue which needs to be indicated is about the capacity of the hospital to handle such types of patient. On this count, it was vehemently urged by the learned Counsel for the Complainant that the report of the Chief Medical Officer upon enquiry establishes that the hospital was ill-equipped and it is for this reason that the report suggests that the Opposite Parties did not inform nor did they suggest that she should be immediately shifted to a better tertiary care hospital which happened immediately after her condition worsened and she was taken to Max Hospital. The contention is that had this indication been given at the outset, the life of the child could have been saved by taking her to Max Hospital.
In the response filed by the Opposite Party No.2 & 4 on behalf of the hospital, it has been categorically stated that the hospital is equipped with all facilities for testing and calibrating as it has a laboratory which is accredited by the National Accreditation Board for Testing and Calibration Laboratories (NABL). The certificate has been filed on record. The certification of registration has also been brought on record that has been renewed time and again. With regard to the depiction of facilities indicated in the advertisement of the hospital, learned Counsel has invited the attention of the Bench to the photographs as also the list of medical equipment that are available in the critical care unit of the hospital indicating full ICU facilities. The said list has not been disputed by any cogent evidence on behalf of the Complainants and the same is reproduced hereinunder:
MEDICAL EQUIPMENT (CRITICAL CATE UNIT)
EQUIPMENT
CATEGORY
LOCATION
COMPANY_NAME
MODEL_NO
GLUCOMETER
BIOMEDICAL
MICU
ARKRAY
GLUCOCARD
SIGMA
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
DEFIBLLETOR
BIOMEDICAL
MICU
GE
CARDIOSERV
ECG MACHINE
BIOMEDICAL
MICU
GE
MAC 1200ST
ECG MACHINE
BIOMEDICAL
MICU
GE
MAC2000
MULTIPERA
MONITOR
BIOMEDICAL
MICU
GE
DASH-3000
MULTIPERA
MONITOR
BIOMEDICAL
MICU
GE
DASH-3000
MULTIPERA
MONITOR
BIOMEDICAL
MICU
GE
DASH-3000
MULTIPERA
MONITOR
BIOMEDICAL
MICU
GE
DASH-3000
MULTIPERA
MONITOR
BIOMEDICAL
MICU
GE
DASH-3000
MULTIPERA
MONITOR
BIOMEDICAL
MICU
GE
DASH-3000
MULTIPERA
MONITOR
BIOMEDICAL
MICU
GE
DASH-3000
MULTIPERA
MONITOR
BIOMEDICAL
MICU
GE
DASH-3000
VENTILATOR
BIOMEDICAL
MICU
GE
Engstrom
VENTILATOR
BIOMEDICAL
MICU
GE
Engstrom
VENTILATOR
BIOMEDICAL
MICU
GE
Engstrom
VENTILATOR
BIOMEDICAL
MICU
GE
Engstrom
BLOOD GAS
ANALYZER
BIOMEDICAL
MICU
SOWER P. LTD.
OPTI 3
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
INFUSION PUMP
BIOMEDICAL
MICU
F-KABI
INJECTO MAT
The Opposite Parties have also relied on the entire notified cases as treated by them for dengue including adults as well as children. The said chart has been filed as Annexure R-3 to the reply. To name one of the patients, Baby Gunika Gupta, is also on record to indicate that she was treated by the Opposite Party No.1 during the said critical period and discharged successfully. There are a lot of other records pertaining to the patients who were treated with Dengue that have been filed. Thus, on a perusal thereof it cannot be said that the hospital was ill-equipped.
Learned Counsel for the Complainant on this Aspect has repeatedly urged that this was not the requisite ICU facility for children as a pediatric ICU unit has to be equipped otherwise. Nothing was demonstrated by the learned Counsel for the Complainant to establish that the facilities of ICU provided in the hospital did not in any way conform to the facilities that may have been required for treating the patient Ananya and taking critical care of her. The distinction attempted by the learned Counsel therefore could not lead to any indication of any deficiency in the ICU services of the hospital.
Commencing with argument regarding the line of treatment that was adopted, it is evident that the patient was admitted in the hospital on 05.10.2013 at night, and at 09:30 PM the doctors ordersheet records that she was already on IV fluids. This fact, however, was sought to be disputed by the learned Counsel for the Complainant by urging that it is only on the next day that IV fluids were administered/started at 08:40 AM on 06.10.2013. For this the learned Counsel for the Complainant pointed out to the hospital sheet which is at page 209 of the reply of the Opposite Party No.2&4. Upon a careful perusal it does appear at first flush that IV fluid was started at 08:40 AM and therefore this argument of the learned Counsel was examined with the aid of the entries made at 09:30 PM on 05/10/2013 in the doctors orders at page 163. The fact that IV fluids were being administered has been pointed out by the learned Counsel for the Opposite Party that is admitted by the Complainant in paragraph 8 of the complaint. The aforesaid contention of the learned Counsel for the Opposite Party No.1 is correct inasmuch as the first sentence of paragraph 8 of the Complaint reads as under:
The complainants took their daughter to emergency ward where drip was started and US test was done.
It is well known that admission is the best piece of evidence. This Admission in the complaint clearly matches with the endorsement made on the doctors ordersheet of administration of IV fluid and Injection Ondem recorded at page 163 referred to above. Not only this, the said sheet also records the Ultrasonography conducted which is also admitted in the above quoted sentence. Apart from this, the blood test report was also carried out on the instructions of the doctor at that very moment and the blood test report itself is admitted in paragraph 8. The administration of IV fluid that was pointed out by the learned Counsel for the Complainant on 06.10.2013 at 08:30 AM was continued as the said document at page 209 referred to above also endorses the receipt of the patient in the intensive care unit. The aforesaid document therefore does indicate that IVF was started but in fact it was the continuance of the IV fluid which has been recorded separately in the ICU. The submission therefore that IV fluid was started for the first time in the ICU is not correct as it had already commenced on the patient being admitted to the hospital on 05.10.2013 as admitted by the Complainant and also recorded in the doctors ordersheet as well as other hospital sheets. This fact is also recorded in the discharge summary of 06.10.2013 when the child was admittedly shifted to Max Hospital. It is relevant to reproduce the said discharge summary as it depicts the status of the patient and is extracted hereinunder:
Discharge Summary
Name : BABY ANANYA MOHAPATRA
Age/Sex : 9 Y/Female
ID No. : 2012004827
IP No. : 2013004813
Date of Admission : 05/10/2013
Date of Discharge : 06/10/2013
Admitting Doctor : Dr. Anuradha Mittal
Discharge Type : Refe
FINAL DIAGNOSIS
Dengue Shock Syndrome
CHIEF COMPLAINTS
C/O high grade fever for 4 days with vomiting, loose motion for few hours.
HISTORY OF PRESENT ILLNESS
9 yrs. old female presented with C/O high grade fever for 4 days associated with vomiting, loose motion for few hours hence admitted for further treatment and management.
COURSE IN THE HOSPITAL
Started IVF, antibiotics, Platelet count 38000. USG showed ascites and pleural effusion. The child suddenly started decompensating (3rd spacing) and hence dopamine was started, along with fluid for bolus resuscitation. Being shifted to tertiary care center for need full.
GIVEN TREATMENT
IVF
Inj. Monocef
Inj. 25% Dex
Inj. Dopamine
Learned Counsel for the Complainant urged that the medication which was given was simple Crocin, Digene and some preliminary medicines without any steps to indicate that the said medicines or line of treatment was for Dengue. The contention is that the medicines were only with regard to some suspected viral fever and antibiotics were accordingly administered.
This contention is absolutely incorrect inasmuch as Dengue Shock Syndrome (DSS) was anticipated as is evident from the care plan statement that was received by the Complainants and is at page 164 of the reply of Opposite Party No.2&4. Not only that Thrombocytopenia was also anticipated and keeping in view the standard protocols for Dengue fever, IV fluids were started on 05.10.2013 immediately after admission and continued even the next day in the ICU as indicated above. The pathological reports received at mid night are another testimony of the care taken by the Opposite Party No.1 and the hospital. It is admitted to the learned Counsel for the Opposite Party No.1 that the Platelet Count Report had been received at midnight itself which is recorded at page 174 of the progress notes filed along with the reply of Opposite Party No.2&4. It is also recorded therein that the Opposite Party No.1 was immediately consulted and she advised to repeat the Platelet Count Reports again at 06.00 AM with a further direction to conduct 4 hourly measurement of the abdominal girth. This was taken as a precaution to take care of any suspected internal, intestinal or other hemorrhages. It was rightly explained by the learned Counsel for the Opposite Party No.1 that this instruction was necessary to locate any hemorrhages or bleeding that might occur by measuring the abdominal girth as there would be swelling in the abdominal region. It is seen from the note sheet that it was 68cm at midnight and was only 70cm at 07:30 AM in the morning, but the patient was not under any distress and was oriented and conscious. The IV fluids were continued and then the learned Counsel for the Opposite Party pointed out that the Platelet Counts had not dropped any further to any alarming level for the purpose of infusing either blood or platelets.
For this the learned Counsel for the Opposite Party NO.1 took the Bench to the literature filed by the learned Counsel for the Complainant along with his written arguments and synopsis filed on 31.08.2018. The clinical diagnosis of Dengue Shock Syndrome was explained by stating that firstly it should be a probable or confirmed case of dengue coupled with rashness or bleeding and Thrombocytopenia with less than hundred thousand cells per cu mm coupled with evidence of plasma linkage due to increased vascular permeability. The illness duration is 2 to 7 days. This protocol was observed and since there was no bleeding or any rashness or other added symptoms as mentioned above, there was no reason on 05.10.2013 to immediately come to the conclusion that the fever had developed further into a shock syndrome.
It was further pointed out that the clinical management as contained in chapter 5 of the guidelines for clinical management of Dengue fever issued by the Government of India and filed by the Complainant himself indicates the recommendations for treatment stepwise and fluid therapy was started accordingly and all requisite pathological tests were done. The intravenous fluids are needed 24-48 hours to be monitored as per any increase or decrease of the leakage according to the grouping done under the said protocol the emergency protocol is provided in 2.3.2.3 group C which is extracted hereinunder:
2.3.2.3 Group C - patients who require emergency treatment and urgent referral when they have severe dengue.
Patients require emergency treatment and urgent referral when they are in the critical phase of disease, i.e. when they have:
o severe plasma leakage leading to dengue shock and/or fluid accumulation with respiratory distress;
o severe haemorrhages;
o severe organ impairment (hepatic damage, renal impairment, cardiomyopathy. encephalopathy or encephalitis).
All patients with severe dengue should be admitted to a hospital with access to Intensive care facilities and blood transfusion. Judicious intravenous fluid resuscitation is the essential and usually sole intervention required. The crystalloid solution should be isotonic and the volume just sufficient to maintain an effective circulation during the period of plasma leakage. Plasma losses should be replaced immediately and rapidly with isotonic crystalloid solution or, in the case of hypotensive shock, colloid solutions (Textbox M), If possible, obtain haematocrit levels before and after fluid resuscitation
There should be continued replacement of further plasma losses to maintain effective circulation for 24-48 hours. For overweight or obese patients, the ideal body weight should be used for calculating fluid infusion rates (textboxes J and K). A group and cross- match should be done for all shock patients. Blood transfusion should be given only in cases with suspected/severe bleeding.
Fluid resuscitation must be clearly separated from simple fluid administration. This is a strategy in which larger volumes of fluids (e.g. 10-20 ml boluses) are administered for a limited period of time under close monitoring to evaluate the patient's response and to avoid the development of pulmonary oedema. The degree of intravascular volume deficit in dengue shock varies. Input is typically much greater than output, and the input/output ratio is of no utility for judging fluid resuscitation needs during this period.
The goals of fluid resuscitation include improving central and peripheral circulation (decreasing tachycardia, improving blood pressure, pulse volume, warm and pink extremities, and capillary refill time <2 seconds) and improving end-organ perfusion - i.e. stable conscious level (more alert or less restless), urine output ≥ 0.5 ml/kg/hour, decreasing metabolic acidosis.
Following the said protocols since neither any hemorrhages had been observed or leakage and since there was no deterioration in the platelet count below 32 thousand, the steps already taken were in accordance with the said protocol. Since there was no bleeding either suspected or otherwise there was no occasion for blood transfusion.
Learned Counsel then invited the attention of the Bench to the literature filed by the Opposite Party No.1 as exhibited R-1/8 along with the evidence of affidavit which is a publication regarding prevention and treatment of Dengue. It is urged that the said extracts are almost similar to the literature filed on behalf of the Complainant on record. It is pointed out with the help of the said literature that Thrombocytopenia to be is controlled by transfusion of blood when the platelet count falls below 10,000/mm3. In these circumstances, the therapy which was adhered to was in consonance with the guidelines so prescribed and is almost the same as has been relied on the literature cited by the Complainant. From the note sheet, it appears that the condition of the child started deteriorating at about 09:10 AM on 06.10.2013 and was reported to be in shock when medicines were infused and dopamine was injected, oxygen by hood was also infused and an ABG test was carried out. The note sheet at about 09:40 AM records blood pressure 80/60 and heart rate 80 per minute. The child was stated to be irritable but was talking and was asking for water at about 10:30 AM. It is in this condition that the child was shifted to Max Hospital for tertiary care.
The contention of the learned Counsel for the Complainant that the child was being given treatment when she had already expired does not appear to be correct as per the aforesaid records.
There are certain queries raised during enquiry before the Chief Medical Officer that have been answered. The said interrogatories have also been brought on record to demonstrate that these doubts with regard to the management of the patient had been clarified. The evidence by way of affidavit of the Opposite Parties 2&4 also supports the said contentions.
The aforesaid facts on record and sequence of events as well as the line of treatment therefore do not indicate negligence or gross negligence either on the part of the Opposite Party No.1 or the hospital in proceeding to treat the child according to the norms prescribed for treating Dengue fever.
Learned Counsel for the Complainant has invited the attention of the Bench to the judgment in the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors. (2009) 9 SCC 221 to urge that the ordinary skills or competence required for the purpose of dealing with the deceased at hand were not followed in this respect paragraph 136 to paragraph 141 of the judgment are extracted hereinunder:
136. Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinary prudence.
In Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582 : (1957) 2 All ER 118] the law was stated thus: (WLR pp. 586-87)
where you get a situation which involves the use of some special skill or competence, then the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. [A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a [doctor] is not negligent, if he [has acted] in accordance with such a practice, merely because there is a body of opinion [which takes] a contrary view.
It has been laid down that an ordinary skilled professional standard of care for determining the liability of medical professional should be followed. (See Maynard v. West Midland Regional Health Authority [(1984) 1 WLR 634 : (1985) 1 All ER 635 (HL)] .)
Recently in Martin F. D'Souza v. Mohd. Ishfaq [(2009) 3 SCC 1 : (2009) 1 SCC (Cri) 958] this Court laid down the precautions which doctors/hospitals, etc. should have taken, in the following terms: (SCC pp. 19-20, para 47)
(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly.
(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.
(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.
(e) An expert should be consulted in case of any doubt.
In fact, Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118] in common law jurisdictions is weakened in the recent years by reason of a series of decisions in Australia (Rogers v. Whitaker [(1992) 109 Aus LR 625] and Rosenberg v. Percival [2001 HCA 18] ); Canada (Reibl v. Hughes [(1980) 114 DLR 3d 1 (Can SC)] ) and the United States and even in the United Kingdom.
We may refer to Bolitho v. City and Hackney Health Authority [(1998) 1 AC 232 : (1997) 3 WLR 1151 : (1997) 4 All ER 771 (HL)] where the Court got away from yet another aspect of Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118] . It was observed: (WLR pp. 1158 H-1159 C)
the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. The use of these adjectivesresponsible, reasonable and respectableall show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.
In this regard it would be imperative to notice the views rendered in Jacob Mathew v. State of Punjab [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] where the Court came to the conclusions:
(i) Mere deviation from normal professional practice is not necessarily evidence of negligence.
(ii) Mere accident is not evidence of negligence.
(iii) An error of judgment on the part of a professional is not negligence per se.
(iv) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
A perusal of the aforesaid ratio if applied on the facts of the present case indicates that the Opposite Party No.1 as well as the hospital have taken due care and precaution as per the current practices after making an analysis based on pathological tests and the symptoms of the patient as recorded in the note sheets. Logically, the steps taken could not be pointed out to be either faulty in medical terms or otherwise to be negligent or deficient in the services that were required for the management of the health of the child.
The other judgment relied on in the case of Ashok Kumar Upadhayaya Vs. Dr. D.N. Mishra 2011 CPJ 194 also does not come to the aid of the Complainant on the facts of the present case. On the other hand learned Counsel for the Opposite Party No.1 has relied on the judgment in the case of Kusum Sharma Vs. Batra Hospital And Medical Research Centre & Ors (2010) 3 SCC 480 to urge that the reasonable degree of skill and knowledge was exercised and there is nothing on record to indicate that the protocol observed by the Opposite Party No.1 fell short of a reasonably competent doctor. Reliance was also placed on the order of this Commission in the case of Tarlok Chand Mattu Vs. Vasal Hospital & Anr. 2017 SCC Online NCDRC 399 to point out that the Complainant has not been able to establish as to exactly what the doctor ought to have done as per the standards of normal medical parlance and was not done. Reliance was also placed on the order of this Commission in the case of Mukhthyar Singh Vs. Kasturi Devi 2015 SCConline NCDRC 742 to substantiate the previous judgment which were both relating to Dengue Shock Syndrome. It is urged that in both these judgments it was found that the patient was diagnosed with viral fever and then with Dengue for which an appropriate line of treatment was followed. As already indicated above the facts of this case nowhere demonstrate any shortfall, negligence or deficiency in the line of treatment and care that was required to be taken including the prescription of medicines.
Thus, in the absence of any such material to support the allegations made by the Complainants, the deficiency or negligence in any way does not seem to be established on record. Consequently the complaint cannot succeed and is hereby rejected.