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Judgment
The brief facts relevant to dispose of this appeal are: The Complainant (C-1), Dr. P. K. Palanisamy''s son Mr. K. P. Mohanavelu about 39 years of age, (since deceased herein ''the patient'') suffered fever and on 23.8.2010 approached in the OPD at Sakthi Hospital & Research Centre/OP 1. Again, he got fever 102? F, had gone to same hospital on 3.9.2010. Dr. Shivakumar/ OP 2 prescribed antimalarial drugs. There was no improvement. On 5.9.2010 patient had fever of 101? F and cough with blood, he was admitted in the ICU at about 1.16 p.m. by Dr. Shivakumar/OP 2 and advised Typhoid test only instead of test for Swine Flu (H1N1). OP-2 failed to take proper precaution, failed to get a simple swab test for Swine Flu (H1N1). The blood test results were not procured within time. The OP made false entries in the progress sheet. The progress sheet did not show any name and signature of the consulting doctors and staff nurse present in the ICU. The patient was also suffering from ARDS (Acute Respiratory Distress Syndrome). Due to lethargy of nursing staff, the Chest Physician Dr. Nalini Jayathi attended the patient after delay of 9 hours. Patient was put on Ventilator after considerable delay. The act was against the MCI Code of Ethics 3.3, i.e. Punctuality in Consultation. On 7.9.2010, at about 10.30 PM, the patient was shifted to Government Hospital, Chennai, with the discharge summery showing final diagnosis as Enteric fever (Typhoid Fever). It was misdiagnosis. At the time of discharge, OP 1 took false endorsement from the 2 nd wife of patient i.e. Smt. S. Deeparani (OP No. 4) as "I take my husband Mr. K. P. Mohanavelu in a good (healthy) condition." The patient ultimately died on 10.9.2010. Therefore, considering overall sequence of events, it was alleged that the OPs were negligent in diagnosis and treatment of the patient, also violated MCI Code of ethics 3.1, 3.2 and 3.3. The Complainants ( Parents and son of deceased) filed a complaint before the State Commission at Chennai for compensation of Rs.65,41,210/-
After considering the pleadings and evidence, the State Commission dismissed the complaint. Therefore, aggrieved by said impugned order, the Complainants preferred this appeal.
We have heard learned counsel for both the parties. Learned counsel for the complainants vehemently argued that the State Commission erroneously dismissed the complaint by simply relying on version of letter sent by the second wife of deceased to the State Commission. It was a forged letter. The OPs 1 to 3 in order to escape from the medical negligence, intentionally took endorsement from the patient''s second wife even after H1N1 was diagnosed at 8.20 p.m. The counsel relied upon the judgment of Hon''ble Supreme Court in V. Kishan Rao V. Nikhil Super Specialty Hospital & another (2010) 5 SCC 513. He submitted that, the principle of Res Ipsa Loquitter is applicable in the instant case. The patient was taken to Government Hospital in serious condition.
Learned counsel for OP argued that, it was not the case of failure to diagnose Swine Flu. The OP/hospital and doctors therein treated the patient with full caution and care. The counsel brought our attention to the guidelines prescribed by WHO and Ministry of Health and Family Welfare, on Categorization of influenza A-H1N1 cases during screening for home isolation, testing treatment, and hospitalization (Revised on 5.10.09). It is further argued that in the first instance, patient came to the OP with the history of cough and fever. There was no complaint of sore throat. As per prescribed guidelines, the patient came under category ''A'' and ''B''. As the patient did not fall under Category of ''C''. Therefore, at that point, there was no need for the testing of H1N1 and immediate hospitalization. It is pertinent to note that patient was admitted on
9.2010, it was short stay and on 7.9.2010, all the tests were performed.
In order to appreciate the contention of the appellant, it would be useful to have a look on relevant guidelines prescribed by WHO and Ministry of Health and Family Welfare, which are reproduced as under:
"Guidelines on categorization of Influenza A H1N1 cases during screening for home isolation, testing treatment, and hospitalization (revised on 05.10.09)
In order to prevent and contain outbreak of Influenza-A H1N1 virus for screening, testing and isolation following guidelines are to be followed:
At first all individuals seeking consultations for flu like symptoms should be screened at healthcare facilities both Government and private or examined by a doctor and these will be categorized as under:
Category -A
Patients with mild fever plus cough / sore throat with or without body ache, headache, diarrhea and vomiting will be categorized as Category-A. They do not require Oseltamivir and should be treated for symptoms mentioned above. The patients should be monitored for their progress and reassessed at 24 to 48 hours by the doctor.
No testing of the patient for H1N1 is required.
Patients should confine themselves at home and avoid mixing up with public and high risk members in the family.
Category-B
(i) In addition to all the signs and symptoms mentioned under Category-A, if the patient has high grade fever and severe sore throat, may require home isolation and Oseltamivir;
(ii) In addition to all the signs and symptoms mentioned under Category-A, individuals having one or more of the following high risk conditions shall be treated with Oseltamivir;
Children with mild illness but with predisposing risk factors.
Pregnant women;
Persons aged 65 years or older
Patients with lung diseases, heart disease, liver disease, kidney disease, blood disorders, diabetes, neurological disorders, cancer and HIV/AIDS
Patients on long term cortisone therapy
No tests for H1N1 is required for Category-B(i) and (ii).
All patients of Category-B (i) and (ii) should confine themselves at home and avoid mixing with public and high risk members in the family
Category-C
In addition to the above signs and symptoms of Category-A and B, if the patient has one or more of the following:
Breathlessness, chest pain, drowsiness, fall in blood pressure, sputum mixed with blood, bluish discolouration of nails;
Children with influenza like illness who had a severe disease as manifested by the red flag signs (Somnolence, high and persistent fever, inability to feed well, convulsions, shortness of breath, difficulty in breathing etc.
Worsening of underlying chronic conditions.
All these patients mentioned above in Category -C require testing, immediate hospitalization and treatment.
We have perused the medical record. The OP/hospital and doctors therein treated the patient as per the signs and symptoms. Initially, patient had symptoms of only fever and cough. There was no sore throat or blood in sputum and therefore, provisional diagnosis was suspected malaria or typhoid or any other viral fever. History was very short history, subsequently on 3 rd day (7.9.2010) patient developed symptoms of Swine Flu, accordingly he was tested for H1N1. Therefore, patient was shifted to Government Hospital, which was mandatory. It is pertinent to note that, as per Government Circular initially on 5 th and 6 th Sept 2010, patient''s signs and symptoms were falling within the category ''A'' or ''B''. There was no need for testing of H1N1. On bare perusal of the Guidelines (See : Pandemic Influenza A H1N1 from the ministry of Health and Family Welfare), it is clearly mentioned that no tests are required for the patient falling under category ''A'' & ''B''. The patients, who fall under category ''C'' require testing and immediate hospitalization and treatment.
At the time of discharge, the patient was in stable condition. It was asserted by the 2 nd wife of the deceased. We do not find reason to disbelieve it. In our view there was no delay in the management of the patient at OP-1 hospital. The OP-2 attended the patient promptly. The line of investigations and treatment was as per the guidelines of H1N1. Patient was referred to Govt Hospital at proper time. It was a duty, a reasonable standard of practice.
Catena of judgments from Hon''ble Apex court has discussed about liability of doctors in medical negligence cases. The skill of doctor differs from other; he can choose a reasonable line of treatment. Hon''ble Supreme Court in Achutrao Haribhau Khodwa vs. State of Maharastra - 1996 (2) SCC 634, held that: "The skill of medical practitioners differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."
We are of considered view that, there was no negligence in the diagnosis and treatment of the patient. OP-2 followed standard WHO guidelines on H1N1 diagnosis and treated the patient symptomatically. On the basis of forgoing discussion, we set aside the impugned order of State Commission and allow this first appeal. Consequently, the complaint is hereby dismissed. However, there shall be no order as to cost.