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Judgment
M. Shreesha, Member
This Appeal challenges the order dated 09.06.2016, passed by the Kerala State Consumer Disputes Redressal Commission at Thiruvananthapuram (hereinafter referred to as the State Commission) in Complaint Case No. 09/2009, whereby while partly allowing the Complaint, preferred by the Respondent herein, the State Commission has directed the Opposite Parties, the Appellants herein, to jointly and severally pay to the Respondent/Complainant (hereinafter referred to as the Patient) a sum of Rs.12.00 Lakhs towards compensation, with interest @ 9% p.a. from the date of the Complaint till realization, as also costs of Rs.10,000/-.
The brief facts, as culled out from the Complaint, are that Appellant/Opposite Party No.1 is one of the leading private hospitals in Thiruvananthapuram (hereinafter referred to as the Appellant Hospital) and Appellants/Opposite Parties No. 2 and 3 are its Doctors, who had treated the Patient. Induced with the advertisement issued by the Appellant Hospital and expecting the best treatment, the Patient in her first pregnancy consulted Appellant/Opposite Party No.2, who confirmed the pregnancy and advised the Patient to consult her with a scan report on 07.07.2008 for routine check-up and clinical examination. On an examination on the said date, Appellant/Opposite Party No.2 assured the Patient that the foetus was in good condition and growth and thereafter the Patient had been undergoing routine check-ups as advised by Appellant/Opposite Party No.2. On 02.10.2008, she developed a serious breathing problem and contacted Appellant/Opposite Party No.2, who advised her to consult Appellant/Opposite Party No.3. On examination by both the Doctors, the Patient was prescribed certain medicines. Thereafter, on 29.10.2008 and on 08.11.2008 the Patient visited Appellant/Opposite Party No.2, who stated that the breathing problem was a usual phenomenon during pregnancy. However, despite taking medicines as prescribed by the two Doctors, on 24.12.2008 the breathing problem persisted and the Patient also started feeling inflammation (oedema) in her legs. The Patient was admitted in the Appellant Hospital as an Inpatient on 01.01.2009 and remained under treatment of both the Appellant Doctors. On an enquiry by the Patient's husband and her relatives, the Doctors ruled out the scope of caesarian operation and assured them that they were experienced and competent to decide the mode of treatment. The Patient was unable to lie on the bed and had not slept during those days. However, on 13.01.2009, both the Doctors examined the Patient and suggested that a caesarian operation be performed as some labour symptoms had developed. The Anesthetist examined the Patient and, as per his direction, the Doctors referred the Patient to a Cardiologist, who advised certain tests. At that time, the Appellant Doctors disclosed that the child in the womb had died on 12.01.2009 due to dilated cardiomyopathy and referred the Patient to KIMS Hospital, Thiruvananthapuram on the ground of lack of facilities in the Appellant/Hospital. The Patient was treated in KIMS Hospital as an inpatient from 13.01.2009 to 05.03.2009 and from 11.03.2009 onwards and underwent surgical operation, dialysis etc. The Patient was still continuing her treatment in KIMS Hospital as an Out Patient.
It is averred that on account of wrong diagnosis, lack of proper diagnostics, careless and negligent treatment of the Appellants/Opposite Parties, the Patient had suffered and hence filed a Complaint before the State Commission, praying for a direction to the Opposite Parties to pay a sum of Rs.30.00 Lakhs as compensation, together with interest @ 12% p.a. from the date of Complaint till realization.
Upon notice, the Appellants/Opposite Parties filed their joint Written Version, denying negligence, deficiency in service, averments, claims and contentions in the Complaint. It was inter alia stated on their behalf that the Patient first consulted Opposite Party No.2 on 17.01.2008 with complaint of urination and thereafter on 19.01.2008 and 05.04.2008. On 13.06.2008 the pregnancy was confirmed to the Patient and she had no complaints at that point of time. On 16.07.2008, when the Patient consulted Opposite Party No.2, there were signs of threatened abortion and accordingly medicines were prescribed and investigations done. Repeat USS (Ultra Sound Scan) was advised on 21.07.2008. On 21.07.2008 the foetal growth was assessed and was noted as 11 weeks gestation, low implantation placenta with estimated date of delivery as 03.02.2009. In routine consultations of the Patient between 01.08.2008 and 15.12.2008 nothing unusual was observed or reported. On 01.01.2009 the Patient complained of breathlessness and difficulty in lying down, when uterus was 34 weeks, foetal heart beatwas good and BP was normal. The Patient was referred to Opposite Party No.3 (Consultant Physician), as it was a medical problem complicating pregnancy. Opposite Party No.3 examined the Patient. It is averred that her pulse rate was 84/mt., Pallor present, mild oedema, BP 120/90, oxygen saturation was 97%. The Patient was admitted and treated for Acute Bronchitis and Asthma and Opposite Party No.2 was also reviewing the Patient in the Hospital as a Gynaecologist. Her condition improved with Anti-Asthma medication, Antibiotics and Iron Tablets. On 07.01.2009, the Patient was referred to Dr. P. Raveendran, Professor of Pulmonology, who advised her to continue asthma medication. At that time, her BP was normal at 110/80 mg. Dr. Raveendran again examined the Patient on 09.01.2009 and advised medication. On 12.01.2009 Dr. Raveendran reviewed the case. That evening at 7.45 PM, the Patient had Hypoglycaemia and BP droped IV glucose was given immediately and her blood sugar returned to normal, oxygen saturation was 96% and BP 130/70 mg. On 13.01.2009 the Patient reported leaking per vaginum in the labour room. The foetal cardiogram showed movements and foetal heart was recorded till 11.25 AM as normal (132/min), when the Patient was shifted to KIMS Hospital. Prior to Caesarian operation, Dr. Tennyson had seen the Patient.
It is averred that caesarian operation was considered necessary because the Patient had started leaking and the Cervix was not favourable for a normal delivery and as the necessary facilities were not available with the Appellant Hospital, the Patient was referred to KIMS. Further, it is averred that if the Patient had complained of breathlessness and inflammation, she would have been advised hospitalization. But, the Patient had reported in the Hospital only on 01.01.2009, complaining breathlessness, inability to lie down even for a short period, and accordingly she was advised admission by the Treating Doctors. While in the Appellant Hospital, the Patient had been attended to by the Physician, the Gynaecologist and the Pulmonologist. As regards Caesarian Operation, it was felt that it should not be attempted at that time because the baby was too premature for removal and if caesarian section was done on a patient with respiratory problems, it would aggravate the condition and could prove fatal. On 13.01.2009, in view of the Patient's condition, the caesarian section was considered necessary. Prior to the said procedure, the Patient was examined by the Anesthetist and Cardiologist. The Echo test showed that she had Cardiomyopathy and the aforesaid procedure should be conducted with ventilator support. Since the said facility was not available in the Appellant Hospital, the Patient was transferred to KIMS Hospital. The statement that Opposite Party No.2 had disclosed that the child in the womb had died on 12.01.2009 was a false statement. All the allegations regarding lack of proper diagnosis, wrong diagnosis, negligence etc. are denied. It is pleaded that the Patient had a serious condition, Cardiomyopathy, which would require expert and often elaborate procedures over a period of time. Peripartum Cardiomyopathy is occasionally seen in the last month of pregnancy or two weeks after delivery. It cannot be diagnosed early and diagnosis can be made only when it occurs. Therefore, the Complaint was liable to be dismissed.
On appreciation of the Evidence adduced by the parties and material on record, the State Commission came to a conclusion that Opposite Parties No. 2 and 3 failed to evaluate the condition of the Patient diligently and refer the Patient for cardiac evaluation at the right time and thereby they fell below reasonable standards of medical parlance, expected in such a situation, and are guilty of medical negligence. The State Commission consequently partly allowed the Complaint with the aforesaid directions.
Hence, the Appeal by the Appellants/Opposite Parties.
Learned Counsel appearing for the Appellants contended that the Complainant had a serious condition of chest Cardiomyopathy which cannot be easily detected and that it is not standard protocol to take ECG of a patient each time she complains of breathlessness; that occasional breathlessness and difficulty in lying down is experienced by many woman on advanced pregnancy stage; that the symptoms of asthma and breathlessness in the Patients was controlled and brought down by medication and that the liability for the loss of the baby cannot be fastened on the Appellants as even prior to shifting of the Patient to the Speciality Hospital i.e. 12.01.2009 and 13.01.2009 the foetus was alive and moving and that the Medical Board had clearly revealed that there was no negligence, but the State Commission has only placed reliance on the last sentence wherein it was stated by the Board that ' a chest X-ray and cardiac evaluation could have been sought for earlier'.
The brief point for consideration is whether there was any negligence on behalf of the Appellants in treating the Patient and the same has to be tested on the touch stone of the 'duty of care' and 'standard of care' which ought to be exhibited by the treating doctors as laid down by the Hon'ble Supreme Court in a catena of judgements.
A three-judge Bench of the Hon'ble Supreme Court in Dr Laxman Balkrishna Joshi v Dr Trimbak Bapu Godbole stipulated that the standard to be applied by a medical practitioner, must be of a "reasonable degree of care". It further held as under :-
" 11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient, owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties, gives a right of action for negligence to the patient. 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 (cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17).
In Jacob Mathew v State of Punjab, a three-judge Bench of this Court upheld the standard of the ordinary competent medical practitioner exercising an ordinary degree of professional skill, as enunciated in Bolam (supra). The Court held that the standard of care must be in accordance with "general and approved practice".
Since the formulation of the Bolam test , English Courts have formulated a significantly nuanced doctrine pertaining to the standard of care. In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-
"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 cases, 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 operated in a different way; nor is he 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, even though a body of adverse opinion also existed among medical men.
Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.
(Emphasis Supplied)
In Arun Kumar Manglik Vs. Chirayu Health and Medicare Private Limited & Anr., (2019) 7 SCC 401 , the Hon'ble Supreme Court, has laid down that ' o ur law must take into account advances in medical science and ensure that a patient-centric approach is adopted' .
From the medical records, it is seen that the Patient a pregnant lady being treated by the Appellants herein right since inception of the pregnancy, was diagnosed to be an asthmatic patient and was treated accordingly by consulting Pulmonologist Dr. P. Raveendran. The prescriptions evidences that the Patient have no significant relief from breathlessness despite treatment with Bronchodilator. It is an admitted fact that as on 13.01.2009, when the Patient was planned for emergency Caesarian Section, the foetal condition was good and only during pre-operative anesthetic evaluation, the anesthetist suggested ECG and cardiac evaluation. She was treated with the relevant medicines and referred to a higher center with ICU facility as the cardiologist had diagnosed a block on the ECG and the ECHO done by him showed dilated Cardiomyopathy with poor LV function. It is the Appellants case that Peripartum Cardiomyopathy is a very rare disease and cannot be diagnosed in the first instance and when a pregnant lady having several hormonal changes together with a history of asthma it cannot be said that the standard protocol of ECG and cardiac evaluation ought to have been done at a prior stage i.e. prior to the pre-anesthetic evaluation.
A perusal of the Doctor's prescriptions and medical record shows that the Complainant had no previous history of asthma or such history, which is noted clearly on 07.01.2009, therefore the contention of the learned Counsel appearing for the Appellants that the Patient had previous history of asthma is unsustainable. It is relevant to reproduce the exact noting of the doctors, from 07.01.2009 to 13.01.2009, which is detailed as hereunder:
Date
Daily Assessment
Treatment Ordered
07.01.2009
History of Wheezing about 3 mths
No previous history of Asthma or such history O/E Few ronchi +
Bricaryl 5mg x 1 7 ds Levolin Nebulization
1.258 mg 4 th hrly &
SOS
Dosimide Nebulization 6 hrly
08.01.2009
Anaemia Rpt all
Added cause wheeze
Referred to review Dr. Raveendran
08.01.2019
Improving
Derinide Nebulization 8th hrly
09.01.2009
C/o General weakness
O/E Bp 110/80 mm of Hg
O2 Saturation 98%
Chest B/L ronchi +
Informed
Dr. Krishna Kumar
Continue same
09.01.2009
?Bricanyl side effects
Reduce Bricanyl to
Bricanyl Durules
Happi 20mg 1-0-1
Continue orders
10/1/09
Afebrile
C/o tiredness
Sleep Disturbance
Bp 110/70 mm of Hg
Revised Orders
D9 1. T. Roxid 150 1-0-1
Cap Dexorange 1-0-1
3.Sheleal 500 1 x 0D
Mox 500 mg 1-1-1
Brocanyl Durules 5mg 1-0-1
6.Happi 20mg 1-0-1
Inj. Derriphylin lamp IV 6 th hrly
Levolin Nebulization 4 th hrly & SOS
Derinide nebulization 8thy hrly
Steam Inhalation x bd
10/1/09
Reported to LR with the c/o
FM with dyspnea
P/A ut 34-36 weeks, Vx
FHS
Bp. 120/80 mm Hg
Pulse-80/mt
Informed madam
11/1/09
Rpt all
12/1/09
C/o abd discomfort with dyspnea ut 36 wks Vx fixed FHS
PV cervix unaffected OS closed
Head at- 3
Pelvis normal
NST in labour room
12/1/09
Pt tachyphoec
O/E Afebrile, pallor ++, Icterus
Bp 110/80 mm of Hg
Chest-clear
P/A soft, non tense
B/L pitting pedal edema
D11
1.Tab. Roxid 150 mg 1-0-1
2.Syp gelucil 1 ½ tsp tds
3.Cap Dexorange 1-0-0
4.Tab. Shelcal 500 mg 1 x OD
5.Cap Mox 500 mg 1-1-1
6.Bricanyl durules 5mg 1-0-1
Happi 20 mg 1-1-1
8.Inj. Deriphytin lamp IV Q 6 hrly
Levolin Nebulization Q 4H & SOS
Derinide Neb Q 8H
Steam Inhalation BD
Bricanyl durules 5 mg
1-0-1
12/1/09
Referred to review to Dr. Raveendran
12/1/09
No Bronchospasm
Pantodac DSR
1 daily at 7 am
Bricanyl Durule
5mg 1-0-1
Levolin 1.25 mg SOS
Nebulization
12/1/09
08 10pm
At 7.45 pm, RBS 10 mg% informed labour room duty doctors by sister and was advised to recheck RBS & IO 100ml 25% Dextrose stat called to see patient
O/E patient restless, irritated
PR 68/mt
Bp-80/50 mm Hg
GRBS-169 mg%
Chest-clear
Informed Dr. Krishna Kumar, Dr. Subadra & Dr. Raveendran
Adv
IO N/S, IIO DNS
Levolin Nebulization
Stat
O2 nhalation SOS
09 30 pm
Seen by Dr. Subadra
Pt is restless, chest wheezing +
Pulse 78/mt, BP 110/80 mm Hg
O 2 saturation 96% Rpt RBS 169 mg%
Ut 36 wks Vx odema+
Pt is not willing to lie in bed
FHS + no contractions Pt is anxious
Feb. 13
Informed Dr. Subadra Nair
Adv
Diazepam 5mg & O2 Inhalation SOS
13/1/09
3.30pm
8.0 AM
9.0 AM
Reported LR with c/o leaking
ut 36 wks, Vx, FHS + BP 120/80 mm Hg
O/E leaking +
Informed Dr. S. Nair, Informed Dr. Krishna Kumar about on Betnesol
Advised to give hrly RBS
BP 130/70 mm Hg
Informed the condition to Dr. Krishna Kumar
FHS+ Mild Pain IV Rantac 1 amp with Perinorm 1 amp sos
Levolin nebulization
2.O2 Inhalation 4 hrly
3.IV Augmentin 1.2gm after test dose
4.IV Betnesal 12 mg RBS-280mg
5.Derinide Inhalation 4th Shrly
6.IVDerriphylin 1 amp sos
7.Nil Orally
8.Propped up position
9.Bld grouping & cross matching
13/1/09
7.30 AM
8.00 AM
Hb%-8.8 gm%
Bld urea 137 mg%
S. Creatinine 2.9
HIV-Negative
RBS-239 mg %
TLC24,100-N88 L12 ESR-42
BT1'30''
CT5'30'
FHS +
Leaking +
Informed
Dr. Raveendran
Bp 130/88 mm Hg
Vomited once- coffee colour
To Dr. Beena Unnikrishnan
Consultant Nephrology
Respected madam
Kindly see the patient
Antenatal due on Feb 13 th now C/o
Breathlessness since yesterday (Blood urea 137 mg % s. Creatinine 2.9)
Kindly exam her and give your valuable opinion
Thanking You
Yours Sincerely,
For Dr. Subhadra Nair
13/1/09
Cardiology Opinion
Thanks for referral
H/o Dyspnoea 2 days
HR100/mt Bp 120/80 mm Hg
DVP lower limb odema
S3 + lungs clear
ECG: sinus tachy cardia-LBBB
ECHO: LV dilated EF 24%
Global reduction in LV Contractility
MR JR 38mg
Blood: urea 137 mg/dl Ceatinine 2.9 mg/dl
Hb: 8.8 gm%
Imp-Dilated cardio myopathy- peripartum
Renal failure
Suggest
-Tab digoxin ½ all hrly alternate day
- INj. Lazix 20mg IV 8th hrly
-Inj. Debutamine infusion 250mg in 200 ml of dextrose start with 2 drops & Increase to 4 drops
-O2 inhalation
Opinion from Nephrologist
Very high risk case for continuation of pregnancy Surgical procedures. To explain to relatives Antibiotic cover for Invasive/ surgical procedures and labour. Ideally may require the treatment from higher centre in case of IABP support is needed Explained the gravity of situation to husband & fathe
Discussed with Dr. Shyamala & Anaesthetist in KIMS
11.15 AM
13/1/09
Referred for further management
13/1/09
09 45 hrs
Seen by Dr. Beena Unnikrishnan
Recently diagnosed as peripartum cardiomyopathy
Admitted with dyspnea flad (N) renal function presently has deranged lever function test + renal parameters?
CCF with ed Renal failure
From the aforenoted medical record it is clear that on 07.01.2009, when the Patient was seen, it is noted that there was history of wheezing of about three months. In fact, it has been clearly noted that the Patient did not have any previous history of Asthma. On 08.01.2009 wheezing continued which was referred to a Pulmonologist. Than on 10.01.2009, the Patient complained of tiredness and sleep disturbance which continued on 11.01.2009 and 12.01.2009. She was reviewed on 12.01.2009 by Dr. Raveendran, it is seen that the Patient continued to be restless and irritated and at 9.30 pm on 12.01.2009 there was clear recording that chest wheezing. Even at that point of time treating Doctors did not advise any chest X-ray or cardiac evaluation. When a pregnant patient was continually complaining of breathlessness the doctors ought to have done an ECG, which is a basic standard protocol at a prior stage. At this juncture, it is relevant to place reliance on the final conclusion of the Medical Board, which is reproduced as hereunder:
"It can be understood that Smt. Veena Krishnan has developed peripartum cardio myopathy - a condition of severe heart failure which develops during the last month of pregnancy and can occur till 5 months post partum. Very likely she has developed peripartum cardiomyopathy during the last months of pregnancy. The symptoms would have been masked by the presence of bronchial asthma earlier. She was diagnosed to have peripartum cardiomyopathy with low output state and renal dysfunction on 13.01.2009 and referred to an advanced centre for further care.
There is no evidence of medical negligence on the part of the Gynecologist and the Physician. However, a chest x-ray and cardiac evaluation could have been sought for earlier. Peripartum cardiomyopathy as such is a serious cardiac condition with high maternal and fetal mortality. Even if the patient survives the first episode, there is a high chance of recurrence on subsequent pregnancy and patients once diagnosed to have peripartum cardiomyopathy are advised against any further pregnancy."
(Emphasis Supplied)
As can be seen from the opinion given by the Medical Board, Peripartum Cardiomyopathy is a serious cardiac condition with high maternal and foetal mortality. Though any medical negligence has been refuted by the Medical Board on the part of the Gynecologist and the Physician, the Board has however opined that the chest X-ray and cardiac evaluation could have been sought for earlier . The Patient was admittedly not a high risk Patient at the time of admission in the Hospital, the foetal heart beat was good and had the Appellant sought for a chest X-ray and cardiac evaluation at an earlier stage perhaps the baby could have been saved. Though we accept the contention of the learned Counsel for the Appellants that extensive tests and procedure are never conducted at the very inception, however, in the instant case, it is noted that ECG is not an extensive test or procedure and it is a most basic test, which is considered as standard protocol in a situation where the pregnant woman was in the last stages of pregnancy and continuously complained of breathlessness. Hence, we are of the view that the Appellants and treating doctors were negligent in not performing a cardiac evaluation at the earlier stage, which could have prevented the loss of the baby and also the subsequent treatment which the Patient had to undergo by spending in the Speciality Hospital from 13.01.2009 to 05.03.2009 and was once again hospitalized from 11.03.2009 to 18.03.2009 for a period of more than two months.
Having regard to the circumstances of the case and also that Medical Board did not opine any medical negligence per se except for not directing for a cardiac evaluation and ECG at an earlier stage, we are of the considered view that the compensation awarded by the State Commission at Rs.12,00,000/- together with interest @ 9% p.a. from the date of filing of the Complaint till the date of realization is on the higher side. Since the amount of Rs.12,00,000/- has already been awarded by way of compensation, we set aside the interest which has additionally been awarded. It is observed from the record that in compliance of the order dated 23.09.2016 the Appellants deposited an amount of Rs.6,00,000/- with the state Commission, the same with the accrued interest shall stand released to the Complainants and the balance shall be paid by the Appellant within four weeks from the date of receipt of a certified copy of this order failing which the amount shall attract interest @ 9% p.a. from the date of this order till realization. However, the findings recorded in this order will not have any effect on the career of the Appellant Nos. 2 and 3 herein.