Mukesh Jain vs K L ANAND

-ON account of death of the wife of the complainant No. 1 during MRI scan the complainants have sought compensation of Rs. 10 lacs alleging medical negligence on the part of OP-doctor and hospital.

CASE of the complainants, in brief, is that on 3. 5. 2001 at 9. 00 a. m. Smt. Sudha Jain accompanied with her husband, reached the diagnostic centre of the opposite party (OP) and the OP charged Rs. 5,000 vide receipt No. 313 dated 3. 5. 2001 for conducting MRI and thereafter the complainant No. 1 was told that MRI will be conducted after 11. 00 a. m. since the OP was attending to some other patient. Thereafter the complainant accompanied with his wife left for home to come again at 11. 00 a. m. At about 10. 45 a. m. Smt. Sheela Jain was told by complainant who is also the brother-in-law of the complainant that since he had some work, she should take the deceased for MRI test at Dr. Anand''s Research Centre, Preet Vihar who had told to come at 11. 00 a. . m. Accordingly she accompanied Smt. Sudha Jain to Dr. Anand''s Research Centre and told that as instructed, we have come for MRI test and further informed that the money has already been deposited. Then they were told to take her inside where after lying on the machine Smt. Sudha Jain started feeling suffocation and it was told that she was to be anaesthesiased and for that Rs. 800 to Rs. 1,000 extra will be charged and accordingly extra amount was deposited. Further on inquiry by OP, Smt. Sheela Jain informed the OP that she had taken a light break-fast. On this the doctor attending her told that it hardly matters. Further she requested to stay there at the time of test, but they refused. Then she sat in the reception. After considerably long time she enquired about the deceased and was told that test was still going on. Then after sometime one lady Doctor came out and asked Smt. Sheela Jain whether the patient had taken some food or not to which she said that she had already told it earlier that the deceased had a light breakfast. Then the attending lady doctor told that the deceased had vomited and some food particles had gone in her lungs. Then Smt. Sheela Jain went inside where Dr. Anand told her that the deceased had to be shifted to Deepak Memorial Hospital. To this Smt. Sheela Jain objected and told Dr. Anand that she may accompany the patient and that he will inform the family members. When Smt. Sheela Jain sat with Smt. Sudha Jain in the van and touched the hands of Smt. Sudha Jain, she found that her entire body was cold and on further inquiry from the lady doctor accompanying, she told that the body is cold due to the A. C. and after that Smt. Sudha Jain was taken inside Deepak Memorial Hospital and thereafter Smt. Sheela Jain was not informed anything. On repeated questioning by Smt. Sheela Jain, she was informed that the patient has been taken in the I. C. U. up-stairs and she was stopped from going there and she was told that the doctors are looking after her and she could not go inside. After sometime family members had also arrived and then it was told that Smt. Sudha Jain has died. Hence this complaint.

As against this the version of the OP is that the deceased was attended by Dr. Anju Tuli at 12. 38 p. m. before conducting MRI test. The patient was non-cooperative and was feeling nervous to undergo the test. In view of the attitude she was told by Dr. Anju Tuli that the said test can only be conducted if she agrees and consents for anaesthesia/sedation. The patient also informed that she has come empty stomach and has not taken even light break-fast. Dr. Anju Tuli, after taking the consent of the patient, gave her anaesthesia and the MRI test was conducted at 12:40:57 hours and scan were completed at 1:19:03 hours. The MRI test was successfully conducted and the patient was alive at that time as no MRI test can be conducted if the patient is dead. MRI test was conducted by Dr. Sandeep Kawtra. After completion of the test, the patient started vomiting and as needed the patient was given suction, injection and put on endotracheal so that the vomiting material may not go into the lungs. Since the patient was feeling uneasy, Dr. Anju Tuli insisted that the patient be shifted to Deepak Memorial Hospital where more sophisticated equipments to resuscitate the patient were available. After great persuasion the relatives of the patient agreed and the patient was taken in the emergency van well equipped and Dr. Anju Tuli accompanied the patient to the said hospital. The patient was alive but was feeling uneasy. The patient was seen in the OPD at 2. 00 p. m. and she was immediately taken to ICU Unit of Deepak Memorial Hospital where doctor attended on her and tried level best to save the life of the patient but due to irony of fate her life could not be saved.

SO much so a case of criminal negligence was also registered against the OP and FIR registered by the police was quashed by the High Court with the observation that there was no criminal negligence on the part of the OP. In order to prove the medical negligence on the part of the OP-Imaging and Neurological Research Centre and the doctor who gave sedation and who conducted the MRI, the complainant has produced the following documents: (i) Ex. CW-1/d - Post-mortem report dated 4. 5. 2001 of Civil Hospital showing that the death was due to Asphyxia consequent of choking of windpipe by food particles, aspirated. It further observed that consent for MRI annexed with the papers of Anand Imaging Centre is inadequate and does not mention clear instructions for patient to come empty stomach as sedation may be required or uncooperative patient as in instant case the aspiration of food and choking of the windpipe led to the death. Time since death was about 24 hours.

(ii) Report from Central Forensic Science Laboratory dated 20. 8. 2001 showing that the death was not caused due to any toxicant or poison.

(iii) Report from Central Forensic Science Laboratory which is the final post-mortem report dated 23. 11. 2001 shows the opinion that ''death in this case was due to asphyxia consequent upon choking of the windpipe by aspirated food particles. ''

WE have accorded careful consideration to the rival contentions and claims. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers: (i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices? (ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence? (iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was up to the percentage of failures? (iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate? (v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in? (vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication? (vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?

References: (i) Bolam''s case reported in (1957) 2 All. ER 118, 121 D-F (ii) Sidway v. Bethlem Royal Hospital Governors and Others, (1985) 1 All. ER 643 (iii) Maynard v. West Midlands Regional Health Authority, (1985) 1 All. ER 635 (iv) Whitehouse v. Jordan and Another, (1980) 1 All. ER 650 (v) Indian Medical Association v. V. P. Shantha and Ors. , III (1995) CPJ 1 (SC)=i (1996) CLT 81 (SC)= (1995) 6 SCC 651 (vi) Jacob Mathew (Dr.) v. State of Punjab and Anr. , III (2005) CPJ 9 (SC)=122 (2005) DLT 83 (SC)=iii (2005) CCR 9 (SC)=vi (2005) SLT 1= (2005) SCC (Cr.) 1369. There is no dispute that MRI was conducted at the Imaging Centre of the OP-Dr. Anand and therefore any laps or shortcoming or inadequacy or negligence on the part of the doctors or the staff working there with the OP-Centre rendered the Centre vicariously as well as directly liable. It is not the case where the complainant had availed services of the doctor who gave injection of anaesthesia or conducted MRI independently. Complainant had gone to the Centre run by OP-doctor for MRI and therefore there was direct relationship of consumer and service provider between the complainant with the OP. However, problem in this case arose because the complainant was sent back home when first came to the Centre for MRI because the doctor was not free to conduct MRI. In the instant case contributory negligence of the complainant is also there as according to her she had taken the breakfast. However, inspite of her having told OP''s staff that she had taken breakfast before she was taken for MRI, the OP still started conducting MRI, may be for monetary reasons little realizing that it can create complication which it did create and resulted in death.

HOWEVER, OP has relied upon Ex. CW. 1/9, report of Board of Directors consisting Dr. K. L. Sharma, Dr. Rakuma Anand and Dr. S. K. Khanna who have observed that all the facilities are available with the OP-Centre to handle any emergency and consequently the deceased was taken to Deepak Memorial Hospital.

WE fail to understand as to why she was taken to Deepak Memorial Hospital if all the facilities to handle emergencies were available with them. The post-mortem report finally suggests that the death occurred due to asphyxia because of certain food particles having been choked in the windpipe. It appears because of administrative negligence inasmuch as that the staff of the OP was either not aware of the fact that the complainant who had informed that she had taken light break-fast could not be subjected to MRI test or they took it lightly that she could be subjected to MRI test even if she had taken light breakfast. There is no denying of the fact that the complainant and her relatives had informed that she had taken only light breakfast and therefore doctors of OP-Centre would not have known as a matter of fact as what is light break-fast and what is heavy breakfast.

Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical profession liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means ''any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service'' [section 2 (1) (g)].

TAKING over all view of the matter and in the given facts and circumstances of the case and nature of negligence which does not verge on the wrong diagnosis or wrong line of treatment or wrong operation or manifest negligence of having left any foreign substance in the body while operating or lack of skill or knowledge about the treatment being given by the doctor, we deem that token compensation of Rs. 25,000 which includes cost of litigation would meet the ends of justice. Payment shall be made within one month from the date of receipt of this order.

COMPLAINT is disposed of in aforesaid terms. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room. Complaint disposed of.