SOM NATH vs Union of India

-ALLEGING negligence, carelessness and deficiency in service on the part of the O. Ps. , the complainant has claimed compensation of Rs. 10. 00 lacs on account of various operations, he has become completely a disabled person.

FACTS, which gave rise to this complaint, in brief, are that the complainant in the year 1986 suddenly developed chest pain. He approached AIIMS for by-pass heart surgery. He was admitted on 3. 11. 1998 for operation. His operation was conducted by Dr. M. L. Sharma and he remained admitted in AIIMS from 3. 11. 1988 to 13. 11. 1988. After the said operation, the complainant developed side effect as his left foot was totally swollen and the chest pain increased and the condition became worst. The complainant was again admitted in AIIMS on 15. 7. 1992 and remained till 21. 7. 1992. The condition of the complainant did not improve and again on 24. 8. 1994, the complainant was admitted in AIIMS and remained admitted till 27. 8. 1994. The complainant approached Legal Aid Cell in Patiala House for seeking help for agony which was caused to him due to the operation. The complainant was sent to G. B. Pant Hospital again. He was again examined by Dr. U. A. Kaul, who had given a wrong report in the year 1988 based on which the unsuccessful operation was carried on by Dr. M. L. Sharma. According to the complainant O. Ps. were very deficient in services and due to negligence, carelessness his life has become a virtual hell. Due to the said operation, the complainant has become totally disable to undertake any kind of work.

Only O. P. Nos. 2 and 5 have filed reply of the complaint. O. P. Nos. 1, 3 and 4 were proceeded ex parte, as no reply was filed by them.

O. P. No. 2 denied the allegations made in the complaint by raising the following pleas: (i) That the present complaint, as filed, is barred by limitation. That as per own showing the alleged surgery had taken place in November, 1988 and the present complaint was filed in the year 1997. (ii) That the surgery, which took place at AIIMS , was based on the incorrect report of GB Pant Hospital. (iii) That there is no backing of medical jurisprudence rather the contents of the complaint in itself prove that the procedure carried in November 1988 was successful. Tests were also conducted in 1989 itself which also show that the procedure carried out in November 1988 was properly done and successful.

O. P. No. 5 also denied any negligence in the treatment of the complainant and came up with the following version : (i) That the complainant was examined as a OPD patient in 1987 by the answering O. P. and was advised coronary angiogram for diagnostic and medical treatment. (ii) That the coronary angiogram of the complainant was done by O. P.-Dr. U. A. Kaul on 5. 2. 1988 a G. B. Pant Hospital. (iii) That the angiography revealed significant disease. It showed disease of 90% in right coronary artery, 75% in O. M. I. and 50% in distal LAD of the complainant. He was adjudged class III symptomatic. He was advised coronary artery bypass grafting (CABG ). (iv) That the patient did not come to G. B. Pant, New Delhi for advice or treatment. The medical treatment was given to the complainant by the doctors in AIIMS. (v) That in September 1996, a Board of two cardiologists and one Cardiotherocic Surgeon consisting of the answering O. P. , Dr. K. K. Sethi, Professor of Cardiology, G. B. Pant Hospital, New Delhi and Dr. Madhuri Nigam, Professor of Cardiotherocic Surgery, G. B. Pant Hospital, New Delhi was constituted by the Director, G. B. Pant Hospital, New Delhi to examine the patient to determine the veracity of his alleged complaint to the Delhi Legal Aid and Advice Board at the request of the Legal Aid Board, Delhi. On 14. 10. 1996, a report was submitted by the Board to the Medical Superintendent, G. B. Pant Hospital, New Delhi which exonerated the Doctors from the charge of negligence. (vi) That it is wrong to say that the report of the Medical Board dated 14. 10. 1996, of which the answering O. P. was a member, is biased.

AT the outset report dated 14. 10. 1996 of the Medical Board needs to be reproduced and is as under : "the patient had inferior wall Myocardial infraction in 1987, and was attending the outpatient department of AIIMS, for disabling chest pain. Coronary angiogram was done and Cabg was DONE in 1988. He has alleged in his letter that the operation was not done properly, and a needle was left in the abdomen. A swelling in left lower limb had been noted at AIIMS following the surgery, thought to be because of venous insufficiency, as the long saphenous vein had been removed for the bypass. On examination at G. B. Pant Hospital on 28. 9. 1996, he is an obese man with pulse rate of 70/min. , B. P. 130/80 mm. Hg. No signs of CHF, heart sounds normal, no murmur, lungs clear, odema of (L) Lower limb present. (Venous insuficiency ). ECG : Old infaraction Myocardial infaraction. X-ray chest : Normal heart size, lungs clear. X-ray abdomen : Normal. No abnormal radio opaque shadow seen. Trademill test : Mildly positive of Ischaemia. Conclusion cad; d Infaraction Myocardial Infaraction. CABG done at AIIMS 1988. Moderate Effort Tolerance. Mildly Positive treadmill test. Venous Insufficiency of Left Lower Limb. No evidence of any abnormal Radio opaque. Shadow in the abdomen. "

Admittedly Dr. U. A. Kaul was one of the members of the Medical Examination Board and it was he who was consulted and who recommended for bypass surgery though the bypass surgery was conducted by Dr. M. L. Sharma, O. P. No. 3 As is apparent the recommendations of Dr. U. A. Kaul are being brought into question as according to the complainant the report given by Dr. A. K. Kaul was wrong and as a result the operation carried out by Dr. M. L. Sharma was unsuccessful.

IN this regard learned Counsel for the complainant relied upon the reply filed by Dr. U. A. Kaul in his affidavit. The relevant para which the Counsel referred and relied upon is Para 5, which is as to the following effect : "5. In September, 1996 a Board of two Cardiologists and one Cardiotherocic Surgeon consisting of Dr. K. K. Set, Prof. of Cardiology, G. B. Pant Hospital, New Delhi and Dr. Madhuri Nigam, Prof. of Cardio Therocic Surgery, G. B. Pant Hospital, New Delhi was constituted by the Director, Govind Ballabh Pant Hospital, New Delhi to examine the patient to determine the veracity of his alleged complaint to the Delhi Legal Aid and Advice Board at the request of the Legal Aid Board, Delhi. The Medical Board of which the answering O. P. was a Member examined the complainant on 28. 9. 1996 in respect of the general state of his cardiac condition and specifically in respect of the alleged complaint that he had filed to the Delhi Legal Aid and Advice Board, New Delhi against AIIMS, New Delhi. Consequently on 14. 10. 1996 a report was submitted by the Board to the Medical Supdt. , G. B. Pant Hospital, New Delhi which was duly signed by all the members of the Board. The said report was forwarded by the Medical Superintendent, G. B. Pant Hospital, New Delhi to the Delhi Legal Aid Board on 18. 10. 1996. A bare perusal of the report of the Board shows that the alleged complaint of the complainant to the Delhi Legal Aid and Advice Board, New Delhi was without any basis.

MERELY because Dr. U. A. Kaul happens to be a Member of the Board of Cardiologists to whom the matter was referred for opinion does not mean that the report itself is vitiated. Other three Doctors were independent and were from G. B. Pant Hospital and not from AIIMS and were Doctors of high repute and well qualified. To say that those Doctors also gave this report under the influence of Dr. Kaul would be undermining their professional integrity as the report is based upon the documentary evidence and material produced before them, and can be subjected to medical scrutiny through the international medical literature. So far as operating Doctor Dr. M. L. Sharma is concerned, no material or allegation of negligence has been brought to our notice nor is there any medical literature nor any other documentary evidence or prescriptions from the operation notes showing any deficiency or any negligence on his part. Dr. Sharma was no doubt a Specialist and skilled person in treating the disease and in conducting the operation the complainant was admitted for. However, at the most the allegation of the complainant that the O. P. Hospital should have ordered for independent tests to be conducted at their hospital before carrying out the operation upon the complainant and should not have suo motu relied upon the report of Dr. Kaul where the complainant had gone for consultation has same force. Had this test been conducted by O. P.-AIIMS exact operation would have been carried out and side effects, if any, of the wrong report of Dr. U. A. Kaul would have been avoided.

It is not understandable as to why patient should suffer such a disability had there been a correct report leading to the correct operation. He is not in a position to carry out any kind of work and is totally paralysed after having undergone byepass surgery, which should have rather provides a comfort and solace to him.

THERE are varied kinds of deficiencies in service so far as medical profession and Govt. Hospitals and nursing homes are concerned. There can be administrative deficiency. For instance hospital may be arranged a medical apparatus in time to save the life of the patient or for instance the patient may require ambulance to move to some other hospital and may not have arrangement and those Doctors whose need may arise during operation causing such complication for which operating Doctor may not be competent Doctor to attend. There may be unhygienic sanitary condition; there may be lack of administrative efficiency. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolam''s case reported in (1957) 2 All. ER 118, 121 D-F still hold the field. This test, in popular parlance is known as ''bolam Test'' after the name of the petitioner. In short the test is as under: "[where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. 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 compentet man exercising that particular art" (Charles Worth and Percy, lbid. , para 8. 02)

BOLAM test was accepted with approval in the following judgments: (i) Sidway v. Bethlem Royal Hospital Governors and Others, 643 All England Law Reports (1985) 1 All. ER. (ii) Maynard v. West Midlands Regional Health Authority, 635 All England Law Reports (1985) 1 All. ER. (iii) Whitehouse v. Jordan and Another, 650 All England Law Reports (1980) 1 All. ER. Presumably because of persuasive value of Bolam''s case that our own Supreme Court has in case after case and particularly in Indian Medical Association v. V. P. Shantha and Ors. , III (1995) CPJ 1 (SC)=i (1996) CLT 81 (SC)= (1995) 6 SCC 651 wherein Bolam''s case was also discussed has adopted this test as guidelines for the Courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is 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. Observations of Supreme Court are as under: " (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam''s case, WLR at p. 586 holds good in its applicability in India. "

While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the the Supreme Court are- (i) That the guilty Doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. (ii) Hazard or the risk taken by the Doctor should be of such a nature that injury which resulted was most likely imminent.

ALTHOUGH, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation account of both kinds of negligence. The test for holding the medical professional 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) ).

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 practises? (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?

In our view whenever a patient of such serious ailment goes to a nursing home or hospital for treatment the minimum expectation of the Doctor working at the hospital or the nursing home is to subject him to fresh tests which are required and not suddenly rely upon the test reports of other hospital or some outside laboratory. Instances are not rare where there have been contradictory and extremely diametrically reports about tests conducted by these laboratories or Doctors. Though every day allegations are being made against the Doctors advising the patient to get test from a particular laboratory for their own benefit but this allegation cannot be taken as sweeping and general allegation as to the Doctors who are professionally very sound. Most of the time they ask the patient to get test report from highly reputed laboratories.

However, the learned Counsel representing AIIMS contends that patient approached AIIMS in November 1988 and all tests were conducted prior to the surgery. As alleged by the complainant the O. P. never depends upon the tests or report of other hospital. Even in normal circumstances AIIMS conducts its own tests. Therefore the above contention is wrong.

EVEN if the aforesaid contention of the learned Counsel is accepted we fail to understand as to why the patient suffered such extreme side effects after having undergone bypass surgery by the Doctor of the AIIMS. The explanation of the Counsel for AIIMS in this regard is that in 1989 the complainant again approached AIIMS and again tests were conducted at AIIMS which also show that the procedure carried out in November 1988 was properly done and was successful. Thereafter he approached AIIMS in 1992 after about four years of the procedure carried out at AIIMS in November 1988 with the complaint that he has been suffering from Oedema Left Lower Limb and he was admitted for a week and was advised elevation of limb. The disease Odema can be caused for various other reasons and the same is also evident from the report submitted by the medical board that the complainant is an obese man with pulse rate of 70/min and B. P. was 130/80 MM HG and no signs of CHF, heart sounds normal, nor murmur, lungs clear, no evidence of any abnormal Radio Opaque shadow in the abdomen or chest.

IN our view the limited deficiency on the part of AIIMS is that the patient was not subjected to the required tests otherwise such a complication should not have been arisen after four years of operation. In our view for this limited deficiency and there being no other deficiency on the part of AIIMS as Dr. U. A. Kaul gave a wrong report a lump sum compensation of Rs. 50,000 would meet the ends of justice. This amount shall be paid by OP No. 2-AIIMS only as we have held that wherever there is negligence on the part of the Doctors of Government Hospital, Government Hospital alone is liable because the Doctors are their employees and they do not have direct contract with the consumer nor do they receive consideration from the consumer case-wise for the treatment. They are getting salary on monthly basis and conduct large number of operation every month. 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.