S.V. NONGRUM vs WOODLAND NURSING HOME

THE present complaint petition was filed by Mr. S.R. Nongrum (hereinafter referred to as the ''complainant'') wife of late D.L. Tharuh on behalf of all his heirs and legal representatives. During the pendency of the complaint, Mrs. S.R. Nongrum herself passed away and as such the case was proceeded with after bringing onto record the names of the legal representatives of the deceased complainant, all of whom, were her children, namely (1) Mrs. Soniya Vica Nongrum (Daughter), (2) Mr. Danny Nongrum (Son), (3) Mr. Ricky Nongrum (Son), (4) Mr. Frankie Nongrum (Son), (5) Mr. Anthony Nongrum (Son), (6) Miss Lakyntiew Nongrum (Daughter), and (7) Mr. Henry Ford Nongrum (Son). Complainant Nos. 6 and 7 who had then not attained maturity were represented by their elder brother, Mr. Frankie Nongrum.

THE complainant''s case is that on 29.7.1995 as Mr. Tharuh fell ill, his wife approached Dr. W. Kharshiing the O.P. No. 2, (hereinafter ''Dr. K'') who referred him to the care of O.P. No. 1 i.e., Woodlands Nursing Home (hereinafter ''WNH'') and to the treatment of O.P. No. 3, Dr. N.K. Nath (hereinafter ''Dr. N''). Mr. Tharuh was admitted to WNH with acute pain in the abdomen which was independently diagnosed as a case of Acute Pancreatitis on the date of admission by all the 3 doctors who attended him viz., the house physician of O.P. No. 1, Dr. K. and Dr. N. Although several tests and examinations, mostly blood tests, were carried out on the patient and he was treated by the doctors at WNH, the condition of the patient deteriorated during his stay. Despite this, Dr. N failed even to refer the case to a specialist and the complainant was kept in the dark about the seriousness of the patient''s condition. Ultimately Mr. Tharuh was shifted to down town Hospital, Guwahati (O.P. No. 4, hereinafter ''DTH'') on 6.8.1995 in a precarious condition where he unfortunately breathed his last on 8.8.1995.

According to the complainant, Sri Tharuh died on account of utter negligence, lack of attention, improper treatment and medication on the part of all the O.Ps. and has sought compensation to the tune of Rs. 18 lacs from them, jointly and severally.

O.P. Nos. 1 to 4 in their respective show-causes have denied all the allegations of negligence and lack of proper treatment and medication and have asserted that the best possible medical care was rendered by them without any lapse on their part and that the complaint is frivolous. Mr. Frankie Nongrum, son of Mrs. S.R. Nongrum and further one Mr. Rabibul Islam, a friend of late Tharuh, deposed as witnesses from the complainant''s side. Dr. K. and Dr. N. also appeared as witnesses to give their evidence while Dr. N. Choudhury and Dr. G.S. Ahmed were examined on behalf of O.P. No. 4. Further, during the hearing the following documents were exhibited: Ext. X-1 - Bed Head Ticket of late Tharuh maintained at WNH (O.P. No. 1) containing 11 sheets. Ext. X-2 - Copy of the bill dated 6.8.1995 for Rs. 11,699/- raised by WNH being the total charges for treatment of late Tharuh from 29.7.1995 to 6.8.1995. Ext. X-3 - Copy of the receipt dated 20.9.1995 for the above bill. Ext. ''A'' - Set containing admission sheet; O.P.D. Sheet; progress reports and doctors orders; Intake - output chart; Nurses'' record sheet; medicine record sheet; blood test reports; medical certificate of death - all relating to DTH (O.P. No. 4).

Besides, three expert witnesses, namely, Dr. D. Goswami, Dr. T. Das and Dr. M. Saikia, were also examined before the Commission, for whose expert medical evidence we record our appreciation.

THIS Commission gave several opportunities to both the sides to settle the matter amicably outside the Commission as a result of which even disposal of the case was partly delayed. However as the parties failed to arrive at a settlement, we have heard at length the learned Counsels both for the complainant as well as for the opposite parties. We have deeply studied the depositions of all the witnesses including those of the expert witnesses. We have also meticulously gone through all the exhibited documents as listed above. Both sides have submitted their written arguments which too we have considered and applied our minds to. In our view, for a fair and just determination of the case, the complaint has to be seen in two separate parts and periods. (i) between 29.7.1995 and 6.8.1995 when the deceased was at WNH under the treatment of Dr. N. and Dr. K. and (ii) between 6.8.1995 and 8.8.1995 when he was at DTH. In respect of the first period between 29.7.1995 and 6.8.1995, the substance of the statements and arguments of the complainant appears to be that although on or about 3.8.1995 the condition of late Tharuh started deteriorating, O.P. Nos. 1, 2 and 3 neither took necessary steps to call in a specialist doctor nor informed the patient''s relatives about the seriousness of his condition nor advised them to shift the patient to another hospital where dialysis facilities were available although, by then, it became clear that dialysis was imperative for the patients welfare and no dialysis facilities were available at WNH. According to the complainant they were advised by O.P. Nos. 1, 2 and 3 to shift the patient for dialysis only on 6.8.1995 which they accordingly did, but by that time it was too late and, in this view of the matter, the death of late Tharuh occurred owing to the negligence of O.P. Nos. 1, 2 and 3.

THE common stand of O.P. Nos. 1, 2 and 3 is that they rendered the best possible treatment as per their diagnosis of acute Pancreatitis (Alcohol-induced) and took simultaneous steps to prevent and check other co-related eventualities which were likely to arise due to the physical state of the patient, including renal failure, liver malfunction, etc. However, in spite of necessary drugs being administered, the blood urea of the patient which was normal on 30.7.1995 was tested to be 373 MG/DL on 3.8.1995 which was grossly above the normal rate and, therefore, on 3.8.1995 itself O.P. No. 3 prescribed that the patient be put on dialysis for which he advised the patient as well as the complainant to go to GMC Nephrology Unit at Guwahati but they did not go until 6.8.196. In order to substantiate their statement, they also referred to the endorsement made on 3.8.1995 at page 2 of the Bed Head Ticket (Ext. X-1B) maintained by WNH stating "Blood urea very high. Adv. dialysis and party is informed accordingly," written in the hand of Dr. N.

IN contrast, the complainant''s stand as stated above is that she was never advised to shift the patient for dialysis before 6.8.1995 and further that the endorsement made in the bed head ticket (Ext. X-1) was an afterthought on the part of O.P. Nos. 1, 2 and 3 in order to cover up their negligence and this was well possible because the ticket was all along in the possession of O.P. No. 1. We have given the matter deep thought as regards the aforesaid endorsement said to have been made on 3.8.1995. We have examined the related documents thoroughly, particularly Ext. X-1B. No doubt this endorsement advising that the patient be put on dialysis on record. However, the question is was it made on 3.8.1995 as stated by Dr. N. in his statement under oath (Quote-"Ext. X-1B is an endorsement made in the ticket by me. I made this endorsement on 3rd of August. This endorsement indicates that on 3rd blood urea was very high and I advised him dialysis and the party was informed accordingly.") or was it inserted later as an afterthought as alleged by the complainant? We are afraid that in the absence of any definitive proof to the contrary brought before us by the complainant we cannot reach any definitive finding that the endorsement was indeed made a later dated as suggested by the complainant and we have to give the benefit of the doubt to Dr. N. However, it must be said here that it would have been prudent and expected of O.P. No. 3 to have repeated his advice to the patient and his relatives to shift the patient for dialysis. Whether this was done or not remains in the realm of conjecture as the arguments of both sides have centred around the above entry made on 3.8.1995.

As regards the contention of the complainant that by not referring the case to a specialist, O.P. Nos. 1, 2 and 3 have acted negligently, what needs to be firstly determined is what was the true nature of his disease and secondly whether the O.Ps. were competent enough to treat that disease or needed the assistance of a specialist. With regard to first question, we find from the entries made both by the Attending Physician of WNH as well as by Dr. K. in the Bed Head Ticket maintained by WNH (Ext. X-1) that he was diagnosed upon admission as suffering from Acute Pancreatitis. This was the diagnosis made by Dr. N. too, as per his evidence. The Medical Certificate of death issued by DTH also reveals that late Tharuh was admitted with Acute Alcoholic Pancreatitis and Azotemia and Gastroenteritis. Moreover, there is no contrary evidence to show that the diagnosis made by the O.Ps. was wrong nor is this the case of the complainant. As such we are satisfied that late Tharuh was correctly diagnosed as suffering from Acute Alcoholic Pancreatitis.

NOW, we are to see whether the O.Ps. were negligent in not calling in a specialist. Dr. T. Das, expert witness has stated that "Physician is fully competent to look after the cases of pancreatitis. But whenever possible I would take the help of Gastro Enterologist." With this uncontroverted expert opinion that a physician is fully competent to look after a case of pancreatitis, which indeed was the ailment of the patient, on record, we are unable to hold that in the confirmed case of Acute Pancreatitis O.P. Nos. 1, 2 or 3 acted negligently by not referring the case to a specialist. It would perhaps have been prudent for them to do so as suggested by the expert witness but failure on this count cannot lead to a finding of negligence on the part of O.P. Nos. 1, 2 and 3. Now coming to the allegation of improper treatment and medication on the part of the O.Ps., we have already found above that the patient was rightly diagnosed as suffering from Acute Pancreatitis. The question to be decided is, was the patient given the correct treatment for the malady by the O.Ps.?

AS regards the course of treatment for Acute Pancreatitis the expert opinion of Dr. D. Goswami which is on record is that, "For Acute Pancreatitis thumb rules for management is (No. 1) Nil by mouth (2) Fluid replacement as per need. Antibiotic may be administered or may not be. In such cases antibiotic should not be administered orally, it may be injected. It is the contention of O.P. Nos. 1, 2 and 3 that the course of treatment followed by them was quite proper and in conformity with the expert opinion of Dr. Goswami. No serious dispute has been raised in this respect by the complainant and we too are satisfied upon perusal of the Bed Head Ticket (Ext. X-1) and its annexures viz., TPR Chart and Intake-output Chart that the course of treatment adopted by the O.Ps. was broadly in line with that suggested by Dr. Goswami. In view of the above we are of the opinion that no negligence can be attributed to O.P. Nos. 1, 2 and 3 in respect of the course of the treatment undertaken by them in the case. The complainant has also alleged that even though the condition of late Tharuh was stated to be serious he was not allowed to be moved out by O.P. No. 3 till each and every bill of his and that of O.P. No. 1 was cleared. The evidence on record however does not support this allegation. It is clear from Ext. X-2 that a Bill dated 6.8.1995 for Rs. 11,699/- was drawn in the name of Sri D.L. Tharuh by WNH. However Ext. X-3 which is the office copy of the receipt issued by WNH acknowledging the payment of the due sum of Rs. 11,699/- is dated 20.9.1995. We thus find that the patient was in fact released on 6.8.1995 by the O.Ps. even without payment of the medical bill which was paid only on 20.9.1995 and thus the statement of the complainant on this count is not correct.

NOW coming to the allegations relating to deficiency in service on the part of DTH for the second period from 6.8.1995 to 8.8.1995, we find that there is hardly any specific averments in the complaint petition against DTH (O.P. No. 4) in this regard. One solitary line in paragraph 13 of the petition states, "Even in the Hospital of respondent (read : O.P.) No. 4 not much care was taken by the staff and doctors attending". The only other averments against DTH (O.P. No. 4) is contained in para 15 where it is stated, "Sri Tharuh died on account of lack of proper medication, negligence at the behest of respondent (read: O.P.) Nos. 1 to 4. If proper medication had been given at proper time, Sri Tharuh could have survived."

IN our opinion the aforementioned charges against DTH are very vague and indefinite; moreover, the complainant has made no effort to prove any of them in her evidence. Further these are denied by DTH in their show cause and, according to them, on the own admission of the complainant, late Tharuh was in a precarious condition when admitted into DTH and yet he was given all the care and treatment that was due to him and every endeavour was made for the survival of the patient - hence there was no question of any negligence or deficiency in service on their part. DTH also tendered in evidence the entire medical records maintained by them relating to the patient in question (Ext.-A) to buttress their stand. Although the complainant filed a rejoinder to the show cause of O.P. Nos. 1 to 3, no rejoinder was filed in response to the show, cause reply of O.P. No. 4 nor were the medical records exhibited by DTH controverted by the complainant. It is only in the written argument filed on behalf of the complainant at the conclusion of the hearing that it has been stated that dialysis is on late Tharuh started only at 3.30 p.m. on 7.8.1995 that is 20 hours after his admission which is an act of negligence on the part of DTH which not only aggravated but also hastened the end to the life of late Tharuh. At this very late stage the O.P. No. 4 had no opportunity to rebut this allegation and as such we do not think that it would be just and fair to now entertain this allegation which is contained only in the written argument submitted by the learned Counsel for the complainant at the concluding stages of the hearing.

Further, no doubt, medical institutions such as Hospitals and Nursing Homes can be held primarily liable when there is deficiency in services provided by them by a breach of their own duties such as failure to supply the equipment necessary for the treatment of patient, etc. Hospitals and Nursing Homes would also be vicariously liable if the doctors, whether on their rolls or consultants, or the staff, are negligent or deficient in their services. However, to hold them to be so vicariously liable, it is imperative for the complainant to implead the doctors against whom negligence is alleged as parties to the complaint so that they may get an opportunity to defend themselves [See Basant Seth and Another v. Regency Hospital Ltd., III (2002) CPJ 407 (NC)=2000 (2) CPR 62 (NC)].

IN the instant case, however, no doctor or staff of DTH has been impleaded as a party which rules out at the threshold any vicarious liability on their part. The allegation of delay in commencing the dialysis is, in our opinion, not one that relates to the primary duties of DTH. IN view of all the above, we are unable to hold that DTH was negligent in the services provided by it to the patient. Lastly, we are required to look into the allegation made by the complainant in a general manner regarding the utter negligence in the conduct of all the four O.Ps, which is said to have led to his demise. Before entering into the merits of this allegation, it would be beneficial to briefly notice the settled legal position with regard to the duties and obligations of a medical practitioner towards his patients, the true tests for establishing medical negligence and the burden and standard of proof, therefor, insofar as is necessary for a fair decision in this case.

THE Apex Court in its judgment reported in AIR 1969 SC 128, Dr. Laxman Balkrishan Joshi v. Dr. Trimbak Bapu Godbole and Another, held in para 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". In Nathan''s Medical Negligence, 1957 Edition, the following observation of Lord President Clyde in Hunter v. Hanley, (1955) SLT 213, is relied upon at page 21: "The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care."

It is stated by Nathan in this book at page 43: "No human being is infallible and in the present state of science, even the most eminent specialist may be at fault in detecting the true nature of a diseased condition. A practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession."

AT page 104 of this book, Nathan has further observed: "The burden of proving negligence rests upon the person who asserts it. In medical negligence cases, therefore, it is for the patient to establish his claim against the medical man and not for the medical man to prove that he acted with sufficient care and skill. It is by means of evidence of course that the patient will seek to and indeed must, establish his claim; but the evidence he adduces may take several different forms."

LORD Denning M.R. pointed out in Hucks v. Cole, 1968 (118) New Law Journal 469, as follows: "A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. It affected his professional status and repudiation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best skill in the world, things sometimes went amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserving of censure or inexcusable."

As regards the burden of proof, at page 580 of Charlesworth on Negligence, it is stated that: "In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it. Hence it is for the plaintiff to give evidence of the facts on which he bases his claim to the redress which he seeks from the Court."

In I (1999) CPJ 13 (NC), Calcutta Medical Research Institute v. Bimalesh Chatterjee and Others, it was held that the onus of proving negligence and resultant deficiency in service was clearly on the complainant. Further, in III (1999) CPJ 9 (NC) , Kanhaiya Kumar Singh v. Park Medicare and Research Centre, it was held that- "Negligence has to be established and cannot be presumed". both these decisions of the National Commission related to medical negligence.

DR. H.S. Mehta in his Medical Law and Ethics in India, 1963 Edition, at page 209 observes: "The value of expert evidence is obvious in a case where negligence is alleged against a medical man or a medical institution. It may be remembered that the cardinal test for determining the question of medical negligence is: whether a reasonably competent medical man would have acted in more or less the same manner in which the medical man against whom negligence is alleged had acted. It is, therefore, natural that Courts of Law appreciate the assistance of expert medical evidence to ascertain this point."

It is inarguably clear from these authorities that, in order to decide whether negligence is established in any particular case, the alleged act or omission or course of conduct complained of, must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts it. There is no question of warranty, undertaking or perfection of a skill. The standard of care and skill to satisfy the duty is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill.

WHATEVER we have stated above in relation to doctors and medical practitioners is, in our opinion, equally and similarly applicable to medical institutions such as Nursing Homes and Hospitals for determining whether or not they are negligent with regard to the respective services rendered by them and whether they are primarily or vicariously liable as discussed above, unless they fall within the exceptions laid down in III (1995) CPJ 1 (SC)=AIR 1996 SC 550, Indian Medical Association v. V.P. Shantha. Viewed against the backdrop of this settled position of law as discussed in the foregoing paragraphs and in the facts and circumstances of the case, as revealed by the evidence before us and in view of the discussions made above, we are of the opinion that the complainant has not been able to prove any negligence against any of the opposite parties by way of any evidence including that of a medical expert or from any medical literature to show that what the O.Ps. did was not expected of doctors of average skill or that they did not do what was expected of doctors possessing ordinary skill, acting with reasonable care. Thus, although our sympathies are with the complainant''s legal representatives in their bereavement, as we have reached the finding that no cause of medical negligence has been made out by the complainant against the opposite parties, this complaint is, therefore, dismissed. No costs.

HOWEVER, before parting with the case we would add here that, as mentioned by us earlier, several opportunities were given to the parties to settle the matter amicably amongst themselves. Although no final settlement could be reached as a result of which hearing of this case proceeded to its logical conclusion, learned Counsel for O.P. Nos. 1, 2 and 3 expressed before this Commission on behalf of their clients that while they categorically denied any negligence on their part in handling the case, they too felt saddened at the demise of late Tharuh, particularly as his wife - the complainant, Smt. S.R. Nongrum - too passed away soon thereafter, leaving behind their seven children. O.P. Nos. 1, 2 and 3, without approaching the matter in the spirit of litigants in an adversary action and purely on human consideration and with deepest regard to their sentiments jointly offered to pay a total sum of Rs. 50,000/- to the legal representatives of late Tharuh. Similarly, O.P. No. 4 while also denying any negligence on its part offered to give a suitable job in its hospital to any one of the legal representatives on record.

WE take the O.Ps. up on their offer and direct that O.P. Nos. 1, 2 and 3 shall jointly deposit a sum of Rs. 50,000/- (Rupees fifty thousand only) in the Registry of this Commission within 2 weeks of receipt of a copy of this order and each of the seven legal representatives of late D.L. Tharuh namely, (1) Mrs. Soniya Vica Nongrum, daughter; (2) Mr. Danny Nongrum, son; (3) Mr. Ricky Nongrum, son; (4) Mr. Frankie Nongrum, son; (5) Mr. Anthony Nongrum, son; (6) Miss Lakyntiew Nongrum, daughter; and (7) Mr. Henry Ford Nongrum, son, will be at liberty to withdraw 1/7th of this sum each upon appearing in person and being identified by any Advocate and upon furnishing proper individual receipts therefor. We further direct that O.P. No. 4 shall within 2 weeks of receipt of a copy of this order furnish to the registry of this Commission a list of the jobs in various grades being offered by them indicating the required qualifications and pay scale. The Registry shall immediately send copies of the list to all the aforesaid seven legal representatives of late D.L. Tharuh, individually, whereupon they would be at liberty to send in their applications for jobs of their choice directly to DTH but within 3 weeks of despatch of the list from the Registry. DTH shall select one from amongst these applicants, after conducting interviews if so required, and issue the appointment letter within 4 weeks of receipt of the applications. Complaint dismissed.