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Judgment
THIS complaint arises from the allegations of medical negligence against the O. Ps. inasmuch as while treating the complainant for acute pancreatitis, the O. P. damaged the jugular vein of the complainant which resulted in his lungs collapse and had to undergo a surgery, i. e. , thoractomy. The complainant has sought compensation of Rs. 19,60,507 by way of different components.
ALLEGATIONS of the complainant in brief are that on 27. 9. 1996 the complainant approached O. P. 1 with severe abdominal pain and was admitted in the hospital and treated by O. P. 2 who diagnosed the ailment as a case of pancreatitis on the basis of clinical, biochemical reports and ultrasound, CT Scan reports, etc. and treated the complainant with antibiotics which were administered intravenously. Ciprofloxacin, Metrogyl, Ranitidine, Fortwin and Phenargan were given to him I/v at regular intervals. The complainant was allowed to drink only small sips of water to keep throat wet. By 30. 9. 1996 the complainant could take only twelve teaspoons of water. On 3. 10. 1996 the complainant could not consume fluids orally due to abdominal pain, nausea and fear of vomiting. Fever was persisting upto 102 degree. Clinically the abdomen remained distended. That on 4. 10. 1996 the O. P. 1 conducted the procedure to insert a catheter namely central venous catheter through which a tube was inserted into the mouth and while conducting this procedure, the O. P. punctured the complainant''s jugular vein due to which there was loss of blood and the complainant had to be put on life saving device and they had to shift the complainant to Apollo Hospital for thoractomy surgery to remove the collection of blood in the body. Thoractomy was performed on 7. 10. 1996. According to the complainant, Haemothorax was a result of complications subsequent to placement of central venous catheter on 4. 10. 1996 and it was cured after the surgery. Complainant incurred expenses of Rs. 3,09,507 at Apollo Hospital and paid Rs. 60,000 to O. P. No. 1.
On the basis of the aforesaid allegations, the complainant has claimed Rs. 19,60,507 on different counts including compensation of Rs. 10 lacs for mental tension, agony, harassment and estimated loss in future due to reduced efficiency and physical handicap.
AS against this the defence version of the O. Ps. in brief is that the complainant was admitted in O. P. 1 hospital with acute pancreatitis on 27. 9. 1996 and the patient was unable to take food orally. Therefore, the only remedy was to give intra-venous (I/v) medicines at regular intervals. The medical records show that the complainant''s condition worsened on 13. 10. 1996 as he could not consume fluids orally and was nauseatic as well. Therefore, O. P. 2, who is Gastoenterologist decided that the only recourse was to have Central Venous Line Triple Lumen Catheter inserted in the central vein as it was not a normal case. The purpose of catheter is to provide liquid I/v antibiotics and nutritional foods. One of the inherent risks of insertion of catheter is that carotid artery which is close to the internal jugular vein can get punctured. This happens in 2-4% cases because of morbid anatomy. It is difficult to say which patient will come between this 2-4 per cent cases. One of the risks is Haemothora, i. e. , collection of blood, may occur in the lung cavity. It is inherent risk in this procedure. Haemothorax was treated and thoracotomy was conducted on 7. 10. 1996 and was successfully performed in Apollo Hospital. After 10. 10. 1996, when the ventilator was removed the patient was treated only for pancreatitis till 4. 11. 1996. The treatment was only for pacreatitis except for four days when this complication arose. Even after discharge on 4. 11. 1996 the patient was being treated by O. P. 2 and even on 30. 12. 1996 CAT Scan was done and it was found that pancreatitis was not resolved even then. Discharge summary of Apollo Hospital shows that even before the admission the patient had been suffering from Bronchospasm, Viral Hepatitis, Jaundice, etc. The complaint has been filed one year after the discharge from the hospital. These problems could have recurred during this one year also. The complainant has not produced any evidence that the ailments that he was suffering were the results of haemothorax. On the other hand the O. P. filed affidavit stating that haemothorax has a very small term effect and has no long terms effects. That insertion of catheter was again performed on 6. 10. 1996 in Apollo Hospital and this shows that the procedure was absolutely necessary and continued till his discharge from the hospital. When the patient, after being discharged on 4. 11. 1996, is treated by the same doctor on 30. 12. 1996, shows that pancreatitis treatment can possibly be not a case of negligence.
AS is apparent from the aforesaid conspectus of rival claims of the parties, the short controversy that calls for determination is whether there was any requirement of conducting Central Venous Catheter and while inserting the tube whether the O. P. punctured the complainant''s jugular vein due to which complications arose and for further treatment had to be shifted to Apollo Hospital. In this regard the learned Counsel for the complainant has placed reliance upon Annexure-C (COLLY) (Page 47) which is transfer summary prepared by O. P. No. 2 Dr. P. K. Bhargava. In the summary there is no mention at all that complainant was suffering very much from this problem that he could not even take a small sip of water to keep the throat wet and, therefore, it was with a view to extract money from the complainant that the aforesaid procedure was thrust upon the complainant. On the contrary Counsel for the O. P. has contended that Central Venous Catheter was absolutely indispensable being life saving procedure because of the severe and acute pancreatitis condition of the complainant and this can be judged from the fact that even in Apollo Hospital one Central Venous Catheter procedure was done on 6th October, 1997 successfully and, therefore, what was being achieved by O. P. No. 1 by resorting to this procedure was repeated even at Apollo Hospital.
THE Counsel further contended that in spite of having treated Haemothrox successfully on 19th October he was being treated only for pancreatitis till he was discharged on 4th November, 1996 and even after 4th November the complainant has been visiting the same Dr. i. e. , Dr. Bhargava till December 1996.
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 competent man exercising that particular art" (Charlesworth and Percy, ibid. . . . . , para 8. 02)
Bolam test was accepted with approval in the following judgments : (i) Sidway v. Bethlem Royal Hospital Governors and Others, (1985) 1 All. ER 643. (ii) Maynard v. West Midlands Regional Health Authority, (1985) 1 All. ER 635 (iii) Whitehouse v. Jordan and Anr. , (1980) 1 All. ER 650
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)=vi (2005) SLT 1=122 (2005) DLT 83 (SC)=iii (2005) CCR 9 (SC)= (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 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 simplictor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for clinical 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 upto 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 lowest mortality rate? (v) Whether the negligence was so manifest and demonstrative that no professional of 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?
Let us assume that the procedure of Central Venous Catheter procedure was absolutely necessary because of the condition of the complainant who could not consume died due to abdominal pain and fear of vomitting. But it is not understandable as to how this procedure caused such a severe complication that complainant had to be transferred to Apollo Hospital for Thoractomy surgery to remove collection of blood in the body for which the complainant had to incur huge medical expenses of Rs. 3,09,507. The only possible inference in this regard which we feel persuaded to draw is the negligence on the part of O. P. No. 1 while inserting a tube and while conducting this procedure that the jugular vein was punctured due to which there was loss of blood. It appears that the Catheter procedure might have been conducted by some lower staff or some junior doctor and in the process might have punctured the jugular vein and for such a deficiency only the Hospital i. e. , O. P. No. 1 alone can be held liable. In our view the complainant had to incur expenses of more than Rs. 3 lacs or so for such negligence. Merely because he was being treated for the pancreatitis at the Apollo Hospital after the surgery of thoractomy was successfully does not mean that the jugular vein was not punctured. Pancreatitis was the main problem the O. P. No. 1 conducted the procedure to insert a catheter because of which complainant''s jugular vein was punctured and huge expenses were incurred.
IT is common knowledge and practice that such kinds of procedure are left in the hands of junior doctors or some nursing staff. So far as the catheter procedure was concerned we find that it was absolutely necessary because of the condition of the complainant and the doctor who prescribed this procedure was highly qualified and well skilled in his profession and competent to deal with the problem. But as we have observed above it was only the negligence of some junior doctor or lower staff that complainant encountered such a problem which necessitated the thoractomy surgery.
EVEN if we accept the version of the O. P. No. 1 that the Catheter procedure was not done through mouth but through neck still we do not find any reason as to why and how the jugular vein not punctured, except that there was some kind of negligence on the part of the person who conducted this procedure. Counsel for the O. P. has relied upon medical literature (Ex. RW to Ex. RW 2/6 to the effect that while inserting the Catheter there is danger of 1. 9 to 3. 6 per cent incidence in which damage to the artery may be caused resulting in hameothorax which has occurred in the present case which is known complication of this procedure and, therefore, Anaesthetist who performed the procedure cannot be held guilty for negligence.
We are sorry that the plea or the defence of O. P. No. 1 cannot come to its rescue simply for the reason that the complainant did not fall within those categories of cases which 1. 9% to 3. 6 because of his general conditions as shown in the prescription being good and normal. Had there been no negligence in inserting catheter the question of jugular vein having been punctured did not arise.
ON the contrary the literature shows that the puncturing of artery can be avoided if ultra sound guidance is used. But in this case such ultra sound was not done. In the totality of the given facts and circumstances of the case and holding the O. P. No. 1 Hospital only liable for deficiency in service, we deem that lump sum compensation of Rs. 5 lacs shall meet the ends of justice as the complainant had actually incurred unnecessary expenses of more than 3 lacs or so.
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 requirement, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room. Complaint disposed of.