Jagat Narain Choube vs ACHAL SEPAHA

THIS First Appeal has been filed by Jagat Narain Choube (hereinafter referred to as the ''Appellant '') and two others being aggrieved by the order of the State Consumer Disputes Redressal Commission, Madhya Pradesh (hereinafter referred to as the ''State Commission '') which dismissed his complaint against Dr. Achal Sepaha and Choithram Hospital and Research Centre, Indore (hereinafter referred to as "Respondent Nos. l and 2 " respectively).

IN his complaint before the State Commission, Appellant had contended that his wife late Smt.Vimal Chaube (hereinafter referred to as the ''patient '') who was undergoing dialysis at Gandhi Medical College, Bhopal had been advised kidney transplantation to be done at Chennai but prior to this procedure, he was told that several tests were required such as HLA typing, tissue cross matching etc. for which he was referred to Respondent No. 2/Hospital which had these facilities. Respondent No. 1. who was a consultant at Respondent No. 2/Hospital had, after examining various medical reports advised that the kidney transplantation could be done at Respondent No. 2/Hospital itself and patient was not required to go to Chennai for the same. However, as per the statutory provisions pertaining to organ transplants only a relative could donate the kidney. Since the blood group of the patient matched only to that of her son who was too young to donate his kidney, Respondent No. l advised that the patient could be cured through regular treatment and may not require either dialysis or kidney transplantation. She was accordingly admitted to Respondent No. 2/hospital. According to Appellant, gross deficiency and negligence in the treatment of the patient by Respondents led to her premature and avoidable death. It was specifically stated that she was given blood transfusion with stale blood when actually it was not required since her hemoglobin count was over 11. There was also negligence in conducting the dialysis on several occasions as it was done without checking her blood pressure either before or during dialysis and on at least two occasions her condition seriously deteriorated with the blood pressure plummeting. On one occasion an important medicine Hepril which was advised to be withheld was in fact administered. On 5.9.1996, it was found that the patient had contracted Hepatitis B infection obviously because of tainted blood. Patient ''s leucocytes count also indicated her having contracted an infection because of poor hygiene particularly in the dialysis room. On 7.9.1996, during the course of another dialysis session which was undertaken even though the patient was underweight with low blood pressure where dialysis is contra-indicated, she suffered a cardiac arrest and had to be shifted to ICCU where she was attended to only by paramedical staff. Respondent No. l did not turn-up despite telephonic requests to examine the patient. The Intensive Cardiac Care Unit did not have the provision for uninterrupted electric supply because of which the ventilator often had to shut down. The patient died on 11.9.1996 because of these deficiencies and medical negligence. According to the death certificate three reasons were given for her death (i) Fluid overload; (ii) Cardio Respiratory Arrest and (iii) DM. On the other hand, as per the medical history sheet of the patient, Respondent had recorded that her chest was clear just two hours before her death and the cause of cardio respiratory arrest was also not given. There was apparent medical negligence and deficiency in service in the treatment of the patient and Respondents failed to control either her diabetes or her hypertension and her kidney ailment actually got aggravated during her stay in Respondent No. 2/Hospital. Following her death, Appellant filed an FIR under Section 304A of IPC against the Respondents and during the course of the investigation the Joint Director/Professor Medico Legal Institute, MP clearly indicated that the Respondents were guilty of medical negligence and deficiency in service. Appellant also filed a complaint before the State Commission on grounds of medical negligence and deficiency in service which resulted in the patient ''s death thus prematurely depriving the Appellant of a companion in his old age and his children the love and affection of their mother. Due to the shock of patient ''s death, Appellant himself suffered severe cardiac problems and was advised immediate heart surgery. It was, therefore, requested that the State Commission may direct the Respondents to pay Appellant, Rs. 16,02,599 towards expenditure, medical expenses incurred as also compensation for mental agony and tension including litigation costs. Respondents on being served filed written submissions in which they denied the allegations made in the complaint. The dialysis which was necessary to save patient ''s life since she was a case of chronic renal failure as also other ailments was conducted with utmost care and responsibility and this is confirmed by the hospital records which clearly indicated that the treatment given to her was as per standard procedure by highly qualified medical specialists and paramedical staff. It was specifically denied that there was any negligence during the dialysis. Further, it was denied that tainted blood was transfused in the patient. The plasma was given only after it was tested. Also the incubation period for Hepatitis B was much longer than the stay of the patient in the Respondent No. 2/Hospital. Therefore, it may have been contracted in some other institution prior to her admission in Respondent No. 2/Hospital. Further, as per the statutory provisions pertaining to blood transfusion, plasma can be stored for one year. Following the blood transfusion in fact the patient ''s condition improved.

WHEN the case came up for hearing before the State Commission while citing various instances of medical negligence, Appellant also stated that Respondent No. l was not competent to treat serious medical cases relating to the kidneys because he did not have the necessary qualifications in Nephrology since he had an MD in Medicine. The State Commission after hearing both parties and on the basis of evidence produced before it dismissed the complaint by inter alia observing as under: "From a perusal of the records, it is well established that the complainant No. l ''s wife was the patient of Diabetes Mellitus with Chronic Renal Failure with Pleural effusion and when she came to Choithram Hospital, her case was that kidney was totally non-functional. Record shows that only 60 ml urine passed during 24 hours. In such a case, where at the end stage renal disease has developed, there was necessity of dialysis thrice in a week. The Opposite Party has submitted that in the circumstances dialysis was necessary but dialysis has its own effect. Even in Massry and Glassock ''s Textbook of Nephrology it is clear that the death may occur during dialysis in cardiovascular events. We, therefore, find that the Opposite Party No. 1 Dr. Achal Sepaha has diagnosed, treated and had taken proper care when the patient was admitted in the hospital and for that the Opposite Parties cannot be held negligent in any way. Here it will not be out of context to mention that in the complaint, the complainant No. 1 has tried to place himself as an expert by stating that such and such medicines should not have been given, administered or dialysis should not have been attempted which is not supported by any expert or clinical side. "

REGARDING the Appellant ''s contention that Respondent No. l did not have the necessary qualifications in the field of Nephrology, the State Commission dismissed this allegation by observing that Respondent No. l who was an MD in Medicine and had worked in Jaslok Hospital, Mumbai as Senior Registrar in the Department of Nephrology and had also undergone advanced training on two occasions abroad and therefore, he was fully competent and qualified to take up the medical treatment of the patient. Hence, the present First Appeal. Learned Counsel for both parties made oral submissions at great length. Counsel for Appellant contended that the State Commission erred in concluding that there was no medical negligence despite the fact that there was sufficient and credible evidence on record to clearly prove otherwise. Specifically, it was stated that the claim of medical negligence was based on two important factors; (i) Dr. Achal Sepaha, Respondent No. l despite not having the qualifications as a Nephrologist undertook to treat the patient in what was a complex medical case and (ii) the documents including the case history of the patient ''s treatment right from the time of admission and at the operation theatre as also in the ICCU showed gross mismanagement and negligence. So far as the lack of qualifications was concerned, Counsel for Appellant pointed out that this was apparent from the fact that Respondent No. l only had an MD in Medicine and no formal post-graduate qualification in Nephrology. When the case history was referred by this Commission to All India Institute of Medical Sciences (AIIMS), New Delhi which is a premier medical institution in this country, the Medical Board of doctors from that Institute which was headed by Dr. S.K. Agarwal, presently Professor and Head of the Department of Nephrology, had concluded that in their opinion "the Medical Board believes Dr. Achal Sepaha does not have a qualification to claim himself a Nephrologist. Membership of a Society in Medical Board ''s opinion is no proof of qualification ". Counsel for Appellant brought to our notice the judgments of Hon ''ble Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors., III (2009) CPJ 17 (SC)=VI (2009) SLT 164=III (2009) CCR 558 (SC)=(2009) 9 SCC 221, wherein it has been observed as follows: "Even in the matter of determining the deficiency in medical service, it is now well settled that if represen-tation is made by a doctor that he is a specialist and ultimately it turns out that he is not, deficiency in medical services would be presumed. " Further, the Hon ''ble Supreme Court in Jacob Mathew v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=III (2005) CCR 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=(2005) 6 SCC 1, had concluded that 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, with reasonable competence in the given case, the skill which he did possess. The instant case is relevant in respect of Respondent No. l and in view of the above facts, medical negligence per se is established. Regarding the negligence and mismanagement of the case, Counsel for Appellant specifically referred to the following observations made in the Report of the Medical Board, AIIMS: "Referring to Point No. 7 " -........... ....................... Dialysis notes shows that dialysis was started at 2.25 p.m. with a BP of 110/80 mmHg and even at that BP, Ultra filtration was started at 2.35 p.m. By 3.00 p.m. 500 ml fluid was removed and BP fell to 100/80 and patient ''s hypotension was recorded. At 3.45 p.m. BP was 80 systolic. Till 4.15 nothing specific measure was mentioned in record to correct BP. It is only at 4.15 that 200 mg Effcorlin was given and 500 ml Normal Saline was started. So, in the Medical Board ''s opinion, records show that hypotension was not managed in time appropriately. There is no record to document whether any doctor had seen when patient had hypotension or not? Blood pressure was recorded and monitored but was not acted upon appropriately. (Emphasis supplied) Referring to Point No. 8 -The Medical Board agrees that it is true that antihypertensive medicines were not monitored appropriately. On one side at one time patient was on medicine for increasing blood pressure and simultaneously also on medicine for decreasing blood pressure (10th and 11th Sep 1996). Referring to Point No. 9 -No documents are provided to comment whether Doctor had seen the patient after cardiac arrest during dialysis and whether 02 was given during shifting from dialysis unit to ICU or not. Referring to Point No. 10 -The Medical Board agrees that the absence of chest finding or other finding to suggest fluid overload, does not correspond to death certificate diagnosis of Fluid Overload. "

COUNSEL for Appellant contended that the observations of AIIMS are further fortified by the fact that Respondent did not examine any witness who was present during the dialysis to disprove the fact that, there was no doctor. He pointed out that in the criminal case under Section 304A of IPC, Respondent No. 1 had been found guilty. In view of the above facts, blatant medical negligence which led to the premature death of the Appellant ''s spouse was established and compensation of Rs. 57 lakh was fully justified.

COUNSEL for Respondent ''s in response stated that the Appellant ''s contention that Respondent No. l was not medically qualified as a specialist to deal with this case based on the observations of the AIIMS is not correct. As stated earlier, Respondent No. l had done MD in Medicine and at that time there were only a couple of institutions which had provisions for a DM in Nephrology. However, the fact that he had worked in the Nephrology Department of Jaslok Hospital, Mumbai and received training in two hospitals abroad and because he had also treated a large number of patients with ailments of the kidney including supervising 5000 dialysis and 200 kidney transplants were adequate proof of his having the necessary experience as a Nephrologist. He was also a life Member of Indian Society of Nephrologists and only a person duly qualified can become a life Member. The Hospital/Respondent No. 2 where he worked was notified by the Government of Madhya Pradesh for conducting human organ transplants under Section 3 of the Transplantation of Human Organs Act, 1994 and Respondent No. 1 was a part of the core team. It was also pointed that in the above Act, there is no specific provision that a doctor should have a post-graduate MD degree in a specific discipline to conduct an organ transplant. Regarding Appellant ''s contention that medical negligence has been established since Respondent No. l was convicted in a criminal case, it was pointed out that the Hon ''ble Apex Court in Vishnu Dutt Sharma v. Daya Sapra (Smt.), I (2009) DMC 515 (SC)=II (2009) SLT 382=(2009) 13 SCC 729, had opined that a judgment of a Criminal Court in civil proceedings will have only limited application, inter alia, for ascertaining who was the accused and what was the result of the criminal proceedings ". Therefore, the finding of guilt or conviction in a criminal trial cannot be the basis for foisting any liability in the present case. Further, a revision/appeal has been filed against this conclusion, which is pending before a superior Court. Regarding the allegations of medical negligence, based on the Report of the AIIMS, Counsel for Respondents pointed out that it needs to be kept in mind that patient had reported to Respondent No. 2/Hospital with serious and life threatening kidney problems as also other multiple diseases like Diabetes Mellitus, hypertension, Pulmonary TB etc. and despite the best possible treatment given to the patient she expired because of her very poor health condition and not because of any medical negligence. The Report of AIIMS pointing out certain shortcomings in the treatment was based on ab initio wrong information being supplied to AIIMS. For example, the dialysis flow sheet was not made available to AIIMS and therefore, their adverse comments pertaining to not checking the blood pressure or managing hypotension in time was factually not correct. Similarly, the question of withholding Hipril tablet and thereafter giving the same was viewed out of context because the Hipril tablet was given at 10 a.m. along with other medicines and it was only thereafter that medical advice was given to withhold it in the evening. It is also not correct that there was no doctor to attend to the patient including in the ICU. As per the record filed in evidence, even the name of the doctor (Dr. Mahesh Agrawal) who attended the patient had been given. Appellant ''s contention that Respondents had wrongly stated that the chest/lung of the patient was clear, since the Death Certificate had recorded that there was fluid overflow was again taken out of context. In fact, there was fluid overload when the patient attended the hospital and 600 ml. of fluid was removed during the peritoneal dialysis. The Death Certificate, therefore, states that there was no piling of water in the lungs. Finally, the Appellant ''s allegation that the patient was admitted in Respondent No. 2/Hospital only for investigation and preliminary tests regarding tissue matching and not for renal transplant is not correct. The patient was refused transplantation by Respondents because Appellant could not arrange for a relative to donate the kidney and it was under these circumstances that a reference letter was given to a doctor in Chennai for the transplant. Counsel for Appellant also denied that the patient contracted Hepatitis B because of being transfused with tainted blood since the incubation period for this disease is more than the period for which the patient was admitted in the Respondent No. 2/Hospital. Counsel for Respondents inter alia concluded that as per the documentary evidence filed including the case-history, it was apparent that the patient was properly and meticulously treated by qualified, professional and competent doctors and paramedical staff who using their best professional judgment administered the best medical care as per standard practices. Unfortunately, despite their best efforts because of her very poor overall medical condition, she could not be saved. The death, however, could not be attributed to any medical negligence on Respondents '' part and State Commission had therefore, rightly concluded that there was no medical negligence or deficiency in service. Finally, Counsel for Respondents challenged the compensation of Rs. 57 lakh claimed by Appellant. It was stated that in the original complaint before the State Commission, a compensation of Rs. 16,02,599 had been sought which was whimsically enhanced to Rs. 57 lakh without taking into account the fact that the patient who was a housewife had no monetary income of her own and having multiple health problems which had confined her to a wheelchair she obviously was unable to be active in household work.

WE have heard learned Counsel for both parties at length and have carefully gone through the voluminous evidence on record. Essentially, the three major issues pertinent to this case are: (i) whether Respondent No. l was a qualified as a Nephrologist to deal with the patient ''s case; (ii) whether there was any medical negligence or deficiency in service in the actual treatment of the patient during her stay in the Respondent No. 2/Hospital; and (iii) if so, what would be the adequate compensation justified under the circumstances. So far as the first issue is concerned, it is an admitted fact that Respondent No. l was an MD in Medicine but did not have any post-graduate degree or diploma in Nephrology. His claim of being a Nephrologist arose from the fact that he had worked in Jaslok Hospital, Mumbai as Sr. Registrar in the Department of Nephrology and had done an advanced training in Nephrology for 3 months in UK and a course of kidney transplant in the year 1982 in USA. AIIMS had clearly opined when specifically queried that this training was not adequate for him to be a qualified Nephrologist. While it is a fact that the Government of Madhya Pradesh had registered Respondent No. 2/Hospital as a centre for human organ transplant which includes kidney transplantation, it has nowhere been specifically stated that Respondent No. l was designated as the Nephrologist to conduct transplants. Respondent No. l ''s contention that he had in fact treated more than 10,000 renal patients for the last 20 years, supervised 200 kidney replacements and more than 5000 dialysis cases through an affidavit has not been confirmed by any evidence to this effect specifying the relevant details about such cases. When specifically asked by us, if some details of the same could be given, Counsel for Respondent was unable to give a satisfactory response and merely reiterated the facts mentioned in the affidavit. Carefully considering the above facts, we are inclined to agree with the view of AIIMS that since Respondent No. l was an MD in Medicine and did not have any formal degree or diploma which would qualify him to be a Nephrologist, he should not have claimed to be a Nephrologist and eligible to treat complex renal related problems requiring transplantation. The Hon ''ble Supreme Court has clearly decided this issue in Jacob Mathew v. State of Punjab and Anr. (supra), and respectfully following the above judgment we have no option but to conclude that Respondent No. 1 per se was guilty of medical negligence on this count alone.

SO far as actual medical negligence is concerned, there are certain grey areas which the Respondent No. 1 has not been able to satisfactorily explain e.g. pertaining to timely management of hypotension i.e. low blood pressure as also management of the patient in the ICCU. That apart, since we agree that Respondent No. 1 was not qualified as a Nephrologist to deal with this case which itself made him guilty of medical negligence, a suitable compensation is clearly justified in this case. As stated earlier, Counsel for Appellant in his original complaint had sought Rs. 16,02,599 as compensation which he enhanced to Rs. 57 lakh without giving any cogent reasons for the same. We have carefully considered the compensation to be given in this case. It is an admitted fact that the patient was in very poor health being an end stage case of renal failure which was further compounded because of other medical problems including hypertension and diabetes mellitus. She had been brought to the Respondent No. 2/Hospital in a wheelchair and from the documents and evidence on record, it is clear that the prognosis in her case was poor. Secondly, it is a fact that she did not earn any formal income. Appellant who was a Chief Engineer has stated before us that when he retired as a Chief Engineer in 1994, his annual income was Rs. 3.50 lakh. Taking into account the above factors and applying the multiplier method based on Section 163A of the Motor Vehicles Act, Santosh Devi v. National Insurance Co. Ltd. and Ors., III (2012) SLT 411=II (2012) ACC 377 (SC)=II (2012) CLT 235 (SC)=(2012) 6 SCC 421, wherein in such cases l/3rd of the husband ''s income would be taken into account as per the following standard i.e. Monthly income of the Appellant ÷ 1/3rd x Multiple factor of 14 (for the ages between 41 to 45 years) x life expectancy of not more than 7 years, we conclude that a compensation of Rs. 9,52,756 (i.e. Monthly Income of Rs. 29,166 ÷ 1/3rd = Rs. 9,722 x 14 x 7 = Rs. 9,52,756), would be reasonable and justified in the instant case. To sum-up we set aside the order of the State Commission and partly allow the First Appeal. Respondents are jointly and severally directed to pay Rs. 9,52,756 to the Appellant along with interest @ 9% per annum from the date of filing of the complaint before the State Commission till its realization within six weeks from the date of receipt of this order. The First Appeal is disposed of on the above terms. Appeal allowed.