K.L. Nijhawan And Anr. vs Sir Ganga Ram Hospital And Ors.

THIS appeal challenges the order dated 11.6.2003 of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, the State Commission'') in Complaint Case No. C -164 of 1996. By this order, the State Commission held that the opposite parties (Sir Ganga Ram Hospital, Chairman of the said Hospital and Dr. V.K. Khanna, Child Specialist at the said Hospital) were not negligent in providing necessary medical treatment to Sakshi Nijhawan (of about 9 years at the relevant time), daughter of the complainants (parents of Sakshi Nijhawan) and, therefore, dismissed the complaint leaving the parties to bear their own costs.

BRIEFLY , the facts of the case are that Sakshi Nijhawan complained of general weakness in the first week of February 1996 and was treated by a local doctor, (Dr. Suneet Khanna) who got some tests done and prescribed syrups and tonics for general weakness. However, Sakshi felt breathless in the evening of 11.2.1996 and, at the advice of the said Dr. Suneet Khanna, was taken to Sir Ganga Ram Hospital (hereafter, referred to as OP 1''). Dr. V.K. Khanna (OP 3) reviewed Sakshi''s case and then advised admission to the Hospital. Despite various tests and investigations conducted on Sakshi at the advice of OP 3, Sakshi continued to complain of weakness. She was shifted to the Paediatric Intensive Care Unit (ICU) on 13.2.1996 where she remained till her death on 11.3.1996. The complainants alleged deficiency in service/medical negligence on the part of the OPs and claimed compensation of Rs. 15 lakh with interest @ 24% per annum from the date of the complaint until payment.

THE OPs resisted the complaint on various grounds, including that the complainants were not consumers within the definition of the term under the Consumer Protection Act, 1986 (hereafter, the Act''). On merits, the OPs resisted the allegations and averred that Sakshi was treated duly and there was no negligence/deficiency in service on their part. OP 3 filed a separate reply/written version explaining his experience in the field of Paediatrics and claimed that he provided medical care and treatment of the highest standards to Sakshi during her stay at the OP 1 -Hospital. He also gave the details of the diagnosis. In the course of the proceedings before the State Commission, the complainants were allowed to inspect the entire medical record of Sakshi maintained by OP 1 and copies of these documents filed by OPs 1 and 2 were made available. Complainant No. 1 (father of Sakshi) filed his own affidavit dated 8.9.1997 whereas the OPs filed affidavit of OP 3 as well as seven affidavits in support of their case.

AFTER detailed discussion of the issues involved, the State Commission concluded that the complainants were indeed consumers within the meaning of the term under the Act and that they had availed of the services of the OPs on payment of appropriate consideration. However, based on the facts of the case as well as the ratio of the decisions of the Apex Court in a series of cases as well as those of the English Courts, the State Commission found that the OPs could not be held guilty of medical negligence/deficiency in service and passed the impugned order.

WE have heard Mr. Rajesh Mahendru, learned Counsel for the complainants and Mr. Vinay Bhasin, Senior Advocate as well as Mr. H.L Raina, Advocate for OP Nos. 1 and 2 and Dr. V.K. Khanna - OP 3 and carefully considered the records brought before us.

AT the outset, we may notice that despite initial objections (and subsequent, but reluctant, acceptance) of the learned Counsel for OPs 1 and 2, we referred the matter to the All India Institute of Medical Sciences (AIIMS), New Delhi by order dated 5.3.2008. The Director, AIIMS was requested to constitute a Committee of independent medical experts comprising, (i) the Head of the Department or a known specialist/super specialist in the field of pulmonary/respiratory diseases, (ii) a paediatric physician, (iii) a general physician or an expert from the Pathology/Anaesthesia Department for the said purpose. The Committee so constituted by the Director, All India Institute of Medical Sciences, New Delhi was requested to look into the entire record of the OP 1 from 12.2.1996 to 11.3.1996 and give a report whether there was any medical negligence on the part of the Hospital or Doctor(s) in diagnosis, treatment and/or management of the patient Sakshi during her stay at the said hospital. This was for the reasons recorded in the said order.

ACCORDINGL Y , a communication dated 30.4.2008 was received from the Medical Superintendent, AIIMS enclosing the report of the Medical Board constituted by the AIIMS in view of the above -mentioned directions. A copy of each of this report was made available to the appellant -complainants and the respondent -opposite parties.

LEARNED Counsel for the appellants filed objections to the report of the Medical Board alleging that it did not clarify the following specific issues: "(i) What were the causes for the development of Pneumothorax in the respondent hospital?

(ii) Whether the patient should have been subjected to open Thoracostomy, as the air leak was persistent for more than six days?

(iii) Whether the respondent hospital gave the right treatment to the patient suffering from Pneumothorax?

(iv) Was any other treatment possible to treat the patient suffering from Pneumothorax?

(v) Whether within two days of admission there was any medical evidence to show that the patient was suffering from ILD when the report of Bronchoscopy and BAL fluid tests were negative and no other test was conducted?

(vi) Whether the respondent hospital has cooked up the story of ILD in order to hide their acts when the Pneumothorax developed in the hospital and they treated and cured the patient suffering from Pneumothorax -

He, therefore, prayed that the matter be referred back to the said Medical Board for responding to the points of guilty. The learned Counsel for the OPs, in turn, filed reply to the objections raised by the learned Counsel for the appellants, stating that there was no need for a back reference to the Medical Board. After considering the content of the report of the Medical Board as well as the nature of objections filed on behalf of the appellants, we recorded the following order:

"Having considered the matter, we are of the opinion that the report dated 30.4.2008 of the Medical Board is in accordance with the directions of this Commission and meets the requirements of the terms of reference made by this Commission. We, therefore, see no good ground for making a back reference to elicit any further opinion in the matter. The objections of the appellant to the said report are as such dismissed."

IT is desirable to reproduce the report of the Medical Board of the AIIMS dated 30.4.2008, which reads as under: "With reference to the case file No. F -2 -19/Medical Board/2008 -Estt.(H) dated 26th March, 2008 constituted by the Director, AIIMS, a meeting of the Medical Board was held under the Chairmanship of Professor Randeep Guleria on Monday the 28th April, 2008 at 11.00 a.m. in Room No. 13, V.I.P. Consultation Room, M.S. Office Wing, AIIMS. The Board comprised of the following members:

Dr. Randeep Guleria Chairman Professor of Medicine 2. Dr. Chitra Sarkar Member Professor of Pathology 3. Dr. S.K. Kabra Member Addl. Professor of Paediatrics 4. Dr. R. Pandey Member Assistant Professor of Anaesthesia 5. Dr. R. Harsvardhan Member Secy. Department of Hosp. Admn.

The case pertains to one Sakshi Nijhawan, 9 -years old girl, D/o Sh. K.L Nijhawan admitted to Sir Ganga Ram Hospital on 12.2.1996.

It would be pertinent to make it clear that Board Members had not seen the patient per se and whatever opinion they have made, is based only on the records provided to the Board. Even the records have no original X -ray or C.T. scan film available.

Moreover it would not be imprudent to emphasise clearly that whatever deliberation and discussions were made by the expert Members of the Board, were made keeping in mind the current best established medical practice prevailing at that point of time, i.e., 12 yeas back from now.

Case Brief

To begin with, on 12.2.1996 the patient Sakshi Nijhawan, 9 -years old girl, D/o Sh. K.L. Nijhawan was admitted to Sir Ganga Ram Hospital on 12.2.1996 with complaint of sore throat for 12 days, generalized weakness, breathlessness on exertion for 5 days and fever for 5 days. Her heart rate was 132 per minute, respiratory rate of 62 per minute and oxygen saturation of 85%. She was treated with intravenous fluids, injection Supacef and Amikacin with provisional clinical differential diagnosis of Interstitial Pneumonia/Interstitial Lung Disease/Pneumocystis Carinii/Chest Infection/Myocarditis. Later on, as and when the condition warranted, all the necessary investigations were done and the patient was treated accordingly. Initially, the patient responded to the treatment but, because of low oxygen saturation from the day one and subsequent secondary infection followed by compromise in the respiratory function, there were few episodes of desaturation observed, while on treatment.

Patient was, ab initio, managed on the lines of Interstitial Pneumonia/Interstitial Lung Disease. However, to substantiate the clinical diagnosis, a lung biopsy could have been a theoretical option. But the patient''s clinical condition and specially the low oxygen saturation makes it a very risky procedure and therefore not possible in the prevailing circumstances.

As regards further management, the patient was being administered all the necessary broad -spectrum antibiotics, anti -inflammatory medicines as per the merit of the case. Because of suspicion of viral pneumonia, antivirals were also added. And as there was strong clinical possibility of ILD, steroids were also added as per standard practice.

Further when patient was shifted to ICU because of repeated episodes of desaturation and was being managed there, she developed complications related to ICU care - like nosocomial infection, gastric bleeding; for which suitable measures were taken as per the established norms. When condition warranted, the patient was put on ventilator after explaining the prognosis to the father/parents/attendants and consent for the same was also obtained. However patient could have been put on ventilator earlier but keeping in mind the trend of clinical practice 12 years ago this had its own risk and at that time it was not the immediate choice as today. Moreover the patient had also Pneumothorax and Phenumomediastinum as per the investigation report available in the case records and that would have also contra indicated the early veptilatory support. Later on giving the benefit of doubt, ATT was also started.

Summary

As regard the queries raised in the letter received vide M.S. Diary No. 1755 dated 20.3.2008 - in order to diagnose, all the possible steps were taken keeping in mind the changing clinical profile of the patient and prevailing current based established medical practice; to arrive at a clinical diagnosis/diagnosis.

Overall, the line of management and the way patient was managed was as it would have been at any of the best tertiary hospital in India.

Conclusion:

Apropos of the fact that the patient had not been examined by the expert members of the Medical Board and all the conclusions have been drawn after a deliberate discussion from the case record made available and keeping in mind the current best medical practice trends prevailing at that point of time i.e. 12 years back from now;

This view point can safely be maintained and the Medical Board is of the considered opinion that there was not any lapse/negligence of any kind on part either of the doctor(s) and/or hospital at any point of time during the patient''s stay while under treatment at Sir Ganga Ram Hospital, New Delhi."

THE unambiguous conclusions of the Medical Board in its report reproduced above leave no doubt that medical negligence/deficiency in service cannot be established in this case. This would be particularly so according to the ratio of the judgment of the Apex Court in the case of Martin F. D''Souza v. Mohd. Ishfaq, I (2009) CPJ 32 (SC)=157 (2009) DLT 391 (SC)=II (2009) SLT 20.

IN view of this and despite the deep sympathy that we have for the complainants because of the sudden and untimely death of their young daughter, a promising student, we cannot but uphold the order of the State Commission in its entirety and dismiss this appeal. Appeal dismissed.