M.M.BAGATI vs Nihal Singh

THIS case demonstrates the plight of a poor person who lost his three months old child as he could not afford the fees of a Nursing Home, could not get a bed at AIIMS and when taken to another Government Hospital viz Dr. RML Hospital was referred to Kalawati Saran Hospital and in the process the child breathed his last there. Poor child was treated like a rolling stone and a shuttlecock.

ON account of death of a three months child due to renal failure because of overdose of medicines prescribed by the appellant doctor to whom the child was first taken, the District Forum vide impugned order dated 3.10.2000, has directed the appellant to pay Rs. 1,00,000 as damages for the trauma and suffering undergone by the respondent and his family and Rs. 50,000 towards the cost of the treatment of the child at different places and also for connected expenses and Rs. 2,500 as cost of litigation. Feeling aggrieved the appellant has directed this appeal under Section 17 of the Consumer Protection Act, 1986.

Case of the respondent-complainant in brief is that the child named Rishabh aged 3 months fell ill on 6.9.1998 and was taken to the appellant on 7.9.1998 for treatment. He remained under his treatment from 7.9.1998 to 12.9.1998 but when he did not improve, the appellant changed the medicines and advised for taking medicines for another three days. Unfortunately on 14.9.1998 i.e., after two days, the abdomen of the child started swelling. He was again taken to the appellant who gave some medicines for vomiting and told that the child would be all right. However, the condition of the child did not improve and rather started worsening. When he took the child to the appellant he got annoyed and told him that if he did not have faith in his treatment, then he could take his child elsewhere for treatment.

SINCE the condition of the child was getting worse, the respondent took the child to Narender Mohan Hospital, Mohan Nagar, Ghaziabad on 17.9.1998 where he was admitted for treatment. The hospital diagnosed that the child had developed kidney failure due to the overdose of medicines having been prescribed by the earlier doctor i.e., the appellant. However, he was treated at the hospital upto 29.9.1998 and when respondent was asked to deposit Rs. 30,000, he took the child to AIIMS as he could not afford the fees demanded by Narender Mohan Hospital. At AIIMS also he was diagnosed as having acute renal failure due to overdose of medicines. As the hospital did not have the bed at that time, he was referred to Ram Manohar Lohia Hospital and thereafter to Kalawati Saran Children Hospital where he was admitted on 1.10.1998. Their diagnosis was same i.e., acute renal failure due to overdose of the medicines. While absolving himself from the charge of medical negligence, the appellant firstly took the plea that no child by the name of Rishabh was brought to him for treatment and when he was confronted with the record then he took the plea that he did not charge any fees from the respondent for prescribing medicine and further that he treated the child only upto 12.9.1998 as thereafter the respondent did not bring the child to him for checkup which implied that the child was duly cured.

AT this stage it is pertinent to mention and refer to the opinion of the doctor of Narender Mohan Hospital, and Doctors of AIIMS and Kalawati Saran Children Hospital. The opinion of doctor of AIIMS given on 27.9.1998 is as under: AFR (Amino glycoside induce/used in high doses) in diuretic phase. The opinion of doctor of Kalawati Saran Children Hospital where the child was admitted on 1.10.1998 and was discharged on 17.10.1998 was as under: Diagnosis: Acute Renal Failure. Case Summary : Pt. Developed renal failure while being treated for Pneumonia (Pvt.). Exceed/V. high dose of gentamycin induced. OPD in Ghaziabad hospital. The report dated 30.10.1998 of Institute of Nuclear Medicine and Allied Sciences is as under: Radio nuclide serial renal functional study done using intravenous 99-Tc DTPA. Perfusion to both kidneys is normal in concurrence with appearance of radiotracer in the abdominal aorta. Corticol uptake of both kidneys at 1 min. is mildly reduced which builds up gradually with time. Serial films now normal transit of the tracer through the renal parenchyma. Glomerular function of both the kidneys is mildly impaired. No retention of radio pharmaceutical noted in the pelvicalyceal system of both the kidneys.

THE renogram, curve shows bilateral blunted peak (extravasation/active disease). Adequate tracer build up noted in the urinary bladder. Impression: *Bilatral mildly impaired functioning kidneys with no obstruction. *Scan finding are consistent with A.R.F. in the clinical context. Report of Institute of Pathology (ICMR) is as under: Acute renal failure (2nd Episode) Pt. had acute renal failure on 17.9.1998 due to high dose of gentamycin pt. was disuse to 17.10.1998 from KSCN ICU. Kidney biopsy shows 5-6 glomerul showing features of immaturity, mesangial widening and occasionally complete fibrosis and sclerosis. Tubules show marked dilatation, degeneration and regeneration of tubular epithelium and at places calcification. THE interestitium show dense infiltration by lymphocytes and vacuolated macrophages. THEre is thickening and hyalinisation of arteriolar wall. Features are suggestive of acute tubular necrosis with interstitial nephritis.

THE respondent has produced a notice given to the appellant by Medical Council of India dated 30.7.2003 which reads as under: Dr. M.M. Bagati, Registration No. 2965, dated 5.8.1983 Address: Shivaji Medical Centre, B-1/19, New Kondli, Delhi. Sir, I am directed to state that the General Body of the Council at its meeting held on 16th October, 2002 after taking note that information and evidence given by Sh. Nihal Singh r/o 19/18, Kalyan Puri, Delhi-110091 vide letter dated nil have noted that you have committed negligence in the treatment/management of the patient namely Rishabh. Hence, you have been found prima facie guilty of infamous conduct in respect of medical profession. In the light of above facts, it has been decided by the Council to remove your name temporarily from the Indian Medical Register for a period of one year. You are, therefore, requested to appear before the Secretary on 11th August, 2003 at 11.00 a.m. along with your original permanent registration certificate and degrees, etc. Your faithfully, Sd/- (Dr. A.S. Nayyer) Deputy Secretary

Fact that the child was taken to the appellant on 7.9.1998 and remained under his treatment till 14.9.1998 stands established and also the fact that he was taken to Narender Mohan Hospital on 17.9.1998 and then to AIIMS, Ram Manohar Lohia Hospital and thereafter to Kalawati Saran Hospital.

The main plank of the defence of the appellant as contended by the Counsel for the appellant appears to be that the child did not have renal failure till 14.9.1998 and had it been a case of renal failure the doctors at Narender Mohan Hospital, AIIMS, RML Hospital and Kalawati Saran Hospital would have put him at dialysis instead of treating the child and referring him from one place to another may be for any reasons and further no expert opinion has been produced by the respondent to show that the medicines prescribed by the appellant were of high doses or were not the prescribed medicines.

TO controvert the opinion of doctors of AIIMS as well as doctors of Kalawati Saran Hospital the appellant has relied upon the opinion of Dr. Pradeep Sharma, Senior Consultant Paediatrician and Neonatologist of Fortis Hospital, Noida, which is as under: The child whose illness began with a severe chest infection of Pnemonitis was found to be acute renal failure almost a week after and dialysis was performed on him. The child was referred from one hospital to another in due course of treatment but attendants shifted him after a gap of 2-3 days although they were advised to shift the child immediately. Renal biopsy confirmed the acute renal failure.

The initiating cause of acute renal insufficiency in the patient might be difficult to define. Young children with severe infections and loose motions and septicaemia are at risk of occurrence of acute renal failure as well seen in the present case. The doses of drugs seem to be adequate.

So far as the factum of acute renal failure due to high dose of antibiotic given at the first instance by the appellant is concerned, there is no room of doubt. This fact has received support and confirmation from the diagnosis at the AIIMS, Kalawati Saran Hospital and by the premier laboratories like ICMR and Department of Nuclear Medicines as well as Medical Council of India.

OPINION of Dr. Pradeep Sharma that children with severe infection and loose motion and septicaemia are at risk of occurrence of acute renal failure cannot have precedence over opinion of AIIMS, Kala Wati Saran Hospital as none of the doctors made any observations as to severe infection, loose motion and septicaemia. Dr. Sharma had no opportunity to see the child in the condition he was taken to AIIMS and Kalawati Saran Hospital. Similarly the opinion that dose of the drug seemed to be adequate as categorical opinion by doctors of two eminent hospitals was same as these doctors had given after examining the child. Since the child was taken from one hospital to another during short duration and was treated by several doctors at one stage or the other we find it unsafe and hazardous to hold that the overdose was administered by Narender Mohan Hospital or by AIIMS or Dr. RML Hospital or Kalawati Saran Hospital. Let us first deal with the concept of medical negligence. Way back in 1957, English Court laid down Bolam Test to determine medicine negligence. Bolam test came to be known through the decision delivered in a case where the appellant''s name was Bolam and 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 Clampham 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 & Percy, ibid., para 8.02)

Presumably because of this persuasive value of this decision our own Supreme Court has in case after case and particularly in Indian Medical Association v. V.P. Shantha & Others, III (1995) CPJ 1 (SC)=(1995) 6 SCC 651, wherein Bolam''s case was also discussed and adopted this test as guidelines for the Courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jaco Matthew v. State of Punjab and Another, III (2005) CPJ 9 (SC)=VI (2005) SLT 1=III (2005) CCR 9 (SC)=122 (2005) DLT 83 (SC)=(2005) SCC (Cr.) 1369. These 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 applying the aforesaid criteria and opinion of as many as three doctors reports of laboratories the appellant cannot escape the liability of charge of medical negligence arising from the over-medication of antibiotic drug like gentamycin on an infant child of three months particularly in view of the age of the child, the nature of medicine, its dose and its duration. The opinion of doctors of AIIMS, Kalawati Saran Hospital and Medical Council of India can be acted upon only in respect of the observation that high dose of gentamycin was induced that resulted in renal failure. The long chain of events and the treatment given to the child who was taken from one hospital to another leads us to inescapable conclusion that it is a case of medical negligence at first instance.

HOWEVER for such negligence the compensation awarded by the District Forum appears to be on much higher side. In our view the lumpsum compensation of Rs. 50,000 including the cost of litigation would meet the ends of justice. In the result the appeal is partly allowed to the aforesaid extent. FDR/Bank Guarantee, if any deposited by the appellant be returned forthwith after completing necessary formalities.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room. Appeal partly allowed.