SUBH LATA vs CHRISTIAN MEDICAL COLLEGE

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act, 1986.

SMT. Subh Lata, complainant is the widow of Ved Parkash, deceased who was a Government contractor at Ludhiana. The case put forward by the complainant in the complaints that in the year 1991 the deceased was suffering from mild fever and he was admitted in the Christian Medical College & Hospital, Ludhiana on 15.7.1991 for investigation and it was diagnosed then that he was suffering from some infection in urine and presence of left renal stone. The case of the complainant is that in the second week of September, 1993 Ved Parkash, deceased had mild fever and he was again taken to the respondent-hospital on 13.9.1993 and on the advise of Dr. K.L. Dhar (respondent-2), he was admitted in the hospital for his treatment. According to the complainant, on 7th of October, 1993 the deceased was taken to the operation theatre for conducting biopsy in his kidney for detecting the real cause of high fever which was then ranged between 100 and 101F and that after having done biopsy, the deceased started losing his senses as he started passing blood with urine in huge quantity. It is said that on 8th of October, 1993, the doctors of the respondenthospital went on strike and the deceased remained unattended by any doctor for about 40 hours. A grievance of the complainant is that without due and proper caution the qrespondents conducted kidney biopsy of the deceased and that resulted in his death. Being disgusted by the said conduct of the respondents, the complainant filed the complaint praying that an order may be passed against the respondents for the payment of a sum of Rs. 19 lacs as compensation for the loss and injury caused to her. On notices being issued, the respondents filed the written statement categorically denying the allegations made in the complaint. It was averred that they had acted in accordance with the standard of a reasonable competent medical men and there was no negligence either in diagnosis or in treatment on their part. Their case was that on 9.7.1991 when the deceased reported in the hospital for the first time, he was suffering from fever for the last about two and a half months and it ranged upto 102F temperature and when he reported in the hospital for the second time on 13.9.1993, he was diagnosed to have serious and life threatening diseases like Still''s disease (joint disease), muscle disease, Lung disease, Tuberculoses, Kidney disease, Staph Autreus Septicemia (infection of the blood) and it took them a long time to contain his diseases with strong anti-biotics. It was further submitted by the respondents that since the deceased was suffering from high fever and developed muscle weakness and albuminuria (spillage of albumen in in the urine), the necessity for his kidney biopsy arose for precise diagnosis and accordingly the biopsy was done on 7.10.1993 by Dr. Basil Rajan Issacs, an expert senior doctor and lecturer in medicine. The allegation of the complainant that the deceased was not treated properly due to the strike of doctors in the hospital was denied and it was pleaded that he was treated with utmost care and concern as required by the medical profession and he was not left unattended even for 10 minutes not to speak of 40 hours as alleged by the complainant. It was denied that just to save their skin, the hospital authorities had given the cause of death to be broncho pneumonia and it was also denied that the patient died due to kidney biopsy. The respondents, therefore, prayed for the dismissal of the complaint with examplary costs. In the rejoinder filed by the complainant, all the allegations were reiterated as given by her in the complaint.

In support of her case, the complainant rested herself content with the averments made in the complaint and the unproved documents Annexures C-1 to C-13. No other evidence was adduced and no reason was given as to why the complainant had chosen to refrain from appearing in the witness box, indicated. The respondents put on record the affidavits of Dr. K.L. Dhar, Dr. B.R. Prabhakar, Dr. Nalini Calton and Dr. Basil Rajan Issacs and the documents Annexures R-7 to R-7 and Annexures RA to RL

HAVING regards to the pleadings of the .parties and the submissions made by the learned Counsel for the parties, the points that arise for our consideration are:- (a) Whether there was any deficiency in the medical service rendered by the respondents, if so; (b) to what relief the complainant is entitled? Ere one inevitably goes to the dry bones of the facts of the case, the larger perspective issue is one of the approach to medical liability under the consumer jurisdiction. It was suggested though not trustfully argued on behalf of the respondents that the liability of the respondents could only be for a pulpable negligence or a patent professional blunder alone and not otherwise. The extreme stand on the side of the complainant was that a perfect and un-erring duty of care lies upon a Doctor in treating his patient.

THE law of medical negligence is well settled. Professional negligence or medical negligence may be defined as want of reasonable degree of care and skill or wilful negligence on the part of a medical practioner in the treatment of patient. As a rule, the law is very considerate to the medical profession. Lord Daniel in the case of Hatcher v. Black (Lancet 1954.2.88) opined that the jury must not find a doctor negligent simply because one of the risks actually took place or because in a matter of opinion he made an error of judgment. THEy should only find him inherent in an operation guilty when he had fallen short of the standard of reasonable medical care. Similarly Lord Justice Denning in Roe v. Ministry of Health (1954 (2) All.ER 131, 2QD 66 CA) said, we should be doing a dis-service to the community at large if we were to impose liability for everything that happens to go wrong.. we must insist on due care of the patients at every point and we must not condemn as negligence that which is only a misadventure. Mr. Justice Barrie in Moore v. Lewishan group said that "When there are genuinely two responsible schools of though about management of a clinical situation. THE Courts could do no greater dis-service to the community or the advancement of medical science than to place the halmark of legality upon one form of treatment. (John Wall, Practioner, September 1972, 311-312) Justice M.C. Nair in Balam v. Eriern Hospital Management Committee (1957 (2) All.ER 118) observed as follows:- "Counsel for the plaintiffs put it in this way. That in the case of a medical man, negligence means failure to act in accordance with the standard of reasonable competent medical men at the time. That is a perfectly accurate statement as long as it is remembered that there may be one or more perfectly proper standards and if a medical man conforms with one of those proper standards than he is not negligent".

In the light of these judicial pronouncements, we shall now deal with the case of the complainant. The first and primary act of negligence in deficiency of service attributed to the respondents by the complainant is that no adequate care was taken by the respondents while conducting kidney biopsy of the deceased as a result of which he expired though such operation is normal and is not fatal. Barring her own bald assertion in the complaint and somewhat self serving affidavit in support thereof, there is no other evidence examined by the complainant to establish that the respondents did not act with reasonable skill and knowledge conducting biopsy. Ved Parkash, deceased remained under the treatment of Dr. K.L. Dharand his team of doctors in the hospial. Dr. K.L. Dhar is a Prof. of medicine in Christian Medical College & Hospital, Ludhiana and a founder of the Kidney Diseases Section (Nephrology Service) of the hospital which includes dialysis service and renal transplantation. He is the founder President of Punjab Nephrology Society. According to the averments made by Dr. K.L. Dhar in his affidavit, after going through the pathology test reports, the deceased was diagnosed to be suffering from Adult Still''s disease (Sero-negative Rheumatoid arthorities of Juvenile of type) Interstitial Lung disease, Tuberculosis, Staph Aureu Septicemia, Polymyositis staph aureus bronchoneumnenia and Diffuse Proliferative glomerulonephritis based on albuminuria.

THE firm plea of Dr. K.L. Dhar is that the conditions and symptoms of Ved Parkash, deceased required thorough investigation and the respondents did it after pathological tests to find out the cause of high fever. THE necessity for kidney biopsy arose and the same was done on 7.10.1993 by Dr. Basil Rajan Issacs, who was a Lecturer in medicine in the Christian Medical College and Hospital, Ludhiana. According to the averments made in his affidavit. Dr. Issacs conducted the biopsy of left kidney of the deceased using Tru-cut needle by the technique prescribed by Tisher and Croker on page 528 of Schrier and Gottschalk Disease of the kidney, volume-I, 4th Edition 1988 published by Little, Brown & Co., Boston. He has stated that all the norms required for kidney biopsy were meticulously observed by him and the assisting Nurse. THE Biopsy piece was sent immediately to the department of Pathology under Dr. B.R. Prabhakar, M.D. Prof, and Head of the Department of Pathology of the Hospital for reporting. Dr. Issacs has claimed to have conducted 34 kidney biopsies out of total of 101 done in the year 1993. Dr. Issacs has further stated in the affidavit that two units of blood were transfused to the deceased on 7.10.1993 and two units of blood were transfused to him on 8.10.1993 and when he developed some reaction to the 4th bottle of blood at 4.30 p.m. on 8.10.1993 necessary injections of medicines were given to him. THEre is no evidence to show that the technique adopted by Dr. Issacs was not a well recognised technique. It is difficult to hold that the said doctor is guilty of any negligence and deficiency in service in performing the biopsy. THE respondents'' case is that during the morning round on 9.10.1993, the team of expert doctors observed that Ved Parkash, deceased had developed breathlessness and the X-ray of his chest revealed that he had developed broncho-pnemenia inspite of the adequate anti-bi otic treatment (This is a common complication of the disease known as Staph Aureus Septicemia) and that to contain this problem, a powerful anti-biotic known as OMNATAX (Cefotaxime) alongwith Oxygen was administered but unfortunately the patient succumbed at 3 p.m. on the same day. In the circumstances, the discretion exercised by Dr. K.L. Dhar to conduct kidney biopsy is not liable to be challenged in the Court of law. THEre is, therefore, absolutely no scope of accusing the respondents any negligence or deficiency of service in treating the deceased.

THE complainant has suppressed in her complaint that crucial facts that besides serious and life threatening diseases the deceased was already suffering from tuberculosis and Staph Aureus Septicemia (This is a serious infection of the blood by bacteria). This is an extremely serious diseases with a very high nortality rate specially when the heart, lung and brain got infected. We, therefore, hold that the complainant has not come before the Commission with clean hands and thus dis-entitled herself to relief in this jurisdiction. The another grievance of the complainant is that due to strike in the hospital on 8.10.1993, the deceased remained unattended by any Doctor for about 40 hours. This allegation of the complainant stands falsified by the Bed Head Ticket (Annex. RL) and the affidavit filed by Dr. Basil Rajan Issacs, Deputy Medical Superintendent (Annex. RX). These documents go to show that there was no strike or abandonment of work in any manner whatsoever in the hospital from 7th to 9th of October, 1993 and all the departments of the hospital functioned normally. Here again, we are unable to find any negligence or deficiency of service.

The complainant has claimed damages to the extent of Rs. 19 Lacs on account of carelessness and negligence on the part of the respondents. It is manifest that the pecuniary relief sought to be calculated and claimed by the complainant is utterly and totally lacking in any legal foundational base. It is more than well settled that the compensation and damages can only be awarded for direct and proximate loss and not for any remote or imaginary conesquences which may follow. Herein it is patent that the pecuniary relief is being sought on the wholly hypothetical ground that the patient had died untimely death because of kidney biopsy. Obviously the claims of this nature which are imaginary and legally entirely remote cannot be entertained in the consumer jurisdiction. The complaint in our opinion is frivolous and is a misuse of Consumer Protection Act, causing harassment and expenses to the respondents in contesting the complaint.

HAVING regard to these facts and in the circumstances of the case, it is clear that the complainant has failed to prove that there was any negligence on the part of the respondents in treating the deceased. So there was no deficiency in the medical service rendered by the respondents. In the result, therefore, this complaint fails and it is dismissed with costs, which are assessed at a modest sum of Rs. 1500/- only. Complaint dismissed.