VEENA BATRA vs RAM LAL KUNDAN LAL

THIS case has arisen from the death of Sh. Narinder Batra within one and a half hours of the operation known as "fibular grafting and decompression of femoral head" for the problem of hip joint pain (condition of necrosis of the femoral head). Complainants are the LRs of the deceased and have claimed compensation of Rs. 19,50,000 for the loss which complainants have suffered due to untimely death of Sh. Narinder Batra.

DECEASED Sh. Narinder Batra, 33 years old, was an employee of the State Bank of Patiala, New Delhi, drawing a salary of Rs. 10,908 p.m. He was suffering from hip-joint pain and was under treatment of OP No. 2, Dr. S.P. Mandal, at Sir Ganga Ram Hospital as outdoor patient. Dr. Mandal advised Mr. Batra surgery of the hip-joint. He also suggested to him to undergo the surgery at Ram Lal Kundan Lal Orthopaedic Hospital, OP No. 1, where it would be less costly than at Sir Ganga Ram Hospital. He was also assured that OP No. 1 hospital would provide better services at cheaper rate than Sir Ganga Ram Hospital. On these assurances, the complainant No. 1, wife of the deceased, agreed to have the surgery of her husband at OP No. 1 hospital. According to the complainants, the deceased was lured by OP No. 2 to have the surgery at OP No. 1 hospital instead of Sir Ganga Ram Hospital for his own financial gain. The deceased, Mr. Batra was admitted to OP No. 1 hospital at 1.00 p.m. on 31.1.1999 under the care of OP No. 2, Dr. Mandal and surgery was fixed for 1.2.1999. There was a meagre checkup of the patient on 31.1.1999, though he had a medical history of high blood pressure. On 1.2.1999, the patient was taken to the operation theatre at about 9.00 a.m. where the anaesthetist examined him and found that blood pressure of the patient was high and he suggested consultation with a physician. However, OP No. 2 did not pay heed to this advice and wanted to proceed with the procedure. Thus, according to the complainants, anaesthesia was administered to the patient without getting him declared fit by a physician and OP No. 2 carried out the surgery.

After the surgery, the deceased, Mr. Batra was brought back to the ward at about 10.30 a.m. At that time, his blood pressure was 160/110. At 10.40 a.m., it was 150/100, but it rose to 180/110 at about 11.55 a.m. Despite this, the patient was not taken to an ICU and no life saving drugs were administered to him. The deceased, Mr. Batra complained of chest pain and his wife informed the nursing staff immediately, but no doctor was available in the hospital and the attending nurse refused to give any medicine without the orders of the doctor. OP No. 2, Dr. Mandal had already left the hospital by then. Condition of Mr. Batra deteriorated and wife of Mr. Batra approached the doctor present in the hospital and told him that they would shift the patient to a bigger hospital if they were unable to handle the case and the doctor said that he would summon some cardiologist to attend on the patient. However, it was too late and Mr. Batra collapsed before the arrival of the cardiologist.

ACCORDING to the complainants, Sh. Narender Batra died due to negligence of all the OPs. OP No. 2, Dr. Mandal did not take care of any complication arising out of the operation and left the hospital within 5 minutes of the operation even before Sh. Batra was brought out of the operation theatre. OP No. 1 hospital failed to provide timely medical help to Sh. Batra. The anaesthetist administered anaesthesia to Sh. Batra even though he was having high blood pressure. Complainants have claimed a compensation of Rs. 19,50,000. The OPs have filed a joint reply denying all the allegations made in the complaint. According to them, the patient was seen by OP No. 2, Dr. Mandal and Dr. Mahajan at their Ansari Road clinic and not at Ganga Ram Hospital. It is denied that the patient was allured to have the surgery at OP No. 1 hospital. The patient was explained options of surgery at different hospitals and he chose OP No. 1 hospital as per his means and this hospital is also well equipped.

IT is further stated that the patient had been completely examined and investigated before the operation, as he had visited Dr. Mandal and his team several times for consultation. During such examinations, the patient never informed of any record of hypertension and nor it was found on clinical examination. All routine pre-operative examinations including blood pressure check-up were done. As per the report of the anaesthetist during a routine examination three months back patient''s blood pressure was found to be 160/110 mm hg which stabilized without further investigation or treatment and this was attributed by the patient himself to the then existing tension. Before the operation, the blood pressure of the patient was found to be 150/100 mm hg which, according to the OP, is normal and safe zone for the operation in question. With appropriate medication, it came down to 140/90 mm hg. IT is denied that the anaesthetist, Dr. Mukherjee advised consultation with a physician before the operation. On finding the marginally raised BP, the patient was advised to consult a physician for routine checkup after the surgery. IT is further stated that pre-operative ECG was done which was normal. As to the post-operative events, it is stated that the operation was over a little before 10 O''clock and till 10.30 a.m., the patient was kept in post-operative recovery room and only on being satisfied that he was all right was he shifted to the ward. Dr. Mandal left the hospital only at 11.00 a.m. after visiting the patient and after ensuring that everything was normal. On receipt of getting a complaint of chest pain at 11.30 a.m., the patient was immediately examined by Dr. V.N. Gaur, orthopaedic consultant who gave him medicines to lower the blood pressure. Also the cardiologist, Dr. Roy along with Dr. Mukherjee came and attended on the patient at 11.40 a.m. Condition of the patient was found to be deteriorating, as the BP rose to 170/110 mm hg and pulse 100 per minute. Instead of subjecting the patient to the strain of a shift to the ICU, all the gadgets were brought to the ward itself with utmost speed and everything possible was done to resuscitate and reverse the unexpected, natural and spontaneous cardiac arrest. However, despite all efforts, the patient died at 1.00 p.m. According to the OPs, it was a spontaneous cardiac arrest totally unconnected with the operation. The OPs claim that OP No.1 hospital had all the modern facilities to deal with the situation. Complainants have filed a rejoinder reiterating the averments made in the complaint. Parties have filed their evidence by way of affidavits.

AT the outset it may be mentioned that the complainant filed an application on 18.3.2008 along with two documents one is Blood Requisition Form and the other is Blood Cross Matching Report both dated 31.1.1999, to show that the blood contained in the bottle had already expired on 16.2.1998 and transfusion of expired blood appears to be the main cause of the death. The blood matching report was supplied along with bottle to the complainant on 31.1.1999 and the operation was conducted on the next day.

IN response the OP also filed the reply denying the allegation of transfusion of expired blood. There is affidavit of Dr. S.N. Mukherjee in this regard, along with this they have filed a certified issued by H.O.D. Blood Bank, Hindu Rao Hospital dated 24.4.2008, which is to the following effect: A bottle of blood (Bottle No. 198) was issued by Hindu Rao Hospital Blood Bank to Ram Lal Kundan Lal Orthopaedic Hospital for the patient Mr. Narender Batra age 33 years male on dated 31.1.1999 in which date of expiry has been written by clerical mistake 16.2.1998 although the actual date of expiry of blood bottle No. 198 was 16.2.1999 Blood Bottle No. 198, date of collection was 11.1.1999 and the date of expiry was 16.2.1999. According to the Counsel for the complainant, the certificate has been procured subsequently i.e. after nine years about that the clerical mistake as to the date 16.2.1998 being incorrect.

As to the concept of medical negligence we have drawn certain criterion based upon several judgments of English Courts and Supreme Court of India. Starting from Bolam''s case reported in (1957) 2 All.ER 118, 121 D-F which still holds 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" (Charles worth & 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 Another, (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 & 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 & Anr., III (2005) CPJ 9 (SC)=III (2005) CCR 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=(2005) SCC (Cr.) 1369. Observations of the 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 practices. 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 profes-sional 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."

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 at lowest mortality rate? (v) Whether the negligence was so manifest and demonstrative that no professional or 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?

The contention that call for determination is as to the cause of death besides some administrative deficiencies of not procuring the services of OP No. 2 immediately when there was problem of complainant immediately after the operation that he started having chest pain and was not taken to the ICU. The complainant has tried to make out a case of medical negligence on the premise that OP No. 2 rushed for surgery in spite of deceased''s having history of high blood pressure reading 160/110 initially and thereafter it rose to 180/110. It is admitted that the deceased was having medical history of high blood pressure. Now at the later stage the case is made out as to the transfusion of expired blood due to which the deceased expired on 16.2.1998. Therefore mainly there are allegation of pre-operative and post-operative negligence.

IN respect of the allegation of transfusion of blood which mentioned the date of expiry as 16.2.1999 the Counsel for the OP has referred to medical literature showing that the shelf life of blood is 21 to 35 days and the shelf life can be extended to 42 days when AS-1 (Adsol) or AS-3 (Nutrice) is used. The relevant extract of the literature under the title Storage of Blood is as under: Storage of Blood Citrate phosphate dextrose adenine( CPDA -1) is an anti-coagulant preservative in which blood is stored at 1 to 60 C. Citrate is an anti-coagulant, phosphate serves as a buffer and dextrose is a red cell energy source. The addition of adenine to CPD solution allows RBCs to resynthesize adenosine triphosphate (ATP) which extends the storage time from 21 to 35 days. As a result, RBCs or whole blood can be stored for 35 days when stored in CPDA -1 . The shelf life can be extended to 42 days when AS 1 (Adsol) or AS 3 (Nutrice) is used. Adsol contained adenine, glucose, mannitol and sodium chloride, utricel contains glucose, adenine, citrate phosphate and sodium chloride. This duration of storage has been set by US federal regulation and is determined by the requirement that at least 70 percent of the transfused RBCs remain in circulation for 24 hours after infusion RBCs that survive 24 hours after transfusion disappear from the circulation at a normal rate. Those that do not survive are subsequently removed from the circulation by the blood recipient.

THUS contention of the Counsel for the OP is that since a blood sample has a limited shelf life of five weeks and thereafter it will coagulate and clot and become pulp if does not solidify. The cells would disintegrate after 4 to 5 weeks. There are strict norms about having the blood collections destroyed after 35 days and no blood bank can keep it. A blood sample expiring on 16.2.1998 being given by the Central Blood Bank of MCD, Delhi on 31.1.1999 is unthinkable and in any event its administration to any one is physical impossibility. Besides it has already come on record that the operation was performed between 9 a.m. and 10 a.m. on 1.2.1999 and the blood was administered during the operation. There is another kind of storage of blood which is known as "Frozen Storage". According to this storage the efficacy of using frozen thawed RBCs on a large scale basis was proved possible at Cook County Hospital in Chicago, during a 28 months period and there can be no doubt that blood can be stored for years and this certainly would help alleviate the problem of having uncommon blood types not readily available. The incidence of transfusion reaction can clearly be reduced. Furthermore, the use of frozen RBCs can minimize alloimmunization to human leukocyte antigen and to membrane specific antigens present on transfused white blood cells. However, these advantages can be more readily achieved by use of currently available washing device. However, the original claim that the use of frozen RBCs would decrease the incident of hepatitis seems to be unfounded. As a result frozen storage will continue to be used only on a limited basis.

Be that as it may, the fact remains that no expert or medical opinion has been produced by the complainant that the death took place due to transfusion of expired blood. The transfusion of stored blood being frozen blood cannot be ruled out. It is not possible that a doctor of OP No. 2 stature, skill, qualification would not take such precaution so as to check of blood that it is not expired. Had this been the case the death would have been instant. The complainant was known case of high blood pressure, who was operated on 1.2.1999. It appears that being a known case of high blood pressure; he felt some problem in the chest and the negligence if any is on the part of the OP No. 1 in not attending him for long for not taking him to the ICU for long or not getting the services of the expert immediately.

THIS deficiency may be limited to the lack of post-operative care. A person having known history of high blood pressure needed extra care after his surgery, as in such patients, the problem which deceased developed after surgery cannot be ruled out. However, it is not a case of such negligence which verges on the wrong treatment or wrong medicine or defective surgery. It is a case of only administrative negligence as the OP No. 2 could not be made available. It is a case where the complainant was taken to OP No. 1 hospital on the advice of OP No. 2 who was though being the consulting surgeon at Sir Ganga Ram Hospital advised the patient to go to Ram Lal Kundan Lal Orthopaedic Hospital, which is not only owned by him but he is Director of the same. We have taken a view that whenever any nursing home, hospital undertakes to treat a patient or conduct any surgery it is expected to anticipate all future complications and keep the arrangement of all experts in the field ready otherwise it should not undertake such patients.

IN the given facts and circumstance, we hold the OP No. 1 and OP No. 2 guilty jointly and severally for limited negligence for lack of post-operative care and not making the services of OP No. 2 available immediately. At the same time we cannot be oblivious of the fact that the deceased was a young man of 33 years and known case of high blood pressure. IN the result we deem that lump sum compensation of Rs. 50,000 besides Rs. 10,000 as cost of litigation would meet the ends of justice. The payment shall be made within one month from the date of receipt of this order. 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. Complaint disposed of.