Virendra Srivastava vs Surendra Lal Srivastava

THESE revision petitions have been filed by Dr. Virendra Srivastava (hereinafter referred to as the ''Petitioner '') being aggrieved by the order of the State Consumer Disputes Redressal Commission, U.P. (hereinafter referred to as the ''State Commission '') in Appeal Nos. 1117 and 1360 of 2005 in which Surendra Lal Srivastava who was the original complainant before the District Forum, is Respondent.

IN his complaint before the District Forum, Respondent had contended that his son late Anoop Kumar Srivastava (hereinafter referred to as the ''patient '') met with an accident at 7.00 p.m. while driving his scooter on 15.8.1998 and suffered injuries. Some persons in the vicinity took him to the Petitioner ''s clinic wherein the Petitioner/doctor after conducting an X-ray informed that there was fracture of the bones and dislocation of the shoulder which would be set right. Thereafter in the course of treatment an injection was given in the patient ''s hand soon after which his condition became critical and he expired. According to the Respondent, Petitioner gave his son a Doxapram injection which is contra-indicated in case of head injuries. If the Petitioner/doctor had been diligent and professional, he would not have ruled out head injury without proper examination, particularly, when there was vomiting which is a sign of the same and his son ''s life could have been saved. Respondent, therefore, filed a complaint before the District Forum on grounds of the medical negligence and deficiency in service and requested that the Petitioner be directed to pay the Respondent a sum of Rs. 4,50,000 with interest @ 18% per annum and Rs. 3,000 as litigation costs. The above contentions were denied by the Respondent who stated that the patient was brought to his clinic at about 8.15 a.m. on 15.8.1998 wherein he personally complained about acute pain in his shoulder and did not state at any point of time about any head injury. Petitioner, therefore, immediately started treatment for the injured shoulder. It was also contended that there was no outward sign of any head injury. During the course of the treatment while, hair from patient ''s chest was being removed for setting up his shoulder, the patient suddenly vomited, started breathing hoarsely and lost consciousness. Petitioner immediately stopped the shoulder procedure and administered an injection of Doxapram to save his life since it is a drug of choice in cases of acute respiratory distress as it acts as a stimulant. While it is a fact that Doxapram is contra-indicated in cases of head injury, in the instant case since there were no overt symptoms of any head injury nor did the patient complain of the same and the Petitioner using his best professional judgment to save the patient ''s life gave him this injection. Thus, there was no medical negligence in the treatment of the patient.

THE District Forum after hearing the parties and on the basis of evidence filed before it allowed the complaint and directed Petitioner No. l (Dr. Virendra Srivastava) and Respondent No. 2 (National Insurance Co. Ltd.) to jointly and severally pay the Respondent/Complainant Rs. 2 lakh within one month along with Rs. 1,000 as litigation costs.

BEING aggrieved, Petitioner/doctor, Respondent No. 2 (Insurance Co.) and the Respondent/Complainant filed separate appeals before the State Commission. The State Commission dismissed the Appeals of Respondent/Insurance Company and the Petitioner/Doctor with costs of Rs. 10,000 by observing as follows: "The explanation of Dr. Virendra Srivastava that he prescribed the injection with bona fide intention so that the patient could get rid of his respiratory distress may look to be simple but not full of care much less of the standard as was required of him. He was alive of the implications of a Doxapram injection if given to a patient of head injury but in haste and without realizing the implications of the drug he prescribed and administered the injection which proved fatal resulting in patient ''s death. There could be other stimulants to relieve the patient of his respiratory problem. It is not necessary for us to describe such stimulants but it is certain that Doxapram was not the only drug for respiratory problems. With every such injection, potential risk factors must have been kept in mind by Dr. Virendra Srivastava and other drugs as Bambuterol, Formoterol and Salmeterol and many more as argued by the learned Counsel for the complainants could have been prescribed. The present of traumatic swelling at two places i.e. occipital and parietal regions could very well be detected by Dr. Virendra Srivastava, had he been little careful to examine the head and probe for the injuries. Vomiting was another indication that there was something wrong with the patient ''s brain as vomiting is one of several other factors which could suggest a head injury or haerorrhage. In both the situations the negligence on the part of Dr. Virendra Srivastava is apparent and we are, therefore, of the opinion that Dr. Virendra Srivastava committed medical negligence while prescribing and administering Doxapram injection to the deceased who died soon after the injection being administered. "

However, appeal of the Respondent/Complainant for enhancement of compensation was accepted and the amount was enhanced from Rs. 2 lakh to Rs. 4,50,000 with interest @ 10% per annum from the date of accident till the payment on the grounds that the deceased at the time of his death was only 37 years of age and if he had not died prematurely on account of the fatal injection administered to him, he would have earned almost Rs. 60,000 per annum to support his family for a period of 30 to 35 years. Hence, the present revision petitions.

COUNSEL for both parties made oral submissions. Counsel for Petitioner forcefully argued that the Fora below erred in concluding that the death of the patient occurred due to his medical negligence and did not appreciate the fact that the patient himself had explained to the Petitioner/doctor that he only had injury on his shoulder and was in great pain and being an orthopaedic surgeon, Petitioner promptly attended to it. At no point of time did the patient complain of any head injury and also there was no overt evidence of the same. Even if there was the slightest indication or symptom of a head injury, Petitioner would not have administered the injection of Doxapram and Efcorlin since admittedly these drugs are contra-indicated in patients with head injury. On the other hand the administration of this injection was necessary when the patient experienced acute respiratory distress and lost consciousness since as is medically well-acknowledged these are the most effective drugs to stimulate respiration. Counsel for Petitioner further stated that even thereafter all efforts were made to save the life of the patient by administering oxygen and through a prolonged cardiac massage. Counsel for Petitioner also quoted from the post-mortem report that there was no overt head injury and in fact the head injury i.e. traumatic swelling in the occipital region, haematoma under the scalp as also the fracture of the occipital bone was detected only after opening the skull. In view of these reasons, Petitioner was not aware of any injury and therefore, he could not be held guilty of medical negligence or deficiency in service. Petitioner who was also present in-person confirmed the averments made by his Counsel and further stated that once the patient began experiencing respiratory distress and lost consciousness, as a medical practitioner, he immediately gave Doxapram and Efcorlin to save the patient ''s life. Therefore, no mala fide or medical negligence can be attributed to him.

COUNSEL for Respondent on the other hand stated that the learned Fora below had correctly concluded that there was medical negligence in the instant case. The patient who had suffered a shock and trauma after his accident was not expected to give specific details of his medical condition and, therefore, while he did mention about the injury to his shoulder, it was for the attending doctor to have carefully examined the patient for any other injuries particularly, since in cases of accidents head injuries are very common. In the instant case, the fact that the patient vomited is by itself an indication that there could be a neurological cause for it. In fact in the case history, Petitioner himself has recorded about the possibility of a head injury. Once, this suspicion arose in the mind of the Petitioner, he should not have hurriedly administered Doxapram and could have looked at some other optional medicines to release the respiratory distress which are not contra-indicated in cases of head injury. The post-mortem report confirmed the head injury and the traumatic swelling of 8 cm x 8 cm in the occipital area. Nowhere does the post-mortem report states that this was under the scalp. In view of these facts, this revision petition does not merit any consideration and may be dismissed. We have heard learned Counsel for both parties and have carefully gone through the evidence on record including the medical literature on the subject. The fact that the patient was admitted to the Petitioner ''s clinic soon after his accident is not in dispute. Further, it is also a fact that while the patient was on the X-ray table prior to the setting for his dislocated shoulder, he vomited and the Petitioner had recorded this fact as also the fact that there could be a possible head injury. It has also been admitted by the Petitioner that he was aware that an injection of Doxapram and Efcorlin are clearly contra-indicated in cases of head injury, yet admittedly these were administered to the patient to address the acute respiratory distress of the patient which proved fatal in this case. We are not convinced by the Petitioner ''s contention that there was no reason for him to suspect a head injury since the patient did not complain of it and also because there were no symptoms of overt head injury. Petitioner by his own admission had noted the vomiting and the possibility of a head injury and in any case as a doctor, he would be well aware that in cases of accidents, head injuries are common and have to be clearly ruled out either through a careful clinical examination or through diagnostic tests. Therefore, as a prudent doctor, Petitioner should have taken due precautions and instead of relying only on the patient ''s complaint, particularly a traumatised accident victim. The post-mortem clearly indicates that there were severe injuries to the head including swelling in the occipital region.

IT is now well accepted through a number of judgments including of Hon ''ble Apex Court in Jacob Mathew 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) 6 SCC 1, as to what constitutes medical negligence. Essentially we are required to see: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis -including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field, and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated, Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582.

IN the instant case, applying the above principles, we have no doubt that Petitioner was guilty of medical negligence because he did not conduct the necessary diagnostic and clinical tests to rule out head injuries even though there were obvious symptoms of the same and he himself had stated about the possibility of a head injury nor did he exercise the standards of skills and knowledge expected of his profession and injected drug which is contra-indicated in cases of a head injury and which proved fatal for the patient. The State Commission taking cognizance of all these facts had rightly concluded that Petitioner was guilty of medical negligence and deficiency in service. We agree with finding and uphold the order of the State Commission in toto. These revision petitions are accordingly dismissed. Petitioner/doctor and Respondent No. 2 (National Insurance Co. Ltd.) are therefore directed to jointly and severally pay the Respondent Rs. 4,50,000 with interest @ 10% per annum from the date of accident till realization within six weeks from the date of receipt of this order. Revision Petitions dismissed.