NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
ORIGINAL PETITION NO.214 OF 1997
Prof. P.N. Thakur & Anr. … Complainants
Versus
Hans Charitable Hospital & Ors. … Opp. Parties
BEFORE :
HON’BLE MR.JUSTICE S.N. KAPOOR,
PRESIDING MEMBER
MRS. RAJYALAKSHMI RAO, MEMBER
For the Complainant : Mr. Dharmender Kumar Mishra, Mr.
Subodh Kumar Jha, Mr. Gunjan Sharma, Advocates
For the Opp. Party : Mr. Rajeev Saxena & Mr. O.P. Hans,
Advocates for O.P.No.1
Mr. R.N. Siddiqui, Advocate for O.P.2
Mr. N.N. Anand, Advocate for O.P.3
Mr. M.M. Singh & Mr. S.K. Singh,
Advocates for O.P.4
Dated :
This is an original complaint filed by Mr. P.N. Thakur, Complainant No.1 and Smt. Durga Devi, Complainant No.2, who are the father and mother respectively of the deceased Jai Dev Kumar. Opposite party No. 1 is a Charitable Hospital, managed by through its Chairman of the Board of Trustees Shri K.L. Hans, opposite party No.2 is the Junior R.M.O. of opposite party No.1 Dr. Rehan, opposite party No.3 is Dr. Kapil Sood, a Physician and opposite party No.4 is Dr. H.K. Singh, an ENT Specialist who are employed/ engaged by opposite party No.1 and working for opposite party No.1.
Prof. P.N. Thakur and his family living in District Munger,
After two days,
i.e. on 21.10.1996 at about
A postmortem was
conducted by the Sr. Chief Medical Officer of the
“In this type of bleeding (Epistaxis) possibility of aspiration is not unforeseen and could have been prevented.”
The Complainants alleged negligence on the part of the opposite parties on the following grounds :
(1) For most of the time after the patient was admitted on 21.10.1996 he was attended to only by Dr. Rehan, a Jr. Resident Unani Doctor without any degree in allopathic medicine.
(2) No Senior Doctor attended the patient till very late in the evening and the patient’s condition became very critical.
(3) No proper steps have been taken to clear the blocked airway of the patient.
(4)
The
negligence was so apparent that the Government Doctor, who conducted the
postmortem in the
The Complainants pleaded that their deceased son was on the verge of becoming the main financial support of the family. They claimed the compensation of Rs.73,15,000/-. The Complainants claimed compensation on the basis of income earned by the deceased in his life time which is given as under :
that in the normal course the deceased would have earned Rs.15,000/- per month and would have worked upto the age of 58 years. Thus calculating the income of the deceased, the deceased would have earned Rs.15,000x12x35 years, which comes to Rs.1,80,000x35 – Rs.68,00,000/-.
a. Financial loss suffered by the claimants 63,00,000/-
by the Complainants on account of death
of their son
b. Travelling expenses incurred by the
Complainants and their relatives and
Funeral expenses of the deceased 15,000/-
c. Damages on account of mental shock and
Agony suffered by the Complainants on
Account of death of their son 5,00,000/-
d. Damages on account of loss of the
Company of the deceased 5,00,000/-
The arguments on behalf of the opposite parties are that :-
(a) While it is true that Dr. Rehan had only a BUMS degree (Bachelor in Unani Medicine and Surgery), there was nothing wrong in his administering allopathic medicines and that the case law supports such a view.
(b) That the Complainants did not prove any specific act of negligence by commission or omission on the part of the opposite parties and no expert evidence has been led to show that the treatment given by the opposite parties is wrong.
(c) That the Doctor who conducted the postmortem has a degree in Forensic Medicine and not an ENT specialist and he had no business to comment as to whether the death is preventable or otherwise. It is argued that his responsibility ends with the recording of the cause of death and nothing else and that he was over enthusiastic.
(d) That the brother of the deceased snatched away the medical records from opposite party No.2 and that only selective records were produced by the Complainants and not entire record.
During the course of proceedings, Complainant No.1 Prof. P.N. Thakur, father of the deceased himself died. He was, therefore, substituted by his three sons Jai Kishan Kumar, Chabbi Narain and Nishi Kant.
We heard the arguments of both the sides and perused the records carefully. In our view, this is a case of total callousness, ignorance and lack of medical ethics on the part of the opposite parties resulting in the death of young person for the reasons recorded below :-
Firstly, it is
necessary to narrate the sequence of events. Record shows (P.22/A) that
the patient was admitted on 21.10.1996 at
The nurses’ record
at
The entries at
“To continue the same Rx. Inj. Botropase; Decon Nasal drops, liq. Paraffin nasal drops; watch for bleeding and inform SOS.”
At
There is another
entry by Dr. Kapil Sood, the Physician which records, “the patient again
having Epistaxis, consider
It is argued that
this entry is made by Dr. Sood, the Physician after examining the patient at
It appears that the
nasal packing was placed only at
The entries as per
medical records brought on file noted at
From the above
narration, it appears that Dr. Sood, the Physician, saw the patient at 11.20
a.m. and 5.40 p.m. and thereafter he reached the patient only at 9.15 p.m. by
which time the patient was dead. There is no evidence on record except
his own statement that he saw the patient at
Dr. Singh, the ENT
Consultant, seems to have seen the patient at
However, within a short while, i.e. at 4.00 p.m. the patient had again a fresh episode of Epistaxis. The ENT Specialist perhaps was consulted on phone and he suggested some medicines. At 3.45 p.m. the Physician Dr. Sood saw the patient and recorded that the patient was again having Epistaxis and advised nasal packing which was out only at 7.15 p.m.
Thus, it is argued that it is clear that patient waited in the hospital at 10.30 a.m. with the complaint of Epistaxis. He had fresh episode of Epistaxis at 3.30 p.m.; 4.00 p.m. and 5.45 p.m. and small nasal pack was placed anteriorly only at 7.15 p.m. At 8.30 p.m. it was recorded that there was no further bleeding. But the patient died at around 9.00 p.m. and according to the postmortem report, he died because of the choking of the air passage. There is no evidence whatsoever on record that an effort was made by endotracheal tube etc. to clear the blocked air ways from the time the patient was admitted at 8.45 a.m. till 8.55 p.m. Even we have to rely on the evidence of Dr. Singh, the ENT Specialist and Dr. Sood, the Physician, efforts were made by the former to clear the air passage at 8.55 p.m. and the later only reached the hospital at 9.15 p.m. when it was obviously too late to do anything.
The fact that (a) the ENT specialist saw the patient only at 3.40 p.m. even though he was summoned at 11.20 a.m. and (b) no efforts were made to clear the blocked airways till 8.55 p.m., though he was having repeated attacks of Epistaxis throughout the day, clearly establish negligence on the part of the respondent.
There was one more aspect, namely, the fact that the patient developed rigors after the drip was administered to him by Dr. Rehan some time in the morning of 21.10.1996. It appears that Dr. Rehan had administered the drips on his own. There is no evidence that the drip was immediately stopped. It is not clear at what time it was happened. It is also on record that at 2.00 p.m. the patient was running extremely high temperature of 105ºF with pulse of 106/mt. There is no record to show as to why the patient developed such a high fever and as to how opposite party Doctors attended to this high fever. None of the Doctors refer to the treatment given when patient touched 105ºF high fever which is an emergency. The above temperature reference is noted in Nurses’ record filed by the opposite parties. Not an iota of evidence has been brought on record to show as to how the extremely high temperature (105 º F) of the patient was treated, what medicines administered what caused the temperature in the first instance etc. This again is gross negligence.
The record also shows that Dr. Rehan made most of the entries and he was the one who was attending the patient at various point of time on the critical day. Dr. Rehan made entries under his signature five times in the course of the fateful day when the patient was admitted and died. He made entries at about 11.00 a.m. or so, at 3.00 p.m., at 4.00 p.m., at 5.00 p.m. and at 8.30 p.m. It may be noted that no entries were made after 8.30 p.m. and the patient expired around 9.30 p.m. or so. Dr. Rehan, who holds a degree in Unani Medicine – BUMS (Bachelor in Unani Medicine and Surgery) is no way qualified to give allopathic treatment to a serious patient having repeated attacks of Epistaxis which is a serious condition.
The opposite parties relied on the Judgement of the Punjab State in 2005 CSJ 63 – Manpreet Kaur and others Versus Dr. Veena Ghumban and argued that there is nothing wrong with the person qualified as a Bachelor of Unani Medicine and Surgery (BUMS) and practicing Allopathic medicine. He also relied on the judgement of the Supreme Court in Dr. Mukhtiar Chand & Anr. V/s. State of Punjab (AIR) 99 Supreme Court 468. These judgements, in our view, cannot be of any help to the opposite parties.
Firstly, no evidence has been brought on record to show that Dr. Rehan is enrolled on any State Medical Register to practice Allopathy. When a person with a degree in Unani medicines may perhaps administer some ordinary and routine allopathic drugs he certainly not competent to attend to emergency cases like Epistaxis.
Dr. Rehan stated in his cross-examination, “For getting registered with Medical Association one has to be MBBS but I was not MBBS as I am registered with ‘Ayurvedic & Unani Chikitsa Board, Delhi Admn. Delhi’, but the registration certificate is not on the file. It is correct that I cannot practice without the registration. I was not competent to conduct myself as full-fledged doctor in respect of all the patients but I could examine only Unani and Ayurvedic patient. The treatment of Unani and Allopathic patient is different.”
Further, Dr. Asha Hans, who is the daughter-in-law of the Chairman of the Hospital is supposed to have been there throughout according to all the opposite parties. Her presence is not recorded anywhere in the case sheets and she has not filed any affidavit to state how the patient was treated under her care as a Senior RMO. Opposite parties have been obviously taking this stand to protect themselves and Dr. Rehan, who otherwise cannot on his own take independent decisions and treat a serious emergency case of Epistaxis. This is gross negligence by the opposite parties to allow Dr. Rehan, a Unani trained person to handle such cases.
Extracts from the medical authorities brought on record clearly indicate that cases of Epistaxis to be treated as emergency cases. There is in-controvertible evidence that Dr. Rehan did act independently at least on one important occasion. The record shows that he, on his own, administered the intravenous drip which resulted in rigors in the patient. In cases of critical care such as Epistaxis, we hold that this is a clear negligence on the part of Dr. Rehan to treat the patient on his own. Although the Sr. Resident Dr. Asha Hans is supposed to have guided Dr. Rehan at every stage but the record does not show her presence in the proceedings.
When the temperature of the patient sore to 105º F how Dr. Rehan treated the patient is not known and there is not a whisper on this issue anywhere by any Doctor leave alone Dr. Rehan, who is silent about it. It is also not believable that at the time of critical condition of the deceased the medical record relating to the treatment were taken and that some of records suppressed, as alleged by the opposite parties, we find the medical records relating to the treatment brought on record by the Complainants are complete upto 8.30 p.m. and we do not see any merit in the argument that the Complainants suppressed some record.
Although Dr. Rehan has stated that he has been registered with Ayurvedic & Unani Chikitsa Board, Delhi Admn., Delhi but the said certificate has not been filed. As per the rules of this Board, he cannot practice without the registration. We are not sure first of all if he is registered with Ayurvedic & Unani Chikitsa Board. If he is registered whether he has renewed the certificate. He is not allowed to continue as junior RMO without renewing the certification as per the Delhi Bharatiya Chikitsa Parishad Act, 1998 under Clause 29 which is reproduced hereinunder :
“Clause 29:
29. Penalty for falsely claiming to be registered
If any person whose name is not for the time being entered in the register, falsely represents that it is so entered, or uses in connection with his name or title any words or letters reasonably calculated to suggest that his name is so entered, he shall, on conviction, be punished with fine which may extend to fifty thousand rupees, or rigorous imprisonment which may extend upto two years, or both.
30. False assumption of practitioner under this Act to be an offence
Any person who falsely assumes that he is a practitioner as defined in clause (k) of section 2 and practices the Bharatiya Chikitsa (Indian Systems of Medicine) shall be punishable with rigorous imprisonment which may extend upto three years and with fine which may extend upto fifty thousand rupees.
Explanation – Under this section, punishment can be awarded only to practitioners as defined in clause (k) of section 2 of this Act and no punishment may be awarded to any one practicing Veterinary medicine or Veterinary surgery or Homoeopathic or Modern Scientific System of Medicine.”
It is not clear whether Dr. Rehan is actually registered and if so whether the registration is valid or renewed for him to continue with the opposite parties hospital. If he is not registered under Ayurvedic & Unani Chikitsa Board then the hospital could not employ him to treat patients in the hospital. This information has not been supplied by the hospital authorities. Since this information has not been furnished for the reasons best known to the Respondents, we feel that in case proper papers were produced, it might have gone against the respondents and as such we believe that adverse inference should be drawn against the respondent. We further find support in taking this view from other material on record, which is being referred to herein after.
Lastly, we have to comment about the casual approach of the Chairman of the Hospital Trust to the entire episode. He does not seem to have a clue as to how things run in the hospital.
The Managing Trustees of the Hospital Shri K.L. Hans in his cross-examination admitted :
“….I was aware that O.P. Dr. Rehan was not MBBS but he was a qualified doctor. But I cannot say exactly about his qualification and his degree is placed on record.”
“….The doctors are supposed to be there but I cannot say whether they were there or not on fateful day. My enquiries revealed that on that day after 07.30 P.M. Dr. S.K. Sood, Dr. Rehan, Dr. H.K. Singh and Lady Dr. Asha Hans were at the hospital, even after the death of Mr. Jaidev. I am not aware that after 07.30 P.M. the Doctors were at their homes or chamber and whether they were called from there. My statement that all the doctors were present in the hospital after 07.30 P.M. on the fateful day is also correct. I cannot say how much time the doctors took to reach the bed of the patient on the fateful day.”
The statements are vague and contradictory and do not inspire any confidence in the proper running of the hospital.
Strangely the Chairman of the Trustees of the Hospital did not make any enquiries to find out how patients are handled in their hospital and whether Dr. Rehan can actually undertake emergency cases. A wishy washy attitude shown by the Hospital in appointment of Dr. Rehan as Junior RMO and their conduct in assessing in this case of death of their patient is not comprehendible by us.
Whether Dr. Rehan can actually treat serious cases like Epistaxis or can administer glucose or can treat the patient with high temperature is the question to be decided. But the record clearly shows that Dr. Rehan has independently treated the patient although it has been said that it was under the direction of Senior RMO and senior Doctors.
Supreme Court came down heavily in cases where Homeopathic Doctors treated the patients with allopathic medicines. In Poonam Verma Vs. Ashwin Patel and Others (1996) 4 SCC 332 where a doctor holding Diploma in Homeopathic Medicine and Surgery (DHMS) and registered under Bombay Homeopathic Practitioners Act, caused the death of a patient due to administration of Allopathic medicine, the Supreme Court held him being not qualified to practice Allopathy, was a quake or pretender to the medical knowledge and skill as a charlatan and hence guilty of negligence per se. The facts being similar in this case, we hold that there is total negligence in treating the deceased patient.
We also cite a decision of Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. [2005 6 SCC 1] :
19.“An of quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair. J. in Bolam vs. Freirn Hospital Management Committee, WLR at p. 586 in the following words: (AIR ER p. 121 D-F)
“[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 not 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.” (Charlesworth & Percy, ibid., para 8.02)
20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with an several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckerslely vs. Binnie summarised the Bolam test in the following words: (Con LR p.79)
“From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advanced, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to t he extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes to less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.” (Cherlessworth & Percy, ibid., para 8.04)”
(Emphasis supplied)
As regards the fixing of the liability for the above gross negligence that has taken place, we have to hold Respondent No.1, the Hospital as mainly responsible. They have employed an unqualified Doctor to administer and provide allopathic treatment to the patient. As stated above, since Dr. Rehan did not even produce his Registration Certificate with Delhi Chiktsa Board, a doubt is left in our mind as to whether he is qualified even as Unani Doctor. Employing such unqualified person and further allowing him to treat complicated and emergency cases is a gross negligence on the part of the Hospital.
As brought out earlier, the claim of the Hospital Trust is not even aware as to what is happening in the Hospital. The Hospital has put up an untenable case that Dr. Asha Hans, a senior RMO, was, in fact, looking after the patient and that Dr. Rehan acted under her instructions. There is no evidence whatsoever for this as has been brought on record. It is worth noting that Dr. Asha Hans is the daughter-in-law of the Chairman of the Trust and she has been put up as a front to cover up their gross irregularity in employing an unqualified Doctor similarly the Hospital authorities should have effected necessary coordination between the Physician and the ENT specialist. They failed in this and the ENT specialist came on the scene quite late in the day and no efforts were made to clear the blocked airways of the patient except administering sedative to him. It is this blocking of the airways which was unattended which resulted in the death within ten hours after the admission into the Hospital.
When a patient is admitted in a hospital, it is done with the belief that the treatment given in the hospital is being given by qualified doctors under the Indian Medical Council Act, 1956. It is not within the knowledge of the relatives of the patient that the patient is being treated by a Unani Specialist. We hold that it is clear deficiency in service and negligence by the hospital for leaving the patient in the hands of Unani doctor.
Secondly, there was a total lack of coordination between the Physician, ENT Specialist, RMO and the hospital authorities in the treatment given to the deceased. A young 23 year old M.A. graduate lost his life for a simple complaint of nose bleeding. Apex Court in Jacob Mathew Vs. State of Punjab case further held that in law of negligence doctors 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, with reasonable competence in the given case, the skill which he did possess.
As laid down by Apex Court in the above case, we feel it is high time that hospital authorities realize that the practice of employing non-medical practitioners such as Doctors specialized in Unani system and who do not possess the required skill and competence to give allopathic treatment and to let an emergency patient be treated in their hands is a gross negligence. We do not wish to attribute negligence on the part of Dr. Rehan alone while the patient was in his charge in terms of directing to pay compensation but solely on the hospital authorities for leaving the patient in his complete care knowing he is not qualified to treat such cases.
It may be mentioned that the deceased aged 23 years, would have got an employment in some school/college pretty soon and he might have earned around Rs.15,000/- per month. Supposing, he would have given over 50% of his income to his parents till his marriage in the age of 28 years, it would come to Rs.7,500/- for a period of five years total amounting to Rs.4,50,000/-.
Unfortunately, the father of the deceased died during the pendency of the case leaving behind the Complainant No.2, mother of the deceased, who would have been solely dependent on his son even after his marriage, say after five years for about 5 years at least, he would have contributed to the extent of 1/3rd for a period of five years or so, amount to Rs.3,00,000/-. Thus, we feel that an amount of Rs.7,50,000/- would be appropriate amount of compensation in face of peculiar facts and circumstances. The Complainant is also entitled to a compensatory amount of Rs.25,000/- plus Rs.25,000/- for medical expenses. Since we have already held that Respondent No.1 is mainly responsible for all that what has happened indicating medical negligence and casual approach of hospital in giving treatment and the ultimate death, we feel that primarily the hospital owned and run by Shri K.L. Hans is responsible to pay the aforesaid amount, for we feel that Dr. Rehan would be just an instrument in the hands of the hospital administration. Accordingly, Hans Charitable Hospital is directed to pay the aforesaid amount to the Complainants within a period of six weeks from the date of this order by way of bank draft.
The Original Petition stands disposed of accordingly.
……………………………………J.
(S.N. KAPOOR)
PRESIDING MEMBER
………………………………………
(RAJYALAKSHMI RAO)
MEMBER
P/