IN THE STATE COMMISSION�� : DELHI
(Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 )
Date of Decision: 31-10-2008
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Complaint Case No.C-87/2003.
Sh. Naresh Mehra,�������������������������������������������� ������ -Complainant
S/o Sh. R.L. Mehra, Through
R/o 48, East Revenue Road, Mr. Sunil Chowdhary
East Punjabi Bagh, Mr. Sanjay Sharma,
New Delhi. Advocates.
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Versus
1. Dr. A.P. Choudhary,������������������������������������ -Opposite Party No.1
Managing Director, Through
Maharaja Agrasain Hospital, Ms. Neelam Gupta,
Punjabi Bagh. Advocate.
New Delhi.
2. Dr. P. Sharma,������������������������������������������� ����������� -Opposite Party No.2
Maharaja Agrasain Hospital,
Punjabi Bagh.
New Delhi.
3. Dr. Rajiv Sharma,������������������������������������������ -Opposite Party No.3
Maharaja Agrasain Hospital,
Punjabi Bagh,
New Delhi.
CORAM:
Mr. Justice J.D.Kapoor���������������������� President
Ms Rumnita Mittal�������������������������������������� Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
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JUSTICE J.D. KAPOOR, PRESIDENT (ORAL)
Alleging deficiency in service on the part of the OPs the complainant has through this
complaint sought the following reliefs for the loss of business, medical expenses and for
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undergoing mental torture, agony and stigma:-
i) Total financial loss due to - Rs.40,80,000/-
Unemployment
ii) Medical Expenses - Rs. 1,00,000/-
iii) For physical torture and - Rs. 10,00,000/-
Mental agony and stigma
Total Rs.51,80,000/-
2. Case of the complainant, in brief, is that he was having nasal pain and was examined in
the Maharaja Agarsian hospital and operated upon by Dr. P. Sharma and Rajeev Sharma on
15.04.2003 and was discharged on 16.04.2003. After the operation was over, the complainant
got massive swelling and pain in his right eye and gradually vision in his right eye started
reducing and the same was also complained to the concerned doctor but the complainant
was assured that everything will be normal very soon. Complainant also contacted Dr. P.
Sharma who also assured the complainant saying that the swelling and the other problem
occurred were normal outcome of the operation. When the position aggravated the
complainant was again admitted on 18.04.2003 and his bandage from the nose was removed
and he was shifted to the ward. MRI test was recommended by the said d octors, who
opined that “findings are suggestive of chronic ethmoid and Rt. Maxillary sinusitis with
associated fungal granulomatosis and Rt. Sided orbital (medical extraconal space) extension
causing orbital cellutitis, Lid Oedema and mild proptosis. To cure the post nasal problem in the
eyes of the complainant the operation was also performed by the Dr. Jha and Dr. Sethi of the
concerned Maharaja Agarsain Hospital which came out a total failure and the complainant
could not get reprieve of his far long problem concerning to the loss of vision and the doctor
concerned who performed the operation of the right eye of the complainant flatly said that the
vision in the right eye of the complainant has totally gone and it can not be restored in any way
at all. The complainant was also handed over the treatment bill amounting to the tune of
Rs.44,740/- which also contains the MRI skin charges by the Authorities of Maharaja Agarsain
Hospital.
3. The complainant also approached the Vision Eye Center, Sir Ganga Ram Hospital and
Venu Eye Institute and lastly in Aruna Asaf Ali Govt. hospital, Rajpur Road, Delhi but the
complainant got nothing and the opinion in all the hospitals was the same that this loss of vision
got developed due to post nasal operation due to most negligent handiwork adopted by Sh. P.
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Sharma and Dr. Rajiv Sharma. The complainant has been made handicapped specially in view
of the profession which the complainant has been running, the complainant can not perform
his business of photography and videography nor nurture his school going children and old
aged parents and especially father. Whole life of the complainant has been ruined and full of
disappointment.
4. T he complainant having a flourishing business has been earning about Rs.20,000/- per
month and also has been giving employment to staff i.e. of 6 boys. The complainant since
15.04.2003 till 05.05.2003, went through various examination and treatment and suffered mental
agony and loss of business. He also spent the huge amount on the problem developed after
operation performed by Dr. P. Sharma and Rajeev Sharma of the Hospital Maharaja Agarsain.
5. In its defence, OP-Hospital averred that there is no cause of action either against the
answering OP or against the hospital or the trust even as per the contents of the complaint and
the allegations made therein. The complainant was admitted in the Hospital on 15.04.2003 and
was discharged on 16.04.2003 after the operation i.e. FESS (Functional Endoscopic Sinusitis
Surgery) was successfully done. At the time of discharge there was neither any complaint nor
any complication. Thereafter, the complainant was admitted to the hospital on 18.04.2003 with
the complaint that he was having lid odema. He was provided with best possible care by the
hospital and was discharged on 26.04.2003. During the period the patient/complainant
remained as indoor patient in the hospital and was treated, there was neither any negligence
nor any deficiency in-service. At the time of the admission in hospital, the complainant as well
as his wife disclosed his income as Rs.2800/- per month only. But in the present complaint, the
complainant has exaggerated his claim by alleging his income Rs.20,000/- per month. At the
time of discharge from hospital at second time, he refused to clear the outstanding bills. The
hospital authorities deferred the amount of bill and handed over the discharge paper and other
documents. It is categorically denied that the hospital authorities are jointly and severally
responsible.
6.���������� Version of OP No.2-Doctor, who was the treating doctor is that the complainant was
examined and was diagnosed as a case of chronic, Rhinosinustitis with Granular Pharyngitis and
post – nasal discharge. The complainant was prescribed with medicines and other
conservative treatment during his 3-4 visits. The complainant was however, suggested that in the
case of the complainant the other treatment is FESS i.e. functional Endoscopic Sinus Surgery.
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The complainant opted and asked to perform FESS operation functional Endoscopic Sinustitis
Surgery and thus took admission in the Maharaja Agarsen Hospital Punjabi Bagh, New Delhi on
15th April, 2003. The OP NO.2 accordingly had all the routine basic investigations required for the
surgery to be done e.g. his blood counts, eosinophil counts, urine examinations, BT/CT, X-ray
chest were done and were found to be within the normal limits. Details information was given to
the complainant and consent was also obtained duly signed by the complainant as well as his
Wife Smt. Rachna Mehra after explaining all the risks and complications involved in the surgery.
The surgery was successfully carried out by OP NO.2alongwith OP NO.3. The OP NO.2 & 3 are
highly qualified and experienced ENT specialist having several medical laurels to their credit. On
16th April 2003, in the morning OP NO.2 examined the complainant and found the condition of
the complainant absolutely normal and clinically stable. There was absolutely no complaint of
bleeding vomiting, nousea or giddiness or any sort of discomfort and thus on the request of the
complainant he was discharged on 16.04.2003 itself with an advice to take medicines regularly
and to report to the Hospital for the follow-up on 18.04.2003. The treatment given to the
complainant was as per the recognized standard procedure and practice through out the
world. His vision of the right eye was not examined, as it was not necessary for the purpose of
proposed nasal surgery. On 17.04.2003, the OP NO.2 received a call from the complainant
stating that the he was suffering from headache and some discomfort in nasal region.
7. T h e complainant and his wife did not express any “acute pain or discomfort’ being
suffered by the complainant and were constantly insisting that there was a minor discomfort
and minor headache and were also reluctant to go to the emergency/casualty of the hospital
but kept on insisting to prescribe some medicines/pain killer on the telephone itself. The OP NO.2
in such circumstances had no option but to prescribe tablet “Voveran”.
8. O n 18.04.2003, in the after noon at about 1.30 p.m. the complainant visited the
hospital and met the OP NO.2 for follow-up as per the pre-appointment. The OP NO.2 noticed
that there was swelling in and around the right eye of the complainant and also some signs of
redness. There was no other surgical complication i.e. no evidence of cavernous sinus
thrombosis or meningitis. Nasal pack was removed and there was no bleeding. As there was
swelling in an around the right eye senior ophthalmologist Dr. Gyan Goel was contacted and his
opinion was sought. Diagnosis of orbital cellulites was made for which the patient was advised
admission and treatment was started immediately. Another Sr. Ophthalmologist was also
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consulted who advised the complainant to get the MRI done to know the exact cause of
swelling and pain and also diagnosed the same. On 19.04.2003, the MRI was done at National
MRI scan center and the provisional report was given on the same day itself which revealed
swelling of the right medical rectus muscle and orbital cellulites. After confirmation the eye
specialist advised the complainant to get the ‘Right Eye’ Anterior Orbitotomy for
decompressing the orbit and the complainant was put to another process of orbitotomy in the
presence of Dr. Anita Seth and other Sr. Doctors to further exclude any possibility of any kind of
pus formation or any other infection. The complainant was prescribed the same treatment post
operative also and was reviewed daily by the OP NO.2 till 25.04.2003. During this period on
20.04.2003 patient was comfortable and vitals were maintained. There was marked
improvement in the swelling of the right eye and pain. On 21.04.2003, Dr. Jha again examined
the patient and advised right eye anterior orbitomy to decompose the orbit after further
discussing the case with Dr. Anita Sethi & Dr. Grover, Sr. Consultant Opthalmologists, Sir Ganga
Ram Hospital. Patient was immediately taken for surgery and Dr. Sainia in the presence of Dr.
Anita Sethi, did decompression of orbit successfully. Patient was reviewed daily by Dr. P.
Sharma Dr. Rajiv Shrma, Dr. Jha & Dr. Sainnia. On 25.04.2003 VED was done at Sir Ganga Ram
Hospital, which showed delayed response with low amplitude waves. As the patient was stable
after discussion with Dr. Jha it was decided to discharge the patient on 26.04.2003 with the
following treatment tablet predensolone 150 mg OD after BF, tablet Ceftum 500 mg BD, tablet
Metrogyl 400 mg TDS, capsule Dalacin C 300 mg BD advised to come for review in eye OPD on
Tuesday/Friday. The complainant was discharged on 26/04.2003. He was explained the
prognosis and was referred to AIIMS for further evaluation.
9. The complainant has filed a criminal case against the OP NO.2 and has leveled
wild allegations pertaining to the negligence on the part of OP NO.2
10. It is categorically denied that the OPs are responsible for the alleged loss of
Rs.51,80,000/-.
11. The complainant has relied upon the order of the Delhi Medical Council before whom a
complaint was made wherein the doctors were held guilty for negligence for having failed to
exercise reasonable degree of skill, knowledge and care which was expected of a prudent
doctor as he should have foreseen the complication which the complainant developed
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ensuing the FESS procedure and should have treated it expeditiously when the complainant
informed him about the symptoms of the complication, by removing the nasal pack to restrict
the spread of the infection which had developed, at the earliest, instead of examining the
patient on 18-04-2003. the delay in not immediately attending to the complication
compounded the same, as it aggravated rapidly resulting in almost no possibility of restricting
the infection and salavaging the vision in the right eye even after orbitotomy. However, the
observations of the Medical Counsel are as under:-
“(i) Dr. P. Sharma failed to exercise reasonable degree of skill, knowledge and care
which was expected of a prudent doctor as he should have foreseen the
complication which the complainant developed ensuing the FESS procedure and
should have treated it expeditiously when the complainant informed him about the
symptoms of the complication, by removing the nasal pack to restrict the spread of
the infection which had developed, at the earliest, instead of examining the patient
on 18-04-2003. the delay in not immediately attending to the complication
compounded the same, as it aggravated rapidly resulting in almost no possibility of
restricting the infection and salavaging the vision in the right eye even after
orbitotomy.
(ii) T he complication which the complainant developed was expected to be
within the ambit of processional’s contemplation, warranting urgent attention
(physical examination of the patient), failure of which reflects want of reasonable
care on the part of Dr. P. Sharma. The entire incident is a testament to the
indifference exhibited by Dr. P. Sharma towards the plight of his patient. The name of
Dr. P. Sharma is removed from the State Medical Register of Delhi Medical Council for
a period of six weeks from the date of this order, censures to be recorded. No
medical negligence can be attributed on the part of respondent No.1, 3 and 4, in
the treatment administered to the complainant.”
12. Apart from this there is report of Medical Board, which was of the following view:-
“The action taken by the ENT Surgeons even after getting MRI Scan on 19-04-2003
speaks of casualness and laxity. The eye surgeon Dr. Jha was shown the MRI films on
21-04-2003, who confirmed the diagnosis of abscess in the right orbit and accordingly
arranged to drain it on 21-04-2003. But it is a classical case of treatment delayed is
treatment denied and patient lost the vision completely in the right eye.
The MRI Scan Films dated 19-04-2003 done at National MRI Scan Centre Punjabi Bagh
were reviewed by the board members. It did not reveal evidence of gross
retroorbital haematoma. The report dated 20-04-2003 was taken on record. The
report is silent about the staus of Lamina Papyracea.
Patient was examined by the members of the board. The opinion regarding the
status of the right eye is as follows:-
1. Visual acuity – No perception of light in the right eye.
2. Pupillary reaction absent in right eye. Consensual reaction is present.
3. There is no proptosis of the right eye.
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4. Occular movements normal.
5. Fundus examination reveals – Disc Pallor ++.
Opinion – Permanent loss of vision in the right eye due to atrophy of optic nerve due
to orbital cellulites following FESS operation. The date & time wise sequence of
events, complications and negligence following FESS operation has been elaborated
as above.”
14. On the concept of medical negligence we have culled out certain criteria from the ratio
of large number of judgments starting from Bolam’s case followed by various judgments of
the Supreme Court, some of which are as under :-
(a) Bolam’s case reported in (1957) 2 AII ER 118, 121 D-F
(b) Sidway V. Bethlem Royal Hospital Governors and Others – 643 All England Law
Reprots (1985) 1 All ER.
(c) M aynard V. West Midlands Regional Health Authority 635 All England Law
Reports (1985) 1 All ER.
(d) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(e) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651
(f) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369
15. The conclusions are as under :-
(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
practices?
(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 postoperative
or condition environment-oriented deficiency?
16. As is apparent from the aforesaid conspectus of facts, the main cause for loss of vision
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was the delayed MRI as well as the treating doctor being unaware of the complication that
developed ensuing the FESS procedure.
17. In the original complaint Dr. A.P. Choudhary was made an individual party though he
has been shown as Managing Director of the Maharaja Agrasain Hospital whereas Dr. P.
Sharma has been arraigned as treating doctor and Dr. Rajiv Sharma was his junior.
18. We have taken a view that whenever any patient lands in any Hospital or Nursing Home,
Medical Centre, his direct relationship of consumer for hiring or availing the medical services is
with the said Hospital or Nursing Home or medical Centre and not with the treating Doctors and
other personnel, secondly, the entire consideration in the form of expenses including the
component of charges or fees of the operating Doctor and other junior Doctors and staff
engaged in pre or post operative care or any other kind of care are paid to the Nursing Home
or Hospital or Medical Centre directly and thirdly that there is totality or compendium of various
services including medical and those of para staff and other conveniences and the privity of
contract is not with the operating or treating or attending Doctors, nurses and other staff.
19. Thus if a patient suffers due to the medical negligence or carelessness of Doctors and
staff of the Hospital or Nursing Home or Medical Centre whose services he avails against
consideration, said Hospital or Nursing Home or Medical Centre alone is liable to compensate
the patient as to loss or injury suffered by him and Nursing Home or Hospital or Medical Centre
has independent remedy to take any kind of action against such doctors or staff but no doctor
or staff has a joint or several liability qua the patient.
20. Similarly Nursing Homes or Medical Centres or Hospitals alone are liable for the acts of
omission or commission or medical negligence of visiting or consulting Doctors as the patient
has no direct contract with such Doctors and services of such Doctors are availed by the
Hospital or Nursing Home or Medical Centre and not the patient.
21. Any patient or person has a right to claim compensation for the sufferings suffered by him
from the individual Doctor or doctors with whom he has direct contract either at his clinic or at
any Nursing Home or Hospital or Medical Centre whose infrastructure facilities may be availed
by such Doctors.
22. F or the purpose of this complaint Maharaja Agrasain Hospital through its Managing
Director Dr. A.P. Choudhary is alone liable whereas complaint against OP No.2 and 3 shall stand
dismissed because of their neither being jointly nor severally liable for deficiency in service for
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the treatment.
23. However, the defence version of OP No.2 and 3 has to be treated as defence on behalf
of OP No.1.
24. In the instant case we are equipped with two reports. One is the report of Delhi Medical
Council and another is that of the Medical Board. So far as the Delhi Medical Council report is
concerned it has categorically held that the treating doctor failed to exercise reasonable
degree of skill, knowledge and care which was expected of a prudent doctor as he should
have foreseen the complication which the complainant developed ensuring the FESS
procedure and should have treated it expeditiously as this complication which the complainant
developed was expected to be within the ambit of professional’s contemplation, warranting
urgent attention (physical examination of the patient), the failure of which reflects want of
reasonable care on the part of the treating doctor.
25. However, learned counsel appearing on behalf of the OP contended that the Medical
Board Report shows that there was no negligence in discharging the patient on 16-04-2003 by
Dr. P. Sharma and after the operation he was advised to come on 18-04-2003 for follow up but
on 17-04-2003 he called up the doctor and asked for prescribing pain killer but the doctor asked
him to come to the hospital but he came on 18-04-2003 and advised MRI. Since the MRI
apparatus was not available in the hospital it was done on 19-04-2003 and requisite treatment
was started immediately and therefore there was no negligence on the part of the treating
doctor. It is further contended that even the medical board opined that it was not done on that
date but was done on the next date and it was only on this account the doctor was held
negligent. There is no material or report of any other doctor or hospital that orbital cellulites
were due to FESS operation.
26. We do not find ourselves in agreement with the contention of the learned counsel for the
OP as not only the Medical Board has clearly opined that permanent loss of vision in the right
eye was due to atrophy of optic nerve due to orbital cellulities following FESS operation and
therefore the treatment for draining puss was delayed and as a result the patient lost his vision in
the right eye but the Delhi Medical Council has also attributed to the negligence towards not
only delay but also the nature of complication which should have been in the knowledge of
prudent doctor as he should have foreseen the complication ensuing the FESS procedure and
should have treated it expeditiously. Any other doctor much less the junior doctor who is not
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the operating doctor like OP Rajiv Sharma cannot in any manner be held guilty for negligence.
27. We have taken a view that any treating doctor or any other hospital where a patient
lands for treatment of a particular disease should always anticipate complications arising from
the procedure which may be established medical procedure for treating the disease by way of
operation or otherwise and should always be ready and attentive to the complication as
sometimes post operative complication are of such magnitude and fatal and sometimes being
cause for permanent disability like the one in question. It is not a case of a doctor who was not
skilled or competent to undertake the treatment of a patient. It is a case of only delay in not
treating the patient or anticipating the complication even on the day when the patient
returned to the doctor i.e. on 18-04-2003. But unfortunately the delay proved very costly as the
complainant lost vision in the right eye. It is not a case where the patient lost vision due to some
faulty operation of the eye or wrong line of treatment.
28. For the aforesaid deficiency we deem that a lump sum compensation of Rs. 1 lac
besides Rs. 10,000/- as cost of litigation payable by OP No.-1 Hospital who alone is liable would
meet the ends of justice.
29. Payment shall be made within one month from the date of receipt of this order.
30. Complaint is allowed and disposed of in aforesaid terms.
31. Copy of the order as per statutory requirements be forwarded to the parties free of
charge and thereafter the file be consigned to Record Room.
32. Announced on 31st October 2008.
(Justice J.D. Kapoor)
President
(Rumnita Mittal)
Member
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