DR. S. M. KANTIKAR, MEMBER

1.    The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act,1986 (in short “the Act”) by the legal heirs of the deceased – Sq. Ldr. N. K. Arora against the Opposite Parties namely Army Hospital (R&R) (AHRR), Air Force Hospital, Hindon and All India Institute of Medical Sciences (AIIMS) for alleged medical negligence and deficiency in service.

2.     Initially the Complaint was filed by Sq. Ldr. N. K. Arora, working as a Commissioned Officer in the Air Force (since deceased, hereinafter referred to as the ‘patient’).  He, while commanding an Air Force ‘Convoy’ from Jaisalmer to Gwalior in Rajasthan, on 13.05.2004, on way to Gwalior near Dausa, met with major road accident at about 8 p.m. His Maruti Gypsy rammed into the Camel-Cart with full of wooden-logs. He suffered injuries on face and chest and was taken to Civil Hospital at Dousa and thereafter referred to SMS Hospital, Jaipur. The doctors at SMS hospital informed that he suffered fracture mandible and ribs, but there was no head injury. The patient was accompanied with his Air Force officers including SMO 795 SU and SMO AF Station Hindon. After first-aid, for better treatment on the next day i.e. on 14.05.2005, he was airlifted to AHRR at Delhi Cantt and was admitted at 11.00p.m. in ICU under Dangerously Ill List (DIL) and was put on ventilator. The doctors therein instructed for “Care of ET tube (endortrachial tube) connecting ventilator. Regular Suction of ET” (for clearing airways). The CT Skull was performed at SMS Hospital and as per the report, there was no evidence of Epidural or Subdural haemorrhage or fracture (EDH, SDH), thus there was no bleeding inside the brain.

3.     On 15.05.2004, throughout the day, the patient was conscious, well oriented and was talking to doctors and his parents. The Complainant narrated the events on 15.05.2004 as below:

At 6.30 a.m., Dr. P. S. Bedi recorded in clinical notes as:

“Fracture mandible, Chest injury, minor head injury

Hypoxicencepxiopathy

Case reviewed . Fully conscious. On ventilatory support,

ET Tube in SITU.”

Thereafter, at 8.00 a.m., Dr. Bhatoe and Dr. S. K. Roy Chowdhury, a Specialist in Oral and Maxillo Facial Surgery, examined the patient and recorded the clinical notes as:

“Case of RTA with fracture mandible with fracture 3,4,5 ribs (right)

O/E. Gcs - E-4 VT M 6

Patient on ventilatory support CPAP Mode”

The diagnosis made was Maxillo Facial Injury, multiple rib fracture and undisplaced fracture C-2. The plan for ORIF on stabilisation and asked clearance from Neuro Surgery. Thereafter, Dr. Barar examined the patient at 8.30 a.m.

At 11.00 a.m., the patient was examined by Dr. Chaturvedi and made clinical notes as:

“Since this morning the patient was weaned off;, from ventilator and endotrachial tube was removed at 1000 hrs. (Extubation trial as red rubber tube required change). He has been maintaining ventilation and saturation.-. Respiratory system - Normal vascular sounds"

He advised to maintain SPO₂ and watched for respiratory distress. In the night at 9.00 pm, Dr. Barar was called to see the case. He found the patient was in distress and restless, not obeying commands and SPO₂ decreased to 60% and then to 40%. He found difficulty in Laryngoscopy and fixing the ETT. Patient was immediately intubated with 7'.5 mm PVC, ETT. He discussed the findings with Dr. Chaturvedi, who came to examine the patient at 10.00 p.m.

4.     On 16.04.2004, Dr. Rohit Kumar, the resident Surgeon examined the patient between 9.30 a.m. to 10.00 a.m. Thereafter, at 11.00 a.m., Dr. Chaturvedi examined the patient. It was alleged that at 9.30 a.m., Dr. Chaturvedi met the patient’s parents and told about the improvement and also informed that the patient shall be off the ventilator soon. He recorded the findings in the case sheet, at 11.00 a.m., as: 

“Patient pulled out the endotracheal Tube, had fall in SPO2, Cardiac Arrest, HR 38 per minute. Reintubated, Cardiac massage settled down over next 20 minutes…”

It was further alleged that at about 12 noon, Dr. Chaturvedi came out of the ICU, but did not tell the real facts or condition of the patient, but he simply expressed them that “After all we human beings, galti ho hijati hai. And later on the parents were informed that the patient had suddenly gone into coma. It was further alleged that the theory of "self extubation” was falsely created by Dr. Chaturvedi and it was a complete eye wash of gross medical negligence committed in the AHRR.  The condition of the patient was stabilized and he was put on continuous ventilator support with 100% SPO₂.

5.     It was further alleged that the AHRR  case record was tampered at many places to cover up their gross negligence. The entries of doctors at SMS Hospital and RR hospital did not match.  Lt. Col. H S Bhatoe's diagnostic note dt.15.05.04 mentioned about Maxillofacial Injury, multiple Rib Fracture, Subluxation C2-C3 but does not mention about Head Injury. Also CT scan dt.17.5.04 and  MRI (dt.28.06.04, 02.07.04, 24.09.04)  do not mention any head injury. But K.K Sen (Radiologist) in MRI dt.12.08.05 mentioned that "in a follow up case of 'head', injury' as compared with previous MRI 3438 of 24.09.04.  Therefore, the false insertion of 'head injury' in hospital records was made by the Opposite Party No. 1.

6.     It was further alleged that the medicine IV Astymin, an expired medicine (March 2004) was administered on 24.07.2004 and it was not intentionally recorded in the case sheet or in the treatment chart. The complaint was made to Dr. Chatrurvedi, but he was so casual towards it. Further alleged that on 26.07.2004 contaminated wrong blood was transfused, which resulted in severe allergic bodily reaction.

7.     In the intervening night of 25/26.02.2005, the patient fell down from the bed due negligence of staff and he suffered fracture of right arm and shoulder with severe bruises on back which subsequently turned into deep abscesses. The patient was not provided special attendant in the hospital and he was transferred prematurely to Army Hospital at Hindon. The patient’s father had heated arguments with the Ward In-charge Col. Sandhu and then on 13.03.2005, the patient was referred to the Neuro-physician and Orthopaedic surgeon. Col. Pande (Ortho) without doing X Ray of the shoulder and asked his attendant to put ‘Kacha Plaster' on arm, but it wrongly plastered. In the meantime, Dr. Saroha of VIMHAN’s, visited patient and suggested to start Baclofen (a muscle relaxant) and Hyper Baric Oxygen Treatment (HBOT) at Apollo Hospital for active physiotherapy.  As agreed verbally Baclofen was started in June 04, but it was stopped by the ward nurse on 16.03.2005 and again started from 25.03.2005, after repeated requests to Col. Sahoo. It was alleged that irritated Col. Sahoo asked Lt. Col. Bhotoe to recommend patient’s discharge from Hospital and transfer to Air Force Hospital' Hindon. It was done in the name of HBOT knowing fully well that at Hindon Air Force Hospital had no Neurologist, no qualified physiotherapist or no special attendant. Practically the physiotherapy was stopped from Feb to June 2005 and patient's body became stiff.

8.     The Complainant further alleged negligence at Air Force Hospital for not agreeing HBOT as it was meant only for flying pilots. The effect of HBOT is more in hypoxic/ischemic states of the brain. Due to lack of physiotherapy patient’s right leg became weak and got paralyzed. On 18.08.05, Dr. Madhuri at Neurology OPD of Air Force Hospital suggested no active neuro management and referred him to Ortho OPD. On 19.8.05 patient was taken to  AIIMS  but Dr. P. P. Kotwal of Ortho  threw the Admit- card in dustbin and without examination suggested -"No ortho intervention is required", and referred the patient to PMR and  discharged from AIIMS on 27.08.05 and sent back to Air Force Hospital. The patient showed renal  stones by USG done at Army Hospital but no treatment was  prescribed. Later on the patient had to undergo surgery for stones -in PSRI through AHRR, Delhi Cantt.

9.     Being aggrieved by the gross medical negligence on the part of Opposite Parties, initially, the patient Sq. Ldr. N. K. Arora filed the Consumer Complaint with the following prayers:-

“Award due and appropriate negligence committed by the respondents compounded together to Rs.2,04,05,000/- with interest and costs as stated in Para 23 above for which the respondents are jointly and severally liable."

“Pass such other or further Orders as this Hon’ble Commission deems fit and proper in the facts and circumstances of the present case.”

During pendency of the case, the Complainant died and the legal heirs namely patient’s parents – Mr. Nand Lal and Mrs. P. Arora as Complainants Nos. 1 & 2, his wife Monika and daughter Kuhikaa as Complainants Nos. 3 & 4 were brought on record.

Defence :

10.    The Opposite Parties filed their respective written versions and affidavits of evidence. They denied the allegations of negligence. The preliminary objections on maintainability of complaint were raised. The Complaint involves disputed questions of facts which need detailed trial and the same cannot be decided in the summary proceedings under the Consumer Protection Act and the same is liable to be dismissed; only civil court can decide such kind of claims. The allegations of negligence are not supported by facts and because the Hospital is a well-equipped one to deal with serious cases.

11.   Written version of Army Hospital (R&R) - Opposite Party No. 1

AHRR doing is one of the sovereign functions of the State. It was submitted that the hospital is providing both diagnostic & therapeutic facilities to the army personnel. It was not for commercial activity. Thus the complainant is not consumer.  AHRR  further submitted that on 14.05.2004 at 11 p.m.  the patient was received at AHRR on ventilator support from Jaipur and admitted to ICU under Dangerously Ill List (DIL) and informed the relatives about risks and serious condition of patient. After admission endotracheal tube intubation  and regular suction was done. IV fluids and antibiotics were started. The patient was obeying simple commands, therefore ventilator was weaned off. The AHRR  submitted the chronology of treatment and submitted that the patient was treated as per the standards. There was no deficiency in service.

12.   Written version of Air Force Hospital, Hindon - Opposite Party No. 2:

The stretcher and ambulance service are provided for safe transfer of patients under tough terrains. The patient was safely transferred from AHRR  to Army Hospital ,Hindon on 22.01.2005 with two attendants. It was denied that untrained physiotherapist had fractured patient’s hip bone. It was further submitted that patient’s management of kidney stone was done as per standard treatment protocols.  

13.  Written Version of AIIMS, New Delhi – Opposite Party No. 3

AIIMS submitted that the complainant was not a consumer under provisions of the Act, 1986. AIIMS does not levy any charge or receive consideration for the professional services. It was further submitted the allegations made against AIIMS and the treating doctors, are wholly wild, vague, mischievous/scandalous, and unspecified.

Arguments:-

14.    We have heard the arguments from the learned Counsel for both the sides. The deceased patient’s father argued with the assistance of his counsel. Perused the material on record, inter alia, the Medical Record and gave our thoughtful consideration.

15.    Arguments from Complainant:-

The Complainant No. 1 (father of deceased) argued that the Opposite Party No. 1 refused to issue hospital records. Even after RTI, only partial and distorted records were provided.

16.    He reiterated the facts and chronology of events and deficiencies in treatment from the Opposite Parties. On 16.05.2004 at around 10.30 a.m., due to extubation, the patient suffered cardiac arrest. On enquiry, they were told that the patient pulled out the ET tube and as a result he oxygen supply was cut off and therefore, suffered cardiac arrest. There was a gap of 20 minutes for resuscitation, which was long enough to develop cerebral hypoxia due to damage to the brain cells. Thereafter, the patient’s condition started deteriorating, pulse rate and blood pressure were fluctuating, he showed more myoclonic jerks. After prolonged treatment for 2 months his vital parameters were under control but he did not regain consciousness. The doctors at AHRR simply relied upon the CT scan done at SMS Hospital, Jaipur, but did not do MRI scan for such a long-time. After lot of persuasion first MRI scan was done on 28.05. 2004 and 02.07.2004.  The MRI scan report did not indicate any major defect in the brain. It indicated subdural hygroma. (Water accumulation) and ventricular dilation, those could be due to prolonged ventilation. Col Prakash Singh, Sr. Advisor (Neurology) department did not take any efforts to rehabilitate the patient but openly told that patient had gone into coma due to brain injury and  no chances of revival. Thus, AHRR totally ignored the patient.

17.    Arguments of the Opposite Parties Nos. 1 & 2 : 

The learned Counsel for the Opposite Parties Nos. 1 & 2 argued on maintainability of complaint as barred by limitation, as the patient was treated at Opposite Parties Nos. 1 and 2 from 14.05.2004 to 26.07.2005. Therefore, the cause of action was 26.07.2005, but the instant Complaint was filed in July, 2008 i.e. 3 years beyond limitation. The AHRR and Air Force Hospital, Hindon, being under the Ministry of Defence Central Govt., provides free services. They discharge their services as a part of sovereign function. He relied upon the judgment of Hon’ble Supreme Court in "Indian Medical Association Vs. V.P. Shanta & Ors."[1]

18.    The learned counsel further submitted that the RR hospital is the tertiary care hospital of Indian Armed Forces equipped with the updated equipments and technology. Similarly the Army Hospital at Hindon had modem facilities. The patient was treated by the competent doctors having skills. He relied upon judgments of Malay Kumar Ganguly Vs. Dr. Sukumar Mukheijee[2]; Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Center[3].

19.   Arguments from  AIIMS, New Delhi –Opposite Party No. 3

The learned Counsel submitted that AIIMS is a Govt. institute under Central Govt. and providing free services. Therefore, the complaint against AIIMS is not maintainable.  The amount claimed by the Complainant in any event is without any basis, highly exaggerated. Therefore he prayed that the complainant as against the AIIMS be dismissed.

Discussion & Conclusion:

20.    We gave our thoughtful consideration to the arguments of the parties. Perused the medical literatures and standard text books on emergency medicine, anaesthesiology and Orthopedics, Neurology.

21.    The crux of the case is that at what time the patient suffered hypoxia. Let us analyse the Chronology of treatment given at AHRR. On careful case sheet- the clinical notes of Dr. Chaturved that  on 15.05.2004 at 11.00 a.m,   the SPO₂ was 98%. Thereafter, till  9 p.m. there was no single entry seen in the clinical notes. At 9 pm SPO₂ decreased from 60% to 40%. The patient was immediately intubated. Thus such medical record  creates doubt on the  monitoring of ICU patient. On 16.05.2004 at 11.00 a.m., the patient pulled out the ETT and therefore, SPO₂ level fell down. The patient suffered cardiac arrest and subsequently, cerebral hypoxia. There is no cogent record to say how long the patient was in extubated

22.    We have perused the entire medical record maintained by the AHRR. The crucial entries of SPO₂ values on 15.05.2005 and 16.05.2005 are missing. Most of the entries are erroneous. The clinical notes dated 16.05.2004 revealed at 8.30 a.m., the patient was comfortable on ventilator. At 11.00 a.m., it was recorded that (Pg 70 – Part - I) the patient pulled out ETT and fall in SPO₂ with cardiac arrest. Thereafter, he was re-intubated and the cardiac massage was given. His heart rate was 190 per minute and BP 200/130 mm and it was settled down over the next 20 minutes. Surprisingly, the next page 71 showed the entry pertaining to 14/3/2005. Thus , clearly it shows haphazard maintenance of record. Even the daily progress chart was not properly maintained. The daily progress treatment chart dated 16.05.2004 that (Page 134) wherein  the SPO₂ values from 8.00 a.m. to 1.00 p.m. are not visible. We would like to quote that ‘good medical record is good defence, poor medical record is poor defence and no medical record is no defence’. Thus, the poor record maintenance at AHRR  becomes poor defence.

23.  The dates in the case sheet are not matching with the sequence of  treatment  e.g. patient was treated in “2004”, but most of the records show entry as “2005”, [pg 50A  – Part – I / Vol – II]. It creates strong doubt  about tampering of record and/or prepared as fresh, afterthought. Some entries are reproduced as below:

24.    Therefore, in our considered view, the patient had suffered hypoxia due to extubation for more than 5-10 minutes and it subsequently progressed into coma and patient became vegetative. It is also evident about number of glaring discrepancies in the recording of vital parameters, SPO₂ level. Improper and haphazard maintenance of medical record suggests about tampering. The patient kept under sedation and on ventilator support with regular suction. They performed trial extubations / intubations several times, resulted into coma. It is also evident that the patient fell down from the bed on 26.02.2005 and sustained fracture of right arm and shoulder, it further prolonged hospitalisation.

Law on Medical Negligence

25.    While elaborating on medical negligence, the Hon’ble Apex Court observed as follows (abridged):

Negligence is a ‘tort’. Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as ‘implied undertaking’ by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. 

The concept of duty of care has been discussed in several judgments on medical negligence in India and other courts worldwide. The Hon’ble Supreme Court in Kusum Sharma and others v. Batra Hospital and Medical Research Centre & Others.[4] held that the breach of expected duty of care from the doctor, if not rendered appropriately, it would amount to negligence. It was further held that, if a doctor does not adopt proper procedure in treating his patient and does not exhibit the reasonable skill, he can be held liable for medical negligence. The complainant is required to prove that the doctor did something or failed to do something which is the given facts and circumstances, no medical professional in his ordinary senses and prudence.

26.    Let us examine the case on hand, whether there was any breach of duty by Opposite Party No. 2. The question remains unanswered how and why self extubation occurred in ICU. The expected duty of care  in the ICU is highest one especially at AHRR, which is the tertiary care hospital. Admittedly in the ICU , patient suffered cerebral hypoxia which him led to vegetative stage till his death.  It reflects the breach/lack of duty of care from the hospital materially contributed to the damage, that is usually sufficient to attribute negligence. As HBOT treatment (75 runs) at Apollo Hospital, there were signs of improvement, but further treatment was stopped due to lack of funds. For the same reason, the patient could not go for higher treatment to USA also. During hospitalisation the patient sustained fracture of right shoulder and further developed large bedsore.

27.    In two cases Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr[5]. and A.S. Mittal vs. State of U.P[6], the Hon’ble Supreme Court laid down details about duties of the doctor. The doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor.

28.    As discussed supra (para 25)  the doctors at AHRR failed in their duty of care towards the accident victim. Though it was major accident, patient suffered facio-maxillay injuries but, there was no evidence of head injury which was confirmed by CT scan and MRI. Thus, the root cause of hypoxia failure in duty of care in the ICU. As discussed above the medical records are not convincing about reasonable standard of care exercised by the doctors and staff at AHRR. The records at places revealed   tampering. The entirety attributes medical negligence of  Opposite party No.1.  The patient remained under treatment and hospitalisation for long period due to vegetative state.  The Hon'ble Apex Court in the case of Nizam Institute of Medical Sciences vs. Parasnath S. Dhananka & Ors.^[7], held that "once the complainant had discharged initial burden, it was incumbent upon hospital authorities to prove that they had done their duty without any negligence on their part which they have failed to do."

29.  Compensation:

In the instant case, there is no doubt that it was a major emotional crisis and most stressful event to the parents, family members due to the demise of young son (32 years). The parents are very old (77 & 69 y). Several points are to be considered before fixing the quantum of compensation. The deceased was a commissioned officer in Indian Air Force. He earned many commendation certificates for meritorious services. He was made to retire from service on 03.11.2005 and discharged from Air Force Hospital, Hindon on 03.12.2005. He left behind his old parents, wife and a daughter. The family members are entitled for pensioner’s and other benefits as per the Army rules.  In our view, few allegations of the Complainant are vague - like Inj. IV Astymin beyond expiry date was administered, the physiotherapist was non-qualified, non-provision of 24 hours attendant and wrong blood transfusion, etc. Also, we do not find any negligence on the part of the Orthopaedic and Neuro Department at AIIMS. Such vague allegations have no bearing on this instant Complaint.

30.  The Hon’ble Supreme Court in Arun Kumar Manglik v Chirayu Health & Medicare Pvt. Ltd.^[8] and in Lata Wadhwa v State of Bihar^[9] discussed on the Compensation in the medical negligence cases. No amount can be just and adequate in an absolute sense. By no stretch of imagination, the court should award a paltry sum for  gross negligence, and, the same is true the other way round – exemplary compensation need not be awarded in case of slight or normal negligence. It all depends on the circumstances and the context and the courts must be open to treating each case in a different manner so that the decisions are just, equitable, reasonable and prudent. There is no fixed solution. In the Nizam Institute case[10]  due to medical negligence of the hospital, the patient Prasant was completely paralysed. Compensation was claimed, and the matter finally reached the Supreme Court. The court did not apply the multiplier method and awarded a compensation of Rs. 1 crore plus interest.  While deciding against the multiplier method for medical negligence cases, both when a death has occurred, but particularly in a case when the victim of medical negligence has been left in a pitiable condition with no scope for improvement, the court reasoned that while determining the quantum of compensation, sympathy should not be the only guiding factor in favour of the victim. The compensation must be just and adequate, and keeping that principle in mind, one need to consider the fact that a person who has lost almost complete control over his body, there is a feeling of helplessness and resignation for the person in the entire family. It is extremely difficult to understand their plight, and the multiplier method can never do justice in determining adequate and just compensation. The Court observed:

“… Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the Court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of the thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned…. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity…. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.”

31.    Based on the discussion above and respectfully following the precedents of Hon’ble Supreme Court, in the ends of justice a lump sum compensation of Rs. 25 lakh is just and fair in the instant case. Accordingly, the Complaint is partly allowed. The Opposite Party No. 1 is directed to pay Rs. 25 lakh with interest @ 9 % per annum from the date of filing of this Complaint till its realisation to the Complainants. The amount awarded shall be shared / devolve among the Legal Heirs as per Hindu Succession (Amendment) Act, 2005.