Delhi

StateCommission

CC/07/29

MRS. RAJNI JASWANI AND ORS. - Complainant(s)

Versus

VIDYA SAGAR INSTITUTE OF MENTAL AND ANR. - Opp.Party(s)

16 Feb 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision: 16.02.2018

Complaint Case No. 29/2007

In the matter of:

1. Smt. RajniJaswani

W/o Late Sh. Mahesh Jaswani

 

2. Baby Savita (minor aged 14 yrs.)

D/o Late Sh. Mahesh Jaswani

 

3. Baby Komal (minor aged 6 yrs.)

D/o Late Sh. Mahesh Jaswani

 

4. Master Dhruv (minor aged 3 yrs)

S/o Late Sh. Mahesh Jaswani

 

Complainant No. 2 to 4 (being minor)

Through their natural mother complainant No. 1

 

5. Sh. DalipJaswani

S/o Late Sh. P K Jaswani

 

All R/o M-44, Lajpat Nagar-II

New Delhi.........Complainants

 

Versus

 

1. VidyaSagar Institute of Mental Health & Neurology

1. Institutional Area

Nehru Nagar, New Delhi-65

Through Medical Superintendent

 

2. Prof. S. M. Tuli

Deptt.ofOrthapaedics Unit-I

Vimhans, 1 Institutional Area

Nehru Nagar, New Delhi-110065..........Opposite Parties

                                                                  

CORAM

N P KAUSHIK                         -                  Member (Judicial)

 

1.         Whether reporters of local newspaper be allowed to see the judgment?                   Yes

2.         To be referred to the reporter or not?                                                                  Yes

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

 

JUDGEMENT

1.         Present complaint was filed on 18.01.2007 by Smt. RajniJaswani wife of Sh. Mahesh Jaswani and their three children named Baby Savita aged 14years, baby Komal aged 6 years and Master Dhruv aged 3 years. Complainant No. 5 Sh. DilipJaswani is the elder brother of late Sh. Mahesh Jaswani. Complainant alleged that Sh. Mahesh Jaswani died on 23.06.2006 at the age of 44 years due to negligence on the part of VidyaSagar Institute of Mental Health and Neurology New Delhi (in short OP-1) and Prof. Dr.Tuli (in short OP-2).
2.         Complainant disclosed in his complaint that Sh. Mahesh Jaswani aged 43 years was enjoying good health and running the business of Chemist. On a complaint of pain in the midback region, one Dr. A Sengupta advised him to undergo MRI of LS Spine with contrast. The said test was conducted at Batra Hospital and Medical Research Centre on 09.09.2005. Sh. Mahesh Jaswani visited OP-1 hospital and consulted OP-2 Dr. S M Tuli who diagnosed Tuberculosis L2-L3 with Left Psoas Abscess Diabetes Mellitus. Dr. Tuli advised immediate surgery. Sh. Mahesh Jaswani was admitted to OP-1 hospital on 11.09.2005. He was operated upon on 12.09.2005 by Dr. Tuli. Material for tissue diagnosis for the purpose of biopsy was also taken by Dr. S M Tuli and kept with the OP-1 hospital. Sh. Mahesh Jaswani was discharged on 16.09.2005. At the time of discharge too the patient was given treatment of tuberculosis. Condition of the patient started deteriorating after surgery and the pain in the back was intolerable. Prior to surgery, the patient was allegedly doing all his jobs but after his discharge from the hospital on 16.09.2005, he could not go to the washroom for 2-3 days. Thereafter the patient became bedridden. Dr. S M Tuli assured that there was no reason for worry as it was normal in a case of tuberculosis.
3.         Complainant further submitted that he took Sh. Mahesh Jaswani to OP-1 hospital on 27.09.2005. Dr. S M Tuli removed stitches and continued with the treatment of tuberculosis. The patient Sh. Mahesh Jaswani could not even move to the washroom to answer the call of nature. On 19.10.2005, Dr. S M Tuli advised certain tests and assured that the condition of the patient would improve. On 20.10.2005, family members of Sh. Mahesh Jaswani met Dr. S M Tuli and explained his deteriorating condition. Dr. S M Tuli advised continuation of treatment for tuberculosis.  Again on 01.12.2005 and 10.12.2005, patient was again taken to OP-1 hospital and shown to Dr. S M Tuli. Now the patient was not even able to control his urine and stool.
4.         On 27.12.2005 on visit to the OP-1 hospital Dr. S M Tuli was not available. In his place Dr. VarunKapoor was working. Dr. VarunKapoor inspected the histopathology report dated 16.09.2005 and was shocked to see that Sh. Mahesh Jaswani was suffering from cancer (undifferentiated tumor-Maligant Fibrous Histiocytoma, Liposarcoma, Lymphoma). Reports of the patient were also got examined from the doctors of Spinal Injury CentreVasantKunj Delhi. They too diagnosed the patient as a case of cancer. They opined that due to surgery, the condition of the patient had deteriorated. Patient was taken to the AIIMS on 03.01.2006 where the treatment for cancer by way of radiotherapy/chemotherapy started. Doctors suggested that had the tumor been not touched, it would have been cured by radiotherapy/chemotherapy. The patient would have survived and lived a normal life for the next 30-40 years. Sh. Mahesh Jaswani however died on 23.06.2006. Complainant alleged that the treatment for cancer started very late and the case became highly complicated due to the wrong treatment given by the OPs. Family members of the deceased lodged complaint with the Medical Council of Delhi and Delhi police. On 24.10.2011 Ld. MM took cognizance of the complaint. On the basis of the aforesaid allegations, the complainants sought compensation to the tune of Rs. 50,00,000/- from Vimhans Hospital (OP-1) and Dr. S M Tuli (OP-2).
5.         Defence raised by OP-1 was that Dr. S M Tuli (OP-2) after hospitalization of the patient on 11.09.2005 had diagnosed as under:

“best fits as tuberculosis, cannot exclude mitotic, advised debridement and tissue diagnosis’,

OP-1 submitted that “pending the tissue diagnosis, anti-tuberculosis drugs were started to fill therapeutic gap.”

 

6.         Patient was advised operation on the basis of MRI for tuberculosis. There was no delay on the part of the treating doctor who immediately conducted debridement operation on 12.09.2005 for tuberculosis. Tissues for biopsy were taken. OP-2 had taken all steps to rule out cancer.
7.         Main contention of OP-1 is that the attendants of the deceased on their own took the tissue for getting biopsy report from Outsourced Diagnostic Centre. The patient was discharged on 16.09.2005. It was the responsibility of the complainants to have collected the reports from the Diagnostic Centre and show the same to the doctors. Complainants themselves collected the biopsy report from the center but failed to show the same to the treating doctor i.e. OP-2 for reasons best known to them. It was only on 27.12.2005 that the complainant showed the report to the doctor and that too very reluctantly. Submission of the OP-1 is that in the absence of biopsy report treatment of cancer could not be started. After seeing the report on 27.12.2005, patient was referred to medical oncologist.
8.         OP-1 further submitted that undifferentiated malignancy was poor and the patient had already advanced malignancy at the time of reporting to the hospital.
9.         Defence raised by OP-2 Dr. S M Tuli is that no report of cancer was available till the patient brought biopsy report on 27.12.2005. On the basis of MRI, the patient was advised operation for tuberculosis. OP-2 also took the stand that the patient’s attendants took the tissue for getting biopsy report from Outsourced Diagnostic Centre. It was the responsibility of the complainant to have shown the reports to the doctor. In the absence of biopsy report, anti-tuberculosis drugs were continued.The treatment was commenced on the basis of the case history clinical presentation, initial investigation and on the basis of the provisional diagnosis.
10.  OP-2 admitted that on 27.12.2005, the patient was attended by Dr. VarunKapoor who asked for histopathology report. Biopsy report was shown to the attending doctor who advised and referred the patient to medical oncologist. Contention of the OP-2 is that the complainants themselves were guilty of delay in keeping away the report of biopsy till 27.12.2005. Test was got done from a place other than Vimhans Hospital. Treatment record from 03.01.2006 to 23.06.2006 was suppressed. OP-1 and OP-2 both relied upon the expert’s opinion dated 28.09.2007 given by Delhi Medical Council. Expert’s opinion was also given by the Medical Council of India on 12.02.2009.
11. On the basis of the complaint made by the complainant Sh. DilipJaswani, Delhi Medical Council vide its letter dated 28.09.2007 submitted the experts’ opinion. The same is reproduced below:
6698606.  

“The Delhi Medical Council examined a complaint of ShriDalipJaswani, alleging medical negligence on the part of respondents 1 & 2, in the treatment administered to complainant’s brother late Mahesh Jaswani (referred hereinafter as the patient) at VIMHANS (Regd. No. 83467). Delhi Medical Council perused the complaint, joint written statement of Dr. S.M.Tuli and Dr. R.P.Arora, Chief Administrator, VIMHANS Hospital, copy of medical records of VIMHANS Hospital and other documents on record. The following were heard in person:-

1. ShriDalipJaswani             Complainant
2. Shri Vijay Jaswani           Brother of the complainant
3. ShriManoharJaswani       Brother of the complainant
4. Dr. S.M.Tuli                     VIMHANS
5. Dr. VarunKapoor             VIMHANS
6. Maj. Gen. (Dr.) R.P.Arora ChiefAdministrator, VIMHANS

Briefly stated the facts of the case are that the patient with complaints of pain in mid back region was admitted in VIMHANS Hospital on 11.9.2005. Respondent No. 1 after examining the patient and MRI of L.S.Spine Contrast film dated 9.9.2005 diagnosed the patient to be suffering from Tuberculosis L2-L3 with left Psoas Abscess with diabetes mellitus. The biopsy was done on 12.09.2005 by respondent no. 1 and patient was discharged on 16.09.2005 on Anti-Tubercular Treatment.

The biopsy report dated 16.09.2005 of NMC Imaging & Diagnostic Pvt. Ltd. which was suggestive of “underdifferentiate Tumor? Malignant fibrous histiocytoma?Liposarcoma? Lymphoma was brought to the notice of Dr. VarunKapoor on 27.12.2005 when the patient visited VIMHANS with complaints of pain in lower limbs and difficulty in walking. Thereafter the patient was referred to medical oncologist. Patient subsequently received radiotherapy/chemotherapy at AIIMS but unfortunately succumbed to the disease on 23.6.2006.

It is alleged by the complainant that respondent no. 1 made the wrong diagnosis and administered wrong treatment which constitute an act of medical negligence.

Respondent no. 1 & 2 in their written statement has averred that the diagnosis of tuberculosis was made on basis of history, family history of tuberculosis and medical report, but since tumorous pathology could not be excluded, hence patient was advised biopsy for obtaining tissue for diagnosis. It is observed that the diagnosis of tuberculosis L2-L3 with left Psoas Abscess made by respondent no. 1 at the time of admission based upon the clinical condition of the patient and medical reports submitted by the patient particularly MRI of LS Spine dated 9.9.2005 and the subsequent biopsy conducted for tissue diagnosis, was in accordance with the accepted professional practice in such cases.

It is, however, disconcerting to note that the biopsy report dated 16.9.2005 of the tissue sample obtained on 12.9.2005, was brought to the notice of the doctor namely Dr. VarunKapoor on 27.12.2005 and thereafter the diagnosis of malignancy made. It appears that neither the doctor/hospital nor the patient bothered about biopsy report before 27.12.2005. Respondent 1 & 2 in their reply maintained that the biopsy report was collected by the patient’s relative directly from the diagnostic center and was shown to the treating consultant on 27.12.2005. It is observed that since the biopsy turned out to be a highly malignant tumor, the outcome in this patient might have been almost the same. The initiation of ATT would not have contributed adversely to the natural progression of the tumor. Even though there is no medical negligence, the apathy exhibited by the respondent no. 1 & 2 in respect of biopsy report even when the patient visited VIMHANS Hospital on 27.9.2005, 19.10.2005, and again on 1.12.2005 and 10.12.2005 as is apparent from O.P.D. card of VIMHANS hospital, is very shocking and reflects the total lack of coordination in the hospital set up. VIMHANS Hospital is advised to re-visit the present systems in place and initiate corrective measures to ensure better coordination so that the patients are afforded comprehensive treatment.”

 

12. Medical Council of India during the pendency of the present proceedings vide its letter dated 12.02.2009 gave expert’s opinion. Relevant portion of the letter is reproduced below:

I am directed to state that the above mentioned matter was considered by the General Body of the Council at its meeting held on 13/11/2008 and it was decided as under:

“After due deliberations, the members of the Council decided to issue a displeasure to Dr. S.M.Tuli and also to be very careful in future while communicating with the patients and attendants.”

 

In view of above, you are hereby directed to be very careful in future while communicating with the patients and attendants.

 

13. With the aforesaid spectrum of submissions and counter submissions, a question arises what are the issues to be adjudicated upon by this Commission. I am assisted by the case ofPostgraduate Institute of Medical Education and Research Chandigarhv. Jaspal Singh&Ors., (2009) 7 Supreme Court Cases 330. Relevant paras of the judgment are 19, 22 and 23. The same are reproduced below:

“19…..With regard to the professional negligence, it is now well settled that a professional may be held liable for negligence ifhe 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. It is equally well settled that the standard to be applied for judging whether the person charged has been negligent or not; would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

20…… In Jacob Mathew as well as Martin F.D’Souza this court quoted with the approval the opinion of MacNair, J. in Bolam v. Friern Hospital Management Committee.

“…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.”

21….In Hucksv. Cole Lord Denning stated that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. Lord President (Clyde) in Hunter v. Hanley observed that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.”

 

14. Before proceeding further, let us examine the defence raised by the OP hospital and the treating doctors. Both of them want this Commission to believe that they were not guilty of any kind of ‘commission’ or ‘omission’. At the first instance, as referred to above, stand taken by them is that it was the duty of the patient or his attendants to collect the biopsy report from Outsource Diagnostic Centre. The patient was discharged on 16.02.2005. He was seen thereafter in OPD by OP-2 Dr. S M Tuli on 27.09.2005, 19.10.2005, 01.12.2005, 10.12.2005 and 27.12.2005.
15. Complainants stated in their complaint that on 27.12.2005 when the husband of the complainant no. 2 visited the OPD, Dr. S M Tuli was not available. The patient was examined by Dr. VarunKapoor. After seeing the histopathology report dated 16.02.2005, Dr. VarunKapoor was shocked and surprised as to how the patient was given treatment of tuberculosis though the report indicated the undifferentiated tumor-Maligant Fibrous Histiocytoma, Liposarcoma, Lymphoma (symptoms of cancer). (Paras 6 O and P of the complaint). In correspondingparas of reply to the complaint, Dr. S M Tuli(in its written version) stated that on 27.12.2005, he being away the patient was attended and seen by Dr. VarunKapoorof his unit. He asked for histopathology report which the family members had reluctantly shown in the presence of the patient. Dr. S M Tuli stated that the biopsy report was shown to the attendants. In their rejoinder, complainants denied the allegations. They stated that when Dr. VarunKapoor asked for the report, he was informed that it was lying with the lab of OP-1 hospital. It was on his asking that the report was collected from the lab and shown to Dr. VarunKapoor (corresponding paras (o) (p) (q) of the rejoinder.
16. It is now clear that in the follow-up of surgery Dr. S M Tulidid not bother to have a look at the biopsy report on 27.09.2005, 19.10.2005, 01.12.2005 and 10.12.2005. It is an admitted case of the parties that on 27.12.2005, Dr. S M Tuli was on leave and in his absence the patient was seen in OPD by Dr. VarunKapoor. Dr. VarunKapoor demanded biopsy report. He was told by the staff that the report was still with the lab. It was collected and then shown to Dr. VarunKapoor who found the report to be positive of cancer. The plea raised by Dr. S M Tuli and OP-1 hospital, that the relatives of the patient were reluctant to show the report which is only an alibi to escape the liability. Again the plea that the lab of the hospital was an outsourcedagency, is of no avail. The principle of vicarious liability is that a person who does the thing through another does it himself.Qui facit per aliumfacit per se.Second principle on which a master’s liability is fixed is that of ‘respondeatsuperior’ i.e. let the superior beresponsible.When a person puts another in his place to do an act in his absence he is answerable for the wrong of the person thus extended. Assuming that the lab of the hospital was an outsourced center, it is not the case of the OPs that they had informed of it to the parties or their relatives. It is not denied by either OP-1 or OP-2 that after surgery the sample for biopsy was retained in the operation theater itself. It was sent by the hospital to the lab. Thereafter both the hospital and the treating doctor remained careless in linking the biopsy report with the medical papers of the patient. As discussed above, absence of the report came into light only when Dr. VarunKapoor saw the patient in OPD on 27.12.2005. It was on Dr. VarunKapoor’s asking that the report was collected.
17. Delhi Medical Council in its expert’s opinion (reproduced above) observed that it was shocking that the biopsy report was seen only on 27.12.2005. Experts further observed that there was a total lack of coordination in the hospital setup. OP-1 hospital was thus guilty of negligence. Now coming to the allegation of negligence against Dr.  S M Tuli, the doctor did not bother to ask for the report on patient’s visits on 27.09.2005, 19.10.2005, 01.12.2005 and 10.12.2005. Doctor continued with the treatment of tuberculosis only. Medical Council of India issued displeasure against Dr. S M Tuli in its expert’s opinion. Had Dr. S M Tuli asked for biopsy report, there was no reason for the patient or his relatives to be reluctant to show the same to him. Now a question arises whether the omission on the part of Dr. S M Tuli to look into biopsy report amounts to medical negligence or not. The patient was operated upon on 12.09.2005 when tissue sample was taken. After discovery of the fact that the patient was suffering from cancer by Dr. VarunKapoor on 27.12.2005, he was referred to the medical oncologist. Patient went to AIIMS but unfortunately succumbed to the disease on 23.06.2006. Obviously from 16.09.2005 (when the biopsy was not available) uptil 27.12.2005, everybody including the treating doctor remained under the impression that the patient was suffering from tuberculosis for which the treatment continued to be given.  Whether during this period the disease of cancer progressed and if so to what extent is the question. Whether ATT (Anti TB Treatment) contributed adversely to the natural progression of the tumor is opined in the negative by the Medical Council of Delhi. Be that as it may, it is clear that in the absence of treatment of cancer during the relevant period, the disease continued growing by leaps and bounds, this being the nature of the disease of cancer. Of course there is no scientific reason before us for drawing inference of correlation between absence of treatment of cancer during the relevant period and the death of the patient. There is no denial of the fact that the treatment for cancer would have atleastprolonged the life of the patient, if not cured absolutely. I place reliance upon the case of the Post Graduate Institute of Medical Education and Research v. Jaspal Singh (supra). Para 23 of the judgment (reproduced above) is relevant in the present context.
18. In view of the discussion above, I am of the considered opinion that both the OP-1 i.e. Vimhans Hospital and OP-2 Dr. S M Tuli are guilty of negligence. OP-1 Vimhans Hospital is directed to deposit/pay an amount of Rs. 20,00,000/- in Consumer Welfare Fund of the State maintained by this Commission. Out of this amount, an amount of Rs. 5,00,000/- shall be paid to the complainants. OP-2 Dr. S M Tuli is directed to pay an amount of Rs. 2,00,000/- to the complainants for medical negligence on his part. The abovesaid payment shall be made by the OPs to the complainants within a period of sixty days from today failing which the amount shall carry interest @ 18% p.a. after the expiry of the said period. Complaint is accordingly disposed of.
19. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

 

(N P KAUSHIK)
MEMBER (JUDICIAL)