Failure of treatment not ground for negligence: Consumer Court exonerates Delhi based gynaecologist, hospital
New Delhi: Observing that there was no evidence to prove medical negligence, the Delhi State Consumer Disputes Redressal Commission (SCDRC) recently exonerated a gynaecologist and a Delhi based Hospital as the complainant could not submit any evidence on record to prove negligence.
It was the allegation of the patient that she suffered problems in her hand because a staff nurse of the hospital gave her a Metro 100 intramuscular injection and not intravenous.
However, the State Commission noted that failure of the treatment is not a ground for negligence and noted, "only the failure of the treatment is not prima facie a ground for Medical Negligence and in order to attract the principle of res ipsa loquitur, Negligence i.e. the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do, should be clearly evident from the record."
"It is further noted that the appellants gave appropriate treatment for 'Compartment Syndrome' to the respondent free of cost, which includes daily dressing and medication even after her discharge from the hospital but the respondent visited the appellants regularly only for 5-6 days after discharge and thereafter, stopped visiting the appellants. Looking into the aforesaid events, it is clear that the appellants had exercised due care and caution in treating the respondent," further noted the Commission.
Therefore, setting aside the order of the District Forum, which had earlier held the doctor and the hospital guilty, the Commission gave them clean chit.
The history of the case goes back to 2012 when the complainant approached the Mavi Hospital during her pregnancy. She remained under the care of Dr. Deepali Bisht and consequently gave birth to a child at the Hospital, through operation. Following this, the staff nurse allegedly gave metro 100 injection (intramuscular not intravenous) to the complainant. Following this, the complainant's hand started to swell and she suffered innumerable pain.
Although several medicines were given to her by Dr Bisht, her condition kept worsened. As per the complainant, finding no way out, she had to seek treatment from another doctor, to whom she could not produce the treatment records. It was alleged that the first hospital and Dr Bisht did not provide her with any documents as they claimed that the documents were with a senior doctor, who was on leave. Thereafter, the complainant sent notice to them, filed police complaint to ACP and SCP, however, to no avail.
She alleged that despite severe unbearable pain and swelling in the hand, the treatment records were not provided by the hospital and the doctor. This way, due to their negligence, the life of the complainant allegedly got ruined, as she became unable to perform any household chores and has become totally dependent upon others. Alleging medical negligence, deficiency in service, unfair trade practice, consequent harassment, mental pain and agony by the Hospital and the doctor, the Complainant approached the District Forum in Delhi and sought compensation of Rs 18 lakh along with litigation cost.
After considering the complaint, the District Forum held the doctor and hospital guilty and noted, "On the basis of above findings we are of the view that though OPS do have required professional skill and competence but their conduct fell below the standards of care, required from a reasonably competent doctor. Thus, there is clear cut negligence on the part of OPS. Due to which even after best efforts the problem in arm, hand and fingers of the complainant could not be cured and has. become permanently disabled while still she has a longlife to pass and responsibility of her children and she has been left only as a helpless victim of OPs' negligence. Therefore, holding OPs guilty for, deficiency in service as well as, adopting unfair trade practice we direct both the OPs to pay to complainant, jointly and severally."
Aggrieved with the order of the District Forum, they approached the State Commission in Delhi and contended that the District Forum had failed to appreciate two medical opinions, where they had been exonerated from any kind of medical negligence. It was further their contention that the District Forum had failed to appreciate the fact that there was no evidence which would show that Metro 100 intramuscular injection had been given to the patient, resulting in the damage.
While considering the question if the doctor and the hospital were negligent, the State Commission referred to Supreme Court judgment in the case of C.P. Sreekumar (Dr.), MS (Ortho) vs. S. Ramanujam, where the top court had held that the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. The top court had also clarified that merely making a claim, which is denied by the other side, cannot be considered as evidence.
The State Commission also referred to the Supreme Court order in the case of Harish Kumar Khurana vs. Joginder Singh and Ors., Jacob Mathew v. State of Punjab and Anr., and Martin F. D'Souza v. Mohd. Ishfaq. Referring to these, the bench noted,
"From the aforesaid dicta of the Hon'ble Apex Court, it is clear that only the failure of the treatment is not prima facie a ground for Medical Negligence and in order to attract the principle of res ipsa loquitur, Negligence i.e. the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do, should be clearly evident from the record."
It was observed by the State Commission that even though the complainant claimed Metro 100 injection was given intramuscular and not intravenous, she failed to submit any evidence in this regard.
"Even the material available before us does not show that the said injection was given intramuscular to the respondent and the same had caused damage to the respondent. Therefore, this Commission cannot presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence," noted the Commission.
Referring to the medical record, the Consumer Court noted,
"It is clear from the record that a 'Cannula' (a thin tube inserted into a vein or body cavity to administer medication, drain off fluid, or insert a surgical instrument) was inserted in the right hand of the respondent on the very day of her admission. After about 4-5 hours of the uneventful birth of child thorough C-sec, the respondent complained of acute swelling and pain over her right hand around cannula. It is noted that the respondent was attended by the appellant no. 2, immediately cannula was removed from the right hand and placed on the left hand of the respondent. Moreover, an anaesthetist and orthopaedic surgeon was called for opinion by appellants."
"It is further noted that the appellants gave appropriate treatment for 'Compartment Syndrome' to the respondent free of cost, which includes daily dressing and medication even after her discharge from the hospital but the respondent visited the appellants regularly only for 5-6 days after discharge and thereafter, stopped visiting the appellants. Looking into the aforesaid events, it is clear that the appellants had exercised due care and caution in treating the respondent," further noted the Commission.
The bench also referred to the medical opinion and observed,
"Perusal of the medical opinion dated 30.01.2013 reflects that swelling in the right hand of the respondent was possibly due to extravasations of some drug given intravenously and the actions taken by the appellants were appropriate. Another medical opinion dated 16.03.2015 passed by Delhi Medical Council also exonerated the appellants from any medical negligence and observed that the swelling in the right hand was due to accidental displacement intravenous cannula and extravasations of intravenous fluids, which is known to be a post- surgical complication."
"None of the two medical opinions suggested that the swelling in the right hand was due to any injection administered intramuscular to the respondent. It is further noted that neither any document is available before us, which could verify that the respondent is not capable of doing daily chores from her hand and became dependent on others nor any disability certificate is produced by the respondent from a competent hospital," it added.
Therefore, setting aside the order of the District Forum, the State Commission noted,
"In view of the forgoing, we hold that there exists no negligence on the part of the appellants as they had exercised due care and caution in treating the respondent and the treatment given by them was proper and acceptable at that point of time."
To view the order, click on the link below.
https://medicaldialogues.in/pdf_upload/delhi-state-commission-181512.pdf
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