Law Web: Leading judgment on compensation for medical negligence

In P.B. Desai vs State of Maharashtra & Anr. (2013)15 SCC 481 , the ‘Duty of Care’

which a doctor owes towards his patient has been clearly explained as follows:-

“Once, it is found that there is ‘duty to treat’ there would be a corresponding ‘duty to

take care’ upon the doctor qua/his patient. In certain context, the duty acquires

ethical character and in certain other situations, a legal character. Whenever the

principle of ‘duty to take care’ is founded on a contractual relationship, it acquires a

legal character. Contextually speaking, legal ‘duty to treat’ may arise in a contractual

relationship or governmental hospital or hospital located in a public sector

undertaking. Ethical ‘duty to treat’ on the part of doctors is clearly covered by Code

of Medical Ethics, 1972. Clause 10 of this Code deals with ‘Obligation to the Sick’

and Clause 13 cast obligation on the part of the doctors with the captioned “Patient

must not be neglected”.

Having regard to what the Hon’ble Supreme Court has laid down about the ‘Duty of Care’ to be

followed by a medical professional viewed from any angle, it cannot be construed that ‘Duty of

Care’ of a treating doctor ends with the ‘Surgery’. (Emphasis Supplied)

22. This Commission has also held in P.D. Hinduja National Hospital & Medical Research

Centre Vs. Mrs. Veera Rohinton Kotwal, II (2018) CPJ 342 (NC), that the ‘Duty of Care does

not end with the Surgery’.

23. We find it a fit case to place reliance on the judgement of the Hon’ble Supreme Court in

Arun Kumar Manglik Vs. Chirayu Health And Medicare Private Limited & Anr., 2019 (3)

in which the Hon’ble Apex Court has laid emphasis on ‘Patient SCALE 333, Centric Approach’

and observed that the ‘Standard of Care’ as enunciated in the Bolam Case must evolve in

consonance with its subsequent interpretation by English and Indian Courts.

24. In Halsbury’s Laws of England the degree of skill and care required by a medical

practitioner is detailed as follows:-

“The practitioner must bring to his task a reasonable degree of skill and knowledge,

and must exercise a reasonable degree of care. Neither the very highest nor a very

low degree of care and competence, judged in the light of the particular

circumstances of each cases, is what the law requires, and a person is not liable in

negligence because someone else of greater skill and knowledge would have

prescribed different treatment or operated in a different way; nor is he guilty of

negligence if he has acted in accordance with a practice accepted as proper by a

responsible body of medical men skilled in that particular art, even though a body of

adverse opinion also existed among medical men.

Deviation from normal practices is not necessarily evidence of negligence. To

establish liability on that basis it must be shown (1) that there is a usual and normal

practice; (2) that the defendant has not adopted it; and (3) that the course in fact

adopted is one no professional man of ordinary skill would have taken had he been

acting with ordinary care.”

A doctor has a legal duty to take care of his patient. Whenever a patient visits a

doctor for treatment there is a contract by implication that the doctor will take

reasonable care to treat him. If there is a breach of that duty and if it results in injury

or damage, the doctor will be held liable. The doctor must exercise a reasonable

degree of care and skill in his treatment; but at the same time he does not and cannot

guarantee cure.

(Emphasis Supplied)

25. The Hon’ble Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009)

9 SCC 221, case has preferred Bolitho test to Bolam test . The Supreme Court redefined medical

negligence saying that the quality of care to be expected of a medical establishment should be in

tune with and directly proportional to its reputation. The decision also says that the court should

take into account patient’s legitimate expectations from the hospital or the concerned specialist

doctor.

(Emphasis Supplied)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 101 OF 2016

(Against the Order dated 27/11/2015 in Complaint No. 87/2006 of the State Commission

Maharashtra)

PANKAJ R. TOPRANI Vs BOMBAY HOSPITAL

BEFORE:

HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT

HON'BLE MRS. M. SHREESHA,MEMBER

Dated : 04 Jul 2019

Per Mrs. M. Shreesha, Member

Aggrieved by the order in CC/06/87 passed by the Maharashtra State Consumer Disputes

Redressal Commission, Mumbai (in short “the State Commission”), the Complainants namely,

Mr. Pankaj R. Toprani, Smt. Vasant Ranjit Toprani, Mr. Janak Ranjit Toprani and Mrs. Kalpana

H. Lilani have preferred this First Appeal under Section 19 of the Consumer Protection Act, 1986

(in short “the Act”). By the impugned order, the State Commission has dismissed the Complaint

holding that there was no medical negligence on behalf of the Opposite Parties.

2. The Bombay Hospital and Medical Research Centre of the Bombay Hospital Trust arrayed

as the first Opposite Party (is hereinafter referred to as “the Hospital”), Dr. P.B. Desai arrayed as

the second Opposite Party (is hereinafter referred to as “Dr. Desai”), and Dr. Sanjay Wagle

arrayed as the third Opposite Party (is hereinafter referred to as ‘Dr. Wagle’).

3. Mr. Ranjit Toprani (hereinafter referred to as “the Patient”), was operated in the Hospital by

Dr. Desai. The Patient was 73 years old and died during the pendency of the Complaint. He was

admitted in the Hospital on 26.06.2004 and operated for Carcinoma of the Sigmoid Colon. It is

averred that the Patient was recommended to Dr. Desai by Dr. J.C. Kothari, who is attached to the

Hospital. The Patient was certified fit for Surgery by the In-House Intensivists of the Hospital and

Physician Dr. Wagle , who went through the Patient’s history, which include urticaria, glaucoma

tension in the eyes, chronic depression, for which the Patient was under medication since the past

20 years. The ECG report showed that there was an old septical MI and the 2D ECHO displayed

60% pumping heart rate. It is averred that Dr. Wagle went through all the medications and

prescriptions of the Patient and certified him fit for the Surgery scheduled to be performed on

28.06.2004 by Dr. Desai. After the Surgery, the attendants and the Patient were informed by Dr.

Desai that the Operation was successful and that the Patient would be transferred to the ward.

4. It is averred that while the Patient and his family members were waiting for the personnel

to shift the Patient to the ward, to their shock, the Patient was shifted to the post-operative ICU,

which is situated on the third floor of the Hospital building. It was informed to the Complainant

and his family members that the shifting was being done to keep the Patient under observation. It

is stated that the daily notes of the Anaesthetist showed that the Patient was supposed to be shifted

to the ward. But Dr. Desai in his report noted that the Patient be shifted to the post-operative ICU,

though he had earlier informed the Patient and his family Members that he would be shifted to

the ward. The Patient was awake and was mentally disturbed and questioned as to why he was

brought there. On the next date, i.e. 29.06.2004 the Patient complained of lack of sleep and pain in

the abdomen and requested for a pain killer. At 8.45a.m., the Patient complained of throat pain,

breathlessness and of a chocking sensation.

5. While the Patient’s attendant, waited outside the ICU, unaware of the Patient’s condition,

suddenly there was a commotion inside the ICU and they saw the Patient having convulsions and

was being helped to breathe with the help of an Ambu bag. The attending Doctor, who is the

assistant of Dr. Desai informed the attendants that the Patient had suffered a Bradycardia Attack

and had to be resuscitated. The Ambu bag was replaced with the ventilator, the only one available

in the ICU. The Patient’s family members were worried and requested the attending Doctor to call

for the Cardiologist immediately and administer necessary treatment but they were informed that

he would have to wait for the Intensivists i.e. Dr. Wagle to call for a Cardiologist. But Dr. Wagle

was not available and did not turn up for a long period of time. It was only after about 2 ½ hours,

that the Patient was instructed to be shifted to the ICU on the 12 floor. It is th averred that there

was no reference made to the Cardiologist. The family members of the Patient were helpless

seeing their father continuing to have convulsions. Thereafter, the Cardiologist Dr. Satyavan

Sharma arrived after Mr. Janak Toprani, the Patient’s son requested him to attend to the Patient.

He observed in his remark that the cause of Bradycardia Attack cannot be explained. According to

him the cause of Bradycardia Attack was due to sudden pain, fear or anxiety. The matter was

referred to a Neurologist. The family members of the Patient averred that Dr. Wagle, did not find

it a fit case to refer the Patient to Neurologist, despite the fact that the Patient was having

convulsions.

6. The Patient was shifted to the ICU on the 12 th floor of the new building without the use of

any portable ventilator in spite of his being on the ventilator earlier and in spite of his being in a

state of convulsions. He was given the support of only an Ambu bag and an oxygen cylinder.

Once taken to the 12 th floor ICU, the Neurologist Dr. N.E. Bharucha gave the Patient some

medicines to stop the convulsions. It is averred that as the Patient’s condition was critical, the

Complainants did not give permission for a CT Scan as the Patient was in a state of convulsions

and it is not possible for a CT to be performed. The Patient remained in the ICU of the 12 th floor

till 07.07.2004 and thereafter he was shifted to a ward on the same floor. The Patient was

unconscious and he was examined by a team of doctors including Dr. Wagle. On 15.11.2004, the

Doctors examined him at around 9.30 a.m. and noted that there was no change in the Patient’s

condition at around 11.30 a.m. The relatives were informed by physiotherapist Dr. Ashaben

Andhyal, that the Patient has developed congestion in the lungs and Dr. Wagle shifted the Patient

to the 12 th floor ICU, where the Patient was put on a ventilator. He remained in the ICU for 8

days and thereafter was shifted to the ward on 22.11.2004. It is averred that the Patient never

regained his consciousness and remained in the Hospital till 14.02.2005 and thereafter he was

brought home and has been on the support of an oxygen concentrator. In the discharge summary

given on 14.02.2005, it was stated that the ‘Patient is unconscious in a vegetative state’.

7. It is pleaded that there was no apprehension of the surgeon prior to the operation that the

Patient would suffer from any such post-operative complications. The vegetative state is an

outcome of severe brain injury and the Patient’s heart did not show any signs of any problem for

about 17 months subsequent to the discharge. It is only on account of negligence of the Hospital

and the doctors that the Patient developed a brain injury and died during the pendency of the

Complaint.

8. In brief it is pleaded that the negligence was based on the following grounds:

Though the Anaesthetist and Dr. Desai has initially remarked that the Patient would be

shifted to the ward, he had shifted to the ICU.

The cause of the alleged Bradycardia was not explained, the respiratory problem was not

attended to immediately.

There was negligence in stopping the Patient’s anti-depressants abruptly without consulting

a Psychiatrist.

Though the Patient complained of lack of sleep and pain and did not sleep till 2 a.m., the

Doctors did not administered proper dose and did not consult a Psychiatrist.

The Patient was kept in an inadequately equipped and mismanaged ICU without proper

qualified Doctors, on account of which the Patient has to be shifted from one ICU to

another.

There is negligence in shifting the patient from one ICU situated on the third floor of one

building to another ICU situated on the 12 floor of another building th without the support

of a portable ventilator, which resulted in the Brain condition deteriorating.

Though the Patient’s condition became critical at 9 a.m., Dr. Wagle arrived belatedly only

at around 11:30 a.m. and the shifting was done at 1 p.m., by which time, the Patient’s

condition worsened.

The physiotherapy session given at 8.45 a.m. was improper and within 15 minutes the

Patient complained of breathlessness and was allegedly diagnosed of Bradycardia.

There is gross negligence in the diagnosis and the treatment of the Patient, who was active

till his Surgery and was a practicing tax advocate.

9. It is averred that the family members of the Patient suffered loss of fatherly love and

affection and seeing their father in a vegetative state for two years, they suffered mental agony

and trauma, for which they seek direction to the Opposite Partiers to pay to the Complainants, a

compensation of 98,00,000/- together with interest and costs.

10. The Hospital filed their Written Version denying the allegations of medical negligence and

only contended that it was the Complainants, who did not give permission for CT Scan and that

the entire team of Doctors have followed due care and caution in rendering treatment to the

Patient and no negligence can be attributed either to the Hospital or to the Doctors and prayed for

dismissal of the Complaint with costs.

11. Dr. Desai filed his Written Version stating that the Patient had undergone Surgery on

28.06.2004, he was absolutely normal subsequent to the Surgery; that the Surgery went on

smoothly, stitches healed nicely and therefore there is no negligence on his behalf as the Surgery

was performed by him and it was successful. It is averred that the only allegation against the

Doctor is that post Surgery he had directed the Patient to be shifted to the post-operative ICU,

when the Anaesthetist has recommended that the Patient be shifted to the ward. It is averred that

since the Patient was 72 years of age, it was only as a matter of abundant caution that he has

suggested that the Patient be shifted to ICU for monitoring for a day or so. It is stated that the

drugs that were administered from the time of admission till the time of operation are as follows:

T. Cilentra 1 od - 8am

T. Primox ½ bd – 10 am : 10pm

T. Alprax 0.5 mg bd – 8am : 8pm

T. Trazine H – ½ od – 8 pm

T. Mitaz 7.5 mg old – 10 pm

12. These drugs were withheld because of anaesthesia, which was administered and the

decision was taken by the Anaesthetist. The doctor further stated that subsequent to the Surgery

the Patient was given pain relieving injections and sedition with Tramadol and an injection of

Calmpose. The Patient was stable throughout the night.

13. It is averred that administration of physiotherapy was not done on his instructions and that it

is a normal post-operative procedure, which is carried out after all surgeries and does not require

recommendation of any doctor; the Patient collapsed due to severe Bradycardia and it appears

from the case sheet that immediate resuscitative measures were taken and that necessary drugs

were administered; that a senior Doctor from the adjoining ICCU was summoned, who promptly

inserted the endotracheal tube to maintain his breathing; the Patient was stable and upon the

advice of Dr. Wagle, he was transferred to 12 floor ICU, which had better facilities th where one

nurse is dedicated to each Patient; that on 04.07.2004 the Doctor had performed ‘Tracheostomy’

on the Patient by bedside; that the role of the surgeon is a back seat role and the Intensivist takes

over and looks after the recovery of the Patient; that despite the same, the Doctor and his team

repeatedly visited the Patient to make sure that he was being monitored properly; that the usual

pain medication (tramadol 100 mg and calmpose 10 mg) were given at 4 p.m., 10 p.m. and 2 a.m.,

respectively; that the Patient was shifted to ICU on the 12 th floor with an Ambu bag to continue

his oxygen supply, which is a normal practice and thereafter he was put on the ventilator;

Bradycardia developed due to unexplained reasons, which cannot be attributed to Surgery or any

post-operative complications. It was definitely not a result of the operation, which was performed.

The Doctor denies that the Patient suffered a panic attack and that excessive doses were given in

the postoperative phase and pleads that there was no negligence on his behalf and seeks dismissal

of Complaint with costs.

14. The third Opposite Party Dr. Wagle filed his Written Version stating that he was not aware

as to what had transpired between the Complainant and his family members and the junior Doctor

assisting Dr. Desai; that Dr. J. C. Kothari was called to the post-operative ICU before he had

reached the ICU; that he was not aware that the Patient demanded that the Cardiologist be called

immediately; that it was only on his instructions, the Patient was shifted from post-operative ICU

to the ICU on the 12 floor; the Doctor denies that he did not refer the case to th the Cardiologist;

the Patient was given support of Ambu bag and oxygen cylinder, which is a normal practice; the

medicines to stop convulsions had been started before the Patient was shifted to the 12 th floor; the

Complainants did not give permission to perform a CT Scan; the Doctor denies that on

15.11.2004 at about 11.30 a.m., he confirmed that the Patient had severe congestion in the lungs

as a result of which the Patient would be required to be shifted to the 12 th floor; that the Doctor

noted in the case papers that the Patient was suffering from lung pneumonia on that day and for

the purpose of observation he was shifted to the 12 th floor ICU; that he had no occasion to

examine the Patient after June 2005;that he is not aware of the subsequent treatment and the

discharge of the Patient as he did not examine the Patient after June 2005; that the actual cause of

the complication remained undetected because the Complainants did not cooperate with respect to

CT Scan; that on 29.06.2004 at about 10.15 in the morning, when he was taking his rounds he

received a call from the post-operative ICU on the third floor, at 10.20 a.m. he examined the

Patient; he was in the Hospital since 8.15 a.m. but only received a call at 10.15 a.m.; that before

he reached the ICU the Patient was also resuscitated by Dr. Shaikh as can be seen from the noting

made by him on 29.06.2004; the Patient was unconscious and hemodynamically stable and the

ECG did not show any fresh changes and the blood gas examination showed acidosis. It is averred

that at around 10.45 a.m. the Cardiologist Dr. Satyavan Sharma reached the ICU and confirmed

his finding, the same treatment was continued and no further drug was added. The Patient was

referred to Dr. N.E. Bharucha, Neurologist who also advised to continue Eptoin, Midazolam and

added Clonazepam. The Doctor averred that the case papers show that two hours prior to the

transfer of the Patient from post-operative ICU to the 12 th floor ICU, the Patient was in a stable

condition, his blood pressure was normal, his oxygen saturation was 60%, he was administered

anti-convulsions, his heart rate was monitored throughout the transport and the Patient’s condition

did not deteriorate during the transfer.

15. The Doctor further averred that the Patient was ventilated with an Ambu bag, as the Patient

did not require PEEP or high IE ratio to maintain oxygenation and the transport time was short. It

was a standard procedure to transport the Patient with a hand ventilator or an Ambu bag and a

portable ventilator was not used at that stage. On 15.11.2004, the Patient developed lung infection

and not severe congestion as alleged by the Complainant. The chest X-ray taken confirms this

finding. It is stated that it is not unusual for a Patient with tracheostomy for five months to

develop such an infection. Even after the Patient was discharged and till June 2005, whenever the

Complainants messaged him, he visited the Patient’s residence and examined the Patient and

suggested appropriate treatment. His advice was sought whenever necessary and he had adhered

to all standards of due care and caution and there is no negligence on his behalf.

16. The State Commission based on the evidence adduced dismissed the Complaint observing

as follows:

“18. It was contended that shifting of patient from first ICU to second ICU

without portable ventilator is negligence on the part of opponents. Learned Advocates

for the opponents argued that in the complaint itself Ambu Bag was used while

shifting the patient from one ICU to another ICU. It was contended that use of Ambu

Bag is sufficient and there is no necessity of portable ventilator. Ambu Bag is for the

same function and hence, there is no negligence on the part of the opponents. We find

much substance in the arguments of the opponents for the reason that the complainant

has not brought on record anything to show that Ambu Bag cannot be worked as alike

of portable ventilator and non-use of ventilator is negligence on the part of the

opponents and use of portable ventilator was must. It was contended that first ICU

was not adequately equipment and that is deficiency on the part of opponents.

Learned Advocates for the opponents have argued that both ICUs were well equipped.

It was contended that first ICU was post-operative ICU and hence, after operation

immediately patient was taken to said ICU and thereafter, as it was necessary to keep

the patient for longer period in the ICU, he was shifted to regular ICU and contention

of the complainant that first ICU was not adequately equipped is baseless. We find

much substance in the said argument for the reason that the complainant has not

shown what was inadequacy in the first ICU. Only because the patient was shifted

from first ICU to second ICU, it cannot be said that first ICU was inadequately

equipped. Learned Advocates for the opponents have already argued as referred

above that first was post-operative ICU and hence, patient was taken to first ICU

immediately after operation and afterwards as it was necessary to keep the patient for

longer time he was shifted to regular ICU.

19. It was alleged that problem was caused because of improper physiotherapy

of the patient. Learned Advocates for the opponents have argued that the

physiotherapy is a routine procedure after operation and hence, it cannot be said that

problem occurred because of physiotherapy. It was submitted that nothing is brought

on record by the complainant with the help of expert evidence that because of

physiotherapy patient suffered the problem of bradycardia attack.

20. There is no complaint about operation which was done by opponent No.2. As

it is clear from recital of the complaint itself, it is specifically mentioned in the

complaint that the operation was successful and after operation, patient was all right

and he has talked with his relatives. On the next day at about 8.00 a.m. the patient

relatives met him and the patient was fine. Even it is argued by Advocate of the

complainant that there is no complaint about surgery done by opponent No.2. Thus, it

is clear that the complaint is about post-operative care and not about operation.

21. As discussed above, the problem was bradycardia attack. As submitted before

us, bradycardia means “slow pumping of heart”. It is mentioned in the complaint

itself that on Dr. Satyavan Sharma, who was called by brother of the complainant,

examined the patient and observed in his remarks that the ‘cause of bradycardia

attack has remained unexplained’. It is submitted by Advocate of the complainant that

the patient was advised to be referred to Neurologist by Dr. Satyavan Sharma.

However, intensivist Dr. Wagle did not seem it fit to refer the patient to the

Neurologist. Learned Advocate for the opponents have argued that is false statement

made by the complainant. Advocates of the opponents brought to our notice para 8 of

the complaint wherein it is mentioned that after admitting the patient in 12 th floor,

Neurologist Dr. N.E. Bharucha put the patient under medication to stop his

convulsions. Thus, it is clear that contention of the complainant that intensivist did not

fit it necessary to refer the patient to the Neurologist is inconsistent with the recital in

the complaint itself. Thus, the contention that the patient was also not referred to

Neurologist and that is deficiency is baseless.

22. It is material to note that though the Complainant alleged medical negligence

against the opponents, it is not his case that doctors were not qualified. The

complainant did not lead any expert evidence to support the contention that there was

medical negligence on the part of opponents while treating the patient after operation.

In absence of any expert evidence to that effect, the contention of the complainant that

there was negligence on the part of opponents in treating the patient after operation

cannot be accepted. We already discussed above the allegations of the complainant

against the opponent on the point of medical negligence and found that those

allegations are baseless.

23. It is material to note that Learned Advocate for the opponent No.2 has

argued that there was no problem of heart of the patient and even the complainant has

mentioned in the complaint itself that there was no heart problem to the complainant

even after 19 months since he was discharged from the hospital. It was argued by

learned Advocate for opponent No.2 that here was no problem of lungs. It was

submitted that it might be a problem of brain and that is supported by recital in the

complaint itself where the complainant has mentioned that Dr. Sharma, who was

called by brother of the complainant, examined the patient and advised to refer to

Neurologist. We have already referred above that Neurologist Dr. Bharucha

examined the Patient after the patient was admitted in ICU on 12 th floor. Learned

Advocate for opponent No.2 has submitted that as it was a problem of brain, it was

necessary to do CT Scan which was suggested. However, the complainant and other

relatives of the patient have not given consent for CT Scan. It is material to note that it

is mentioned in Para 8 of the complaint itself that on the advice of some of the

doctors, complainant and his relatives did not give permission for CT Scan. Learned

Advocates for the opponents have argued that because of relatives of the patient,

proper investigation with the help of CT Scan could not be done and there is no fault

on the part of the opponents. In view of recital in the complainant itself, we find that

contention of the opponents is to be accepted. In absence of expert evidence, only

contention of the complainant that there was medical negligence on the part of

opponent is of no help to the complainant. Hence, we answer Point No.1 in negative.”

17. For better understanding of the case, the sequences of events, as seen from the medical

record, for the period 26.06.2004 to 29.06.2004 is detailed as hereunder:

Date Particulars

26.06.2004

The Patient, aged 73 years, was admitted in the Hospital on 26.06.2004 for

operation of Carcinoma Sigmoid Colon. The said patient was recommended to

Dr. P.B. Desai by Dr. J.C. Kothari and was advised Surgery by Dr. Desai.

On the same day the Patient was certified fit for Surgery by In-House Intensivist

and Physician Dr. Sanjay Wagle.

28.06.2004

The Patient was successfully operated by Dr. Desai and the Doctor opined that

the patient be shifted to the Post-operative Intensive Care Unit (ICU), rather than

a ward.

29.06.2004

9.00 AM

10.00 AM

10.30 AM

In the morning at about 8.00 a.m., the Patient met his relatives. At about 8.45

a.m., the patient was given physiotherapy. At 9.00 a.m., the Patient complained

of throat pain, breathlessness and choking sensation. The medical records of the

Patient for 29.06.2004, at 9.00 a.m., show that the Patient had throat pain became

unconscious with alleged Bradycardia. The Patient was, intubated by the ICU

Registrar, resuscitated and put on a ventilator.

Between 9.00 a.m. and 9.15 a.m., the Patient was administered Atropin,

Adrenaline, Soda Bicarbonate and other similar medications.

At 10.00 a.m. the Patient was seen by Dr. Chaudhary and was administered

further medication in the form of Cefoprim and Rantac.

At 10.30 a.m., the patient was examined by Dr. Wagle, who noted his

observation, including the ECG report. Dr. Wagle further explained ‘guarded

prognosis to the relatives’ of the patient. It was advised that the Patient was

required, by way of abundant caution, be shifted to the Intensive Care Unit (ICU)

on the 12 th floor from the post-operative ICU.

10.35 AM

12.00 Noon

1.00 PM

At 10.35 a.m., it was noticed that the Patient was having tonic type of

convulsions and Dr. Chaudhary was accordingly informed.

At 12.00 noon, the patient was administered Epsolin (one ½ an hour period) and

Midazalone on the advice of Dr. Chaudhary.

The patient was also examined by Dr. Satyawan Sharma, a Cardiologist and in

view of the medical condition of the Patient, Dr. Sharma suggested that as the

cause of the Bradycardia remained unexplained, a Cardiac Injury Profile of the

Patient be undertaken and further an opinion of a Neurologist be sought. Dr.

Sharma further suggested that ECG of the Patient be repeated every two hours.

At 12.00 noon, the Patient was again examined by Dr. Desai, and the opinion of

dr. N. E. Bharucha, Neurologist was sought on the medical condition of the

patient.

At 1.00 p.m., the patient was examined by Dr. Bharucha, Neurologist.

Thereafter the Patient was shifted to the ICU on the 12 th Floor.

18. The main points which arise for consideration and the contentions of the parties is detailed

as hereunder:

The Complainants submitted that there is a variation in the oral and written communication

of Dr. Desai and the Anaesthetist regarding the decision to shift the Patient to the ICU. The

Complainants family contended that Dr. Desai specifically mentioned to the attendants that

the operation had gone well and the Patient would be shifted to the ward. Even in the

operation report the Anaesthetistremarked that the Patient to be shifted to the ward. But

once again in the same report Dr. Desai had directed to shift the Patient to the ICU. It is the

Complainants’ case that the Doctors failed to apply their mind with respect to shifting of the

Patient.

Learned Counsel appearing for the Hospital and the counsel appearing for the treating

Doctors submitted that the Patient was recommended to be shifted to the post-operative

ICU rather than the ward, considering the age of the Patient, who was 73 years old and

only out of abundant caution and in the best interest of the Patient.

It is also the contention of the Complainants that the process of shifting per se was not as

per standards of protocol and also that there was a time lapse in the shifting, which caused

deterioration in the condition of the Patient. The Patient was ordered to be shifted at 10.30

a.m. but was finally shifted around 1 p.m. It is the Complainants’ case that the Hospital and

the Doctors were negligent in shifting the Patient from one ICU, which is situated on the 3

floor in one building to another ICU, which is situated on the 12 rd th floor of another

building, while the Patient’s condition was unstable and critical. It is further contended that

when the facilities in both the ICUs, listed in the Hospital rate card are the same, there are

no substantial grounds for the Patient to be shifted from one ICU to another in this critical

condition. The Complainants who are present in person further contended that there were no

qualified doctors in the first ICU and therefore they had to shift the Patient to another ICU;

the reasons for transfer was not given; that records of ICU from 8 a.m. to 9 a.m. were

missing; that when amount paid is the same, the Patient is under the impression that both

ICUs have the same facilities.

The Complainants further argued that the cause of the alleged Bradycardia was never

explained to them and that it had occurred due to the possible respiratory problems in the

ICU and known cause of any heart induced problem. It is their case that only because

timely assessment of the respiratory problem was not done, that the Patient went into a

brain dead situation because of deprivation of oxygen.

Learned Counsel appearing for the Hospital and the Doctors vehemently contended that the

medical record made it abundantly clear that the Patient developed Bradycardia, i.e. a

medical condition of slowing of the heart rate, due care and caution was taken as per

standards of normal medical practice, which include immediate resuscitation measures,

administration of drugs, which were administered by the attending nurses in the ICU under

the supervision of a senior doctor who was immediately summoned from the adjoining

Intensive Critical Care Unit (ICCU). It is submitted that the Patient was stable with the

heart rate, respiration and oxygenation being stable. Dr. Wagle was consulted and all the

drugs suggested by him were administered.

The material on record evidences that the cause for the Bradycardia was admittedly not

explained. The Hon’ble Supreme Court in Smt. Savita Garg Vs. Director, National Heart

Institute (2004) 8 SCC 56, has laid down the principle that the onus shifts on the Hospital

to explain the exact line of treatment rendered and as to why a particular condition had

occurred. In the instant case, it is for the Hospital and the team of Doctors to explain as to

how the condition of Bradycardia had occurred. The contention of the Hospital and the

treating Doctors that the Complainants did not give consent for CT Scan and therefore,

there could not be any diagnosis and further that no expert evidence was led in the case is

untenable in the light of the fact that admittedly the Patient had convulsions and was in a

critical state and hence the Complainants had admittedly not given consent for the CT Scan.

The Hon’ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital &

, have observed that no expert evidence is necessary Anr. (2010) 5 SCC 513 for every case

and that the Consumer Fora can adjudicate the aspect of medical negligence based on the

material on record, the medical literature and the submissions made by the parties. The

necessity of expert evidence depends on facts and circumstances of each case and in the

instant case we do not find it a fit case to refer it to any expert. Thought it is an admitted

fact that the Complainants did not agree to the conduction of the CT Scan as the Patient was

having continuous convulsions, yet we are unable to understand as to why the Hospital and

the treating Doctors could not give any reasons for the onset of Bradycardia. There is no

material on record to evidence that only the conduction of CT Scan could have explained

the causes for the Bradycardia. At the cost of repetition, admittedly there is no reason given

for the onset of Bradycardia which has occurred post-operatively, when the Patient was in

the ICU. In this aspect, we find the Hospital and the treating Doctors negligent, since the

onus is on them to explain the reasons for the occurrence of Bradycardia.

Now we address ourselves to whether there was any negligence on behalf of the Hospital in

the process of shifting of the Patient from ICU of the third floor of one building to the ICU

of the 12 th floor of another building. It is the Hospital’s case that the Patient was stable for

the purpose of shifting from one ICU to another; the Patient was monitored throughout the

transport; that even in the present ICU there were proper qualified Doctors and the only

reasons for shifting to another ICU was because not that it was inadequately equipped as

alleged by the Complainant, but only because there was one nurse attached to each bed and

better care could be taken.

It is the Complainant’s case that the 3 rd floor ICU was ill equipped and the Patient was

shifted to the 12 th floor in the critical condition and if both the ICU had the same facilities

and rates, there are no reasons for shifting the Patient in such a critical condition. The

Complainants argued that the Patient was not stable and having convulsions during the

process of shifting to the 12 th floor.

A brief perusal of the ICU record of 29.06.2004, the date on which the Patient was taken to

the 12 th floor ICU, it is observed that the nurse has recorded that his condition was

unsatisfactory, therefore the contention of the Hospital and the treating Doctors that the

Patient’s condition was stable, is untenable. It is also the Complainant’s case that the

submission of the Hospital and the treating Doctors that there would be better care in the 12

th floor ICU, where one nurse is dedicated to each Patient, should not be taken into

consideration as the Patient was being billed by the Hospital for provision of extra nurse. A

reading of the bill, wherein extra charges were provided for the nurse evidences the same.

Further reliance was placed on the brochure which mentioned that the same facilities would

be provided in both the ICUs.

Though we are of the considered view that the decision to shift from one ICU to another, is

the Doctors prerogative based on the Patient’s condition, it is to be seen whether during the

process of transporting the Patient any time lapse had taken place and the ‘ golden hours’ as

defined in the medical dictionary have been lost. The record shows that the decision to shift

the Patient was taken at 10.30 a.m. but the Patient was only shifted at around 1 p.m. The

reasons for this 2 ½ hours gap is unexplained. For adjudicating this issue, we find it

relevant to further take into consideration the contention of the Complainants that the

Patient was transported only with an Ambu bag which is alleged is not in conformity with

the standard protocol.

It is the case of the Complainants that when the Patient was having convulsions, he was

being helped to breathe with the help of an Ambu bag as there was only one ventilator in

the said 3 rd floor ICU. The Ambu bag was later replaced by a ventilator.

Learned counsel for the Hospital relied on the compilation regarding Ambu bag (Bag Valve

Mask), given by the Complainants in which it is stated as follows:

“A bag valve mask, abbreviated to BVM and sometimes known by the proprietary name

Ambu bag or generally as a manual resuscitator or “self-inflating bag”, is a hand-held

device commonly used to provide positive pressure ventilation to patients who are not

breathing to not breathing adequately. The device is a required part of resuscitation kits for

trained professionals in out-of-hospital settings (such as ambulance crews) and is also

frequently used in hospitals as part of standard equipment found on a crash cart, in

emergency rooms or other critical care settings. Underscoring the frequency and

prominence of BVM use in the Unites States of American Heart Association (AHA)

Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiac Care recommended

that “all healthcare providers should be familiar with the use of the bag-mask device”.

Manual resuscitators are also used within the hospital for temporary ventilation needs to be

examined for possible malfunction, or when ventilator-dependent patients are transported

within the hospital.”

(Emphasis supplied)

Learned Counsel further argued that State Commission has rightly noted that the use of the

Ambu bag is sufficient and there is no necessity of portable ventilator as the Ambu bag is

also used for the same purpose.

The question arises here is whether the Patient, who had a fit of convulsions and admittedly

required better care as per Doctors’ own admission was shifted in a timely and proper

manner or not.

When ,it is an admitted fact that the Patient was on drip and breathing with the support of

an Ambu bag, it cannot be construed that the Patient was in a very stable condition. The

submitssion of the learned Counsel read together with the medical literature relied on,

establishes that the Ambu bag is used within the hospital for temporary ventilation and

during emergency cardiac care, and therefore it cannot be construed that the Patient was in a

stable condition, when he was being shifted from one ICU to another. Though as per the

medical literature the Ambu Bag is used for Hospitals for transport within the Hospital area,

it is also stated that manual resuscitator is not a suitable device for accurate ventilation.

Strictly construed, this act of using an Ambu Bag cannot be termed as negligence perse

attributable to a Doctor, merely because the Doctor thinks one course of action in

preference to the other one available, he would not be liable if the course of action chosen

by him was acceptable to the medical profession. Be that as it may, we are of the view that

while shifting the Patient who was admittedly not in a stable condition from 3 rd to 12 th

floor ICU due care and caution ought to have been taken with respect to ventilation of the

Patient and in a timely manner, specially keeping in view the fact that the cause for

Bradycardia, which the Patient had developed was never explained and thereafter the

Patient had slipped into a coma and remained in a vegetative state for a period of almost

three years. At the cost of repetition, the time lapse of 2 ½ hours from 10.30 a.m. to 1 p.m.

has not been explained. The medical records do not show any substantial reasons for the

lapse of these ‘golden hours’ which was critical.

The next contention of the Complainants is that Dr. Wagle has not been recognised as an

‘Intensivist’ by the Hospital as per their own brochure dated March 2015. It is argued that

in both the brochures his name was included ‘General Medicine’ whereas the names of the

other Doctors are shown against ‘Intensivist’ and he was only asked to step in as an

Intensivistbecause the regular Intensivist was not presentin the third floor ICU, when the

Patient was taken after the Surgery on 28.06.2004. Though the Hospital is advertised as a

Super Speciality Hospital, Dr. Wagle contracted as a physician and performed also the role

of Intensivist and Anaesthetist by doing a pre-investigative examinations on the Patient. It

was argued that the ICU Registrar is not a senior Doctor and cannot deal with medical

emergency. The meaning of Registraras per the medical dictionary is that he is an official

keeper of records, a resident specialist, who acts as an assistant to the chief or attending

specialist; and administrative officer whose responsibility is to maintain the records of an

institutions and that he is not equipped to deal with any emergency moreover, he was

notpresent in the ICU at the time when the complication arose. It is also submitted by the

Complainants that no ICU Registrar had examined the Patient either on the date he was

admitted i.e. on 26 or even when the complication i.e. on 29 , when th th the Patient was in

the 3 rd floor. The Complainant drew our attention to the noting in the medical record made

when the Patient was in the 12 th floor ICU, where whenever the ICU Registrar had

examined the Patient a specific noting was made.

It is the Complainant’s case that it was only because no senior Doctor was present at that

point of time, a senior Doctor had to be summoned from the adjoining ICCU, who promptly

inserted endotracheal tube to maintain the Patient’s breathing and sustained his heart. It is

their case that as no senior Doctor was present in the ICU, when the complication arose,

precious time was lost.

Learned counsel appearing for the Hospital and the treating Doctors strongly contended that

there was no time lost and that the Patient was adequately resuscitated in the post-operative

ICU on the 3 rd floor by the ICU Registrar Dr. Sheikh and necessary notings were made in

the medical record of the Patient at 10:30 a.m. The Patient was treated with all care and

caution till 12:30 P.M. and subsequently was transported to the ICU on the 12 th floor.

We do not wish to address to the issue as to whether the Doctors name was included under

‘General Medicine’ and the other Doctors’ names were included under ‘Intensivist’ and

that the said Doctor was asked to step in as an Intensivist because the regular Intensivist

was not present. We find it more relevant to address the issue of medical negligence with

respect to whether the treatment was rendered as per standards of Normal Medical Parlance.

At this juncture we find it a fit case to place reliance on the catena of judgements of the

Hon’ble Supreme Court with respect to medical negligence.

The “Bolam test” has been the subject of academic debate and evaluation in India and other

jurisdictions. Among scholars, the Bolam test has been criticized on the ground that it fails

to make the distinction between the ordinary skilled doctor and the reasonably competent

doctor (Michael Jones, Medical negligence, Sweet and Maxwell, Fifth Edition (2017).

In a catena of judgements, the Hon’ble Supreme Court has laid down the essential

components of ‘Negligence’ as follows:-

The existence of a duty to take care which the defendant owes to the plaintiff;

The breach of that duty towards the plaintiff and

Damage or injury by the complainant as a result of such breach.

The ‘Duty of Care’ for a medical professional starts from the time the patient gives an

implied consent for his treatment and the medical professional accepts him as a patient for

treatment, irrespective of financial considerations. This duty starts from taking the history

of the patient and covers all aspects of the treatment, like writing proper case notes,

performing proper clinical examination, advising necessary tests and investigations,

making a proper diagnosis, and carrying out careful treatment.

In 1969, the Supreme Court in the case of Dr.Laxman Balakrishna Joshi v. Dr. Trimbak

Babu Godbole AIR 1969 SC 128 held:-

A person who holds himself out ready to give medical advice and treatment

impliedly undertakes that he is possessed of skill and knowledge for that purpose,

1. he owes a duty of care in deciding whether to undertake the case,

2. he owes a duty of care in deciding what treatment to give and,

3. he owes a duty of care in the administration of that treatment.

A breach of any of these duties gives a right of action for negligence to the patient.

This means that when a medical professional, who possesses a certain degree of skill and

knowledge, decides to treat a patient, he is duty bound to treat him with a reasonable

degree of skill, care, and knowledge.

Failure to act in accordance with the medical standards in vogue and failure to

exercise due care and diligence are generally deemed to constitute medical

negligence.

In the instant case, the nurse record shows that when the Patient developed complications

the Doctor was called by the nurse; that Dr. J.C. Kothari was called by the Complainants,

who is a chest specialist and not an Intensivist; he was referred to at 10:30 a.m. on

29.06.2004 and he was present when Dr. Wagle had arrived; Dr. Satyavan Sharma, who is

a Cardiologist arrived at about 11.45 to 12.00 noon. Dr. Bharucha was referred to only

past 2 p.m. and arrived at about 5.30 p.m., which was noted in the ICU record. Between 9

a.m. and 10. 30 a.m., it is the Complainants case that the Patient was not attended to by

any senior Doctor, leave alone the Intensivist.

As can be seen from the medical record once Dr. Wagle had arrived, he had increased

‘minute ventilation’. The medical record does not evidence anywhere as to whether the

Patient had received appropriate supply of oxygen from 9 a.m. till post 10.30 a.m. when

Dr. Wagle had arrived at the post-operative ICU. There is no recording of the ICU

Registrar as long as the Patient was there in the post-operative ICU on the 3 rd floor. It is

an admitted fact that the Patient suffered Bradycardia which caused Hypoxia of the brain

on account of lack of supply of oxygen to the brain.

The reasons with respect to Hypoxia and the treatment rendered between 9 a.m. to 10.30

a.m. with specific reference to ventilation being maintained is to be answered by the

Hospital based on the principle laid down by the Hon’ble Supreme Court in Savita Garg

(Supra) . The Hon’ble Supreme Court held that “Once an allegation is made that the

patient was admitted in a particular hospital and evidence is produced to satisfy that he

died because of lack of proper care and negligence, then the burden lies on the hospital to

justify that there was no negligence on the part of the treating doctor/ or hospital.

Therefore, in any case, the hospital which is in better position to disclose that what care

was taken or what medicine was administered to the patient. It is the duty of the hospital to

satisfy that there was no lack of care or diligence. The hospitals are institutions, people

expect better and efficient service, if the hospital fails to discharge their duties through

their doctors being employed on job basis or employed on contract basis, it is the hospital

which has to justify and by not impleading a particular doctor will not absolve the hospital

of their responsibilities.” (Emphasis Supplied)

As can be seen from the record Dr. Wagle instructed only at 10.30 a.m. to repeat ECG and

the blood tests and prescribed intravenous fluids. He also increased minute ventilation,

which is a Respiratory Minute Volume or Minute Volume given by the volume of gas

inhaled (inhaled minute volume) or exhaled (exhaled minute volume) from a person’s lung

per minute. It is not understood as to how the ICU Registrar had not thought it fit to repeat

the ECG and the blood test which were prescribed by Dr. Wagle at 10.30 a.m. It is also

evidenced from the record that the resident Doctor assisting Dr. Bharucha has examined

the Patient at 1 p.m. and Dr. Bharucha the Neurologist examined the Patient only at 5.30

p.m. of 29.06.2004. Hence, the principle laid down in Savita Garg (Supra) , once again

squarely applies as we are of the view that explanation with respect to ventilation given

between 9 a.m. to 10.30 a.m. has not been sufficiently given and we are of the view that

the Hospital is negligent with respect to this issue.

It is the case of the Complainants that the sedative calmpose, being a schedule ‘H’ drug,

under the Drugs and Cosmetics Rules, 1945, could not have been administered by the

Hospital and the treating Doctors without a proper prescription. It is the Hospitals case that

the Patient was given a proper dose i.e. 10mg at 10 p.m. on 28.06.2004; that the provisions

of Drugs and Cosmetics Rules, 1945 only prohibits the sale of schedule ‘H’ drugs in retail

and that the said medicine was administered on the prescription of the treating Doctor. It is

the Complainants’ case that because of Calmpose not being administered in the proper

dosage the side effect of Bradycardia could have developed.

The Complainant had relied on the protocol which is followed internationally and also some

standards laid down by the Joint Commission International Accreditation Standards for

Hospitals and also a national Accreditation Board for Hospitals and Healthcare Providers.

Learned Counsel appearing for the Hospital and also the Counsel for the Doctors

vehemently contended that the international standards relied upon to be the Complainants

cannot be construed by the Government standard protocol in India and that there are no

such rules and regulations stipulated for the medical professional in most of the issues

raised by the Complainants.

We are of the view that the administration and the drug dosage of ‘Calmpose’ do not fall

within the essential components of Negligence namely ‘duty’, ‘breach’ and ‘resulting

damage’. We find force in the contention of the learned Counsel appearing for the Hospital

and the Treating Doctors that Calmpose was administered as per standards of normal

medical practice and as per prescription given by the treating Doctor and therefore we do

not find any negligence regarding this aspect.

The next contention of the Complainants is that because of improper physiotherapy, the

Patient complained of breathlessness causing him extreme pain which could have led to the

complications. Having gone through the material on record, we find force in the contention

of the Hospital and the treating Doctors that physiotherapy is a normal procedure which is

carried out post-Surgery and does not require any specific recommendation.

In the instant case, though the Complainants relied on international conventions followed,

we are of the view that having regard to the fact that there is no documentary evidence to

substantiate any connection between the physiotherapy session and the Bradycardia attack,

we are of the considered view that merely because there is no specific prescription for

physiotherapy, it cannot be construed as negligence per se on behalf of the Hospital or the

treating Doctors.

We now address ourselves to the contentions of the Complainants that the Patient was

suffering from chronic depression and was on anti-depressants for more than 20 years and

that the anti–depressants were stopped abruptly before the operation without consulting a

Psychiatric. It is the case of the Hospital and the treating Doctors that the anti-depressants

were not stopped abruptly, were withheld only on the date of Surgery on the

recommendation of the Anaesthetist. To adjudicate whether such a recommendation was

made by the Anaesthetist or not we need to examine the pre-anaesthetic report of the

concerned Doctor. It is pertinent to note that such a report is not placed on record. The

Hospital treatment record does not evidence whether these anti-depressant drugs were given

from the date of admission till the date when the complications arose. The medical chart

depicting the drugs administered to the Patient do not include all these anti-depressants.

Though the medical literature filed by the Complainants does show that there is a nexus

between the two, it cannot categorically be stated that it was solely because of the abrupt

stopping of the anti-depressant drugs that the said post-operative complication arose. Be

that at it may, the fact remains that medical records do not evidence the administration of

anti-depressant drug to the Patient except stopping of the same on the Surgery date. In the

absence of the pre-anaesthetic report, we are of the considered view that the medical

records filed by the Hospital does not depict whether the anti-depressants were

administered/ tapered off from the date of admission till date of Surgery.

19. Learned counsel appearing for the Hospital vehemently contended that Complainants have

sought to place guidelines of private associations, the statement of purpose of the association of

physicians of India and have also previously sought to place certain standards issued by United

States of America non-governmental organizations dealing with accreditation of Hospitals, despite

it being an admitted position that the Hospital was never accredited to the said non-governmental

organization and therefore any such standards are neither mandatory nor binding. He further

argued that the documents which are placed on record have no applicability to them as regarding

the submission of the Complainants that bed no. 385 has reflected in the medical records of the

Patient was the bed of the post-operative Intensive Care Unit (ICU) where the Patient was taken

after his operation on 28.06.2004. On the 12 floor ICU he was allotted th bed no. 1252 and

therefore there is no contradictory reports of the respective beds. We are of the considered view

that the submissions made by the learned counsel regarding bed no. 385 and 1252 is satisfactory.

We find force in his contention that though the medical records and case papers of the Patient are

maintained by different departments, at the time of discharge all medical records pertaining to the

particular Patient are transferred to the medical records department and therefore the case papers

of different departments have been arranged accordingly. We do not find any negligence or

otherwise on behalf of the Hospital merely because the bed numbers are reflected differently in

the ICU record.

20. Learned Counsel appearing for Dr. Desai vehemently contested that the Surgery was

successful and the role of the surgeon ended with the completion of the surgical procedure and

that there is no specific allegation against Dr. Desai except for stating that he was shifted to

post-operative ICU instead of the ward. He contended that Dr. Desai cannot be held liable as no

negligence has been attributed or proved against him.

21. In P.B. Desai vs State of Maharashtra & Anr. (2013)15 SCC 481 , the ‘Duty of Care’