Consumer Protection Act Can't Be 'Halter Around Neck' Of Doctors Making Them Apprehensive Of Taking Professional Decisions At Crucial Moments: NCDRC

The National Consumer Disputes Redressal Commission, New Delhi, has observed that the Consumer Protection Act ought not to be used as a 'halter around the neck' of doctors making them apprehensive of taking professional decisions at crucial moments. 

The Presiding Member Dr. S.M. Kantikar was considering a complaint alleging medical negligence on the part of the doctors of Max Super Specialty Hospital, Delhi, and seeking a compensation to the tune of Rs. 20.33 Crores.

The Commission relied upon various precedents C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam; Chanda Rani Akhouri v. M.S.Methusethupathi Mithupathi; Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors., and other such cases to emphasize that a doctor would not be held liable for negligence if his diagnosis is different from other fellow doctor or he treats patient from other method and taking any higher element of risk, or simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.

"The Consumer Protection Act should not be a “halter round the neck” of the doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death," the Commission said.

Brief Facts 

The complainant had consulted the 2nd Opposite Party, Dr. Sanjeev Kumar (OP-2), at the Max Super Specialty Hospital, Delhi (1st Opposite Party/ OP-1) for fever, fatigue, and blood spots/bruises on both his arms and legs. It is also noted that he had vomited with blood clot. A few lab investigations had been prescribed by Dr. Kumar (OP-2), and after asking the patient about his Insurance cover, it was alleged that the former had advised him to get admitted immediately through emergency and that he would visit from 8-8.30 PM. Subsequently, the patient was provisionally diagnosed with Viral Hemorrhagic Fever (VHF). The platelet count was found critically low, and there were other factors as well that were indicative of hemolytic anemia, which was later reconfirmed by the doctors.

It was alleged that although the patient had been admitted in Medicine Department, and his primary consultant was OP-2, but having diagnosed as blood disorder, he should have immediately transferred to Hematology Department. It was alleged that OP-2 had intentionally kept the patient under medicine in order to raise the hospital bills, and that the doctors at the hospital had been playing with his life.

It was alleged that even though the patient had suffered an episode of passing blood in stool, no Gastroenterologist (GI) saw him until later. When the patient had suffered seizures, and became critical, he was kept in ICU, and the Neurologist came to examine him only after an hour. Additionally, it was alleged by the complainant patient that during his 29 days of hospitalization, the Hematologist (OP-3) had only made 8 scattered visits and was absent from the critical stages of diagnosis and treatment, although the billing was done for 39 visits.

It was further alleged that the hospital did not provide treatment summary despite repeated requests, because of which his wife was unable to get any second opinion. The treatment records were also alleged to have been fabricated by the opposite parties. It was averred that the complainant had consulted several doctors about his treatment later, and they had adversely commented upon the correctness of final diagnosis of Thrombocytopenic Thrombotic Purpura (TTP) and the delayed treatment.

He further alleged that the opposite parties had indulged in billing malpractices, double billing for doctor’s visits, and billing for tests which were not done. He had approached several government authorities in this regard, but the opposite parties had not co-operated with the authorities, it was said. The Directorate General of Health Service (DGHS) mentioned in its report that the hospital and doctors were found to have indulged in unethical practices, but the Delhi Medical Council (DMC) passed a non-speaking Order on medical negligence, which was challenged by the complainant in Appeal before the MCI. 

It is the complainant's case that the records which were thereafter produced by the hospital were different from that placed before the Govt. authorities, and fabrication and manipulation could thus not be ruled out. It was submitted that the Opposite Parties had also failed to make differential diagnosis of TTP. It was averred that although there was no family history of TTP, the doctors informed about the risk of inheritance to their children, due to which he and his wife suffered severe mental anguish and trauma.

The main allegation was that there was a failure to detect presence of Schistocytes in Peripheral Blood Smear (PBS), which resulted in delayed diagnosis of MAHA and its treatment. It was contended that although OP-4, a doctor in Hematology Department, recorded the presence of 25 nRBC on PBS, the presence of Schistocytes was totally ignored, thereby resulting in gross negligence, and case of Res Ipsa Loquitur as not following the Standard operating procedures (SOP). The complaint was thus filed seeking overall compensation amounting to Rs. 20,33,44,867/-. 

The Opposite Parties on their part denied the averments. It was pointed out that the DMC and MCI had already held that there was no negligence on the part of hospital or the treating doctors, and thus prayed for dismissal of the Complaint. 

Findings of the Commission 

The Commission in this case noted that OP-2 was a specialist in internal medicine, having experience and Hematology was an integral part of medicine, and the former could thus treat the complainant patient. It found that OP-2 had adopted a reasonable approach for the patient’s care, since if necessary, inter-departmental consultation was also available at the hospital. In the view of the Commission, the OP-2 was not mandated to shift the Complainant to Hematology. As regards the Opposite Parties 3 and 4, the Court found that there was no evidence that Schistocytes were present in the PBS before the date on which it was detected, and that it was an imagination or presumption on the part of the Complainant that there had been a failure to detect the same earlier. The Commission thus could not find any delay or failure in diagnosis of TTP, either. 

The Commission also perused the emails sent by the Complainant to the three experts in Hematology seeking opinion about his treatment, and observed that the same were only based on the information provided by the Complainant, since the entire treatment record had not been sent. 

"The possibility of half or incomplete information was given to the experts and/or suppression of material facts cannot be ruled out. The experts have, with good intention, replied to the emails of the Complainant. In my view, such email communications are not construed as expert opinions. The experts were not called by the Complainant to file affidavits or to adduce evidence. Thus, the email communications are not sufficient to hold the treating doctors for negligence or deficiency in service," the Commission held. 

The Commission observed that in order to establish medical negligence, the victim or victim’s family bringing the action must prove the “four D’s” against the erring doctor/hospital, which include: i. Duty; ii. Dereliction/Deviation; iii. Direct (proximate) Cause; and iv. Damages. 

The Commission was thus of the staunch view that the patient was investigated and treated as per the standard of reasonable practice, during the hospitalization. 

"In the instant case, I find, the standard medical protocol being followed by the OPs-2 to 4 to the best of their skill and with competence at their command. Thus, it is clear that out of ‘4 Ds’ the Complainant has proved only the ‘Duty’ of hospital and doctors, but failed to prove the other ingredients of medical negligence i.e. Dereliction/breach in duty of care and the Direct/proximate cause (causa causens)," it held. 

It added that the mere allegations levelled by the Complainant could not be taken as 'the gospel truth', as he had not produced cogent evidence to prove his case.

However, as regards the administrative deficiencies such as double billing and doctors’ visits, as noted by the DHS, the Commission directed that the Complainant ought to be given a refund of the excess amount. It thereby directed the Hospital to be careful and meticulously look for systemic improvement in their functioning.

As the Complainant had not produced detailed calculation of alleged excessive changes, a lumpsum amount of Rs. One lakh was directed to be paid by the Hospital to the Complainant within 4 weeks from the date of the Order failing which it was stated that the amount would carry 9% interest per annum till its realization. 

The Complainant was represented by Advocates Prashant Vaxish, Rishabh Sharma, and assisted by Mr. Pulkit Mehrotra. Advocate Debasish Moitra, assisted by Advocate Rahul Sharma appeared on behalf of the Opposite Parties. 

Case Title: Mohit Jain v. M/S Max Super Specialty Hospital & Ors. 

Click Here To Read/Download The Order