The case of Arvind Shah v. Kamlaben Ramsingh Kushwaha was at first addressed by the Gujarat State Consumer Disputes Redressal Commission on 8th July 2004, where the commission ordered the appellant or the original opposite party (OP), Arvind Shah to pay a sum of Rs. 5 lakhs with interest @ 9% per annum from the date of the complaint till payment and costs of Rs. 5,000 as compensation to the complainant or respondent, Kamlaben Kushwaha. The complainant claimed that the OP did not take due care while treating the son of the complainant, Prakash, who as a result succumbed to death. The appellant thus, appeals to the National Consumer Disputes Redressal Commission, New Delhi challenging the order delivered by the Gujarat State Consumer Disputes Redressal Commission.
In the National Consumer Disputes Redressal Commission, New Delhi
|Name of the Case||Arvind Shah v. Kamlaben Ramsingh Kushwaha|
|Citation||2009(3) C.P.C.24; III (2009) CPJ121(NC)|
|Year of the Case||2009|
|Respondent||Kamlaben Ramsingh Kushwaha|
|Bench/Judges||R. C. Jain, J. (Presiding Member) and Anupam Dasgupta, Member|
|Acts Involved||Consumer Protection Act, 1986|
|Important Sections||Section 13(4)|
Background of the case
The background of the case begins from the year 1997 when Prakash, a 20-year-old son of the complainant fell sick and was taken to the OP for treatment. During his treatment, the OP was allegedly negligent and Prakash died on 6th September 1997 due to wrong treatment administered to him. The complainant alleged medical negligence stating deficiency in service under the Consumer Protection Act, 1986 on the part of the OP and the complainant prayed for a compensation of Rs. 11.05 lakh and costs of the proceedings. The Gujarat State Consumer Disputes Redressal Commission in an order dated 08.07.2004 directed the P to pay a sum of Rs. 5 lakhs with interest @ 9% per annum from the date of the complaint till payment and costs of Rs. 5,000. The facts of the case are discussed in detail further.
On 04.09.1997 the complainant approached with her son to the OP for his treatment. However, Prakash, the son of the complainant, died on 06.09.1997 after the ongoing treatment from 4th-6th September by the OP. The state commission ordered the OP to pay a compensation of Rs. 5 lakhs with interest @ 9% per annum from the date of the complaint till payment and costs of Rs. 5,000. The OP applied to the national commission to challenge the state commission’s order on the following grounds:
a) He treated Prakash only on 04.09.1997;
b) He did not diagnose Prakash with malaria on 04.09.1997 because no such pathological reports were available which are required to establish malaria. After which Prakash went to other hospitals, one named ‘Sharadaben Hospital’ in the period between 04.09.1997 and 06.09.1997. There was no evidence suggesting that the OP treated Prakash on 06.09.1997 and the State Commission did not come to any specific finding on this issue.
c) The medicines prescribed by the OP on 04.09.1997 did not have any nexus with the actual cause of death as established by the post-mortem report (PMR), which was, ‘pulmonary edema’.
d) Only on 04.09.1997 did the OP treated Prakash and subsequently, Prakash went to other hospitals, including ‘Sharadaben Hospital’, and received treatment. The State Commission, therefore, erred seriously in keeping the OP accountable for Prakash’s death.
Arguments placed by the appellant
The Learned Counsel for the appellant (OP) in its written statement before the State Commission summarized the grounds of the appeal (mentioned above) and the rejection by the OP of the prescriptions and cash memos of medicines. His major emphasis was on the findings of the PMR, stating “Any external injuries on the body part” and its corresponding finding, “No external marks of injuries”. In this context, he referred to the complainant’s charges that Prakash developed symptoms of acute distress and breathlessness, eventually leading to his death after the OP placed him on intravenous (IV) saline solution feed and administered some injections through the IV tube. Learned Counsel stressed that if administered, the cannula of an IV feed would have left a mark on the deceased ‘s body which would have been identified by the PMR. He also drew attention to the fact that Prakash was well enough to work for the entire 6.9.1997 according to the complainant herself.
Learned Counsel, therefore, argued that the complainant was unable to create either the OP’s claim that Prakash was administering any treatment on the date of his death, that is to say, 06.09.1997 or the connection between Prakash’s death and OP’s treatment of 04.09.1997. According to him, the failure of the complainant to produce any record of Prakash’s treatment at the ‘Sharadaben Hospital’ should be adversely kept against her as well. Learned counsel went on to say that he may have died from Prakash’s care at that hospital. Accordingly, both on facts and in law, the impugned order was unsustainable.
Arguments placed by the respondent/complainant
Mrs. Shah, the Learned Counsel for the complainant, on the other hand, emphasised on the fact that in the written statement of the OP to the State Commission, he denied that he had at all treated Prakash but in the memorandum of appeal he changed his stand and admitted that he treated Prakash on 04.09.1997 only and not thereafter.
From the statements of the OP, Mrs. Shah pointed out that the OP acknowledged for the first time during his cross-examination that the families of the complainant stayed in the neighbourhood of his polyclinic and if someone in the family became ill, for the treatment he would normally go to the OP. The OP also effectively admitted that Prakash went first to the OP and then to ‘Sharadaben Hospital’ and then again to him at the relevant time. However, after looking at his documents, he will be able to confirm this (a series of Prakash’s treatment at the relevant time). This exactly corresponded to the complainant’s average that on 04.09.1997 Prakash twice went to and received treatment from the OP.
Referring to Rakesh Medical and General Stores’ cash memo, which showed the name of the OP as the prescribing doctor, who then voluntarily deposed that Ampicillin and Geramycin had no side effects and were absolutely safe. Why would he do so if he had not prescribed those injections for Prakash and actually administered them to him? These OP statements put together clearly confirmed the complainant’s more average that both on 04.09.1997 and on 06.09.1997 the OP handled Prakash. On 04.09.1997 there was no prescription or bill for the purchase of medicines because at his polyclinic the OP was prescribing the drugs and injecting them into Prakash. Rakesh Medical and General Stores’ cash memo was also in support of Prakash’s treatment and prescription by the OP on 06.09.1997. Rakesh Medical and General Stores’ cash memo was also in support of Prakash’s treatment and prescription by the OP on 06.09.1997.
- Whether the appellant or the opposite party (OP) was negligent while treating the complainant’s son?
- Whether the appellant is liable to pay a compensation amount to the complainant?
In light of the PMR findings, it is difficult to see how the State Commission concluded that Prakash’s death occurred as claimed in the lawsuit, i.e. directly as a result of a reaction to any injection and/or medicine allegedly given intravenously to Prakash by the OP. Moreover, despite the opportunity to do so even at the appeal stage, Mrs. Shah did not produce any medical literature in support of her argument that a PMR does not recognise the cannula mark of an IV injection as a “physical injury” after 12 hours of death, particularly if the Police Reference seeking PM did not mention a concern on this score. The doctor who performed the PMR had not been tested on this critical topic either. The State Commission may and should have considered suo motu such examination of the doctor carrying out the PMR in the exercise of its powers under Section 13(4) of the Act. Have it as it should be.
In the case of Samira Kohli v. Dr. Prabha Manchanda, the Court of Apex dealt extensively with the issue of “valid consent” and, in that sense, the “duty of disclosure” of a doctor to his patient, against the backdrop of the rulings in the English case of Bolam v. Friern Hospital Management Committee, the case of Canterbury v. Spence in the United States, as well as a host of cases decided by the Court itself. In doing so, the Court also recognised the ground-level realities of medical care quality, the availability of the required facilities, and the willingness of the citizens to bear the related costs in India and the world’s developing countries.
The court took into account the totality of the facts, circumstances, and arguments of both the parties and held that the prescription dated 06.09.1997 on record is a valid and genuine proof, which the OP denied to be a genuine proof. The court was of the opinion that the updated drug was also of the OP’s clinic as he prescribed for “Inj. Betnesol” and mentioned in his own statement that it is a “life-saving drug”. Therefore, the court held that the need to administer a “life-saving” injection such as Betnesol to Prakash could have emerged only when fatal complications arose in the late evening of 06.09.1997, shortly before his expiry before 9.55 p.m. on 06.09.1997.
The court stated that before beginning a ‘treatment’ a doctor must seek the patient’s consent (the word ‘treatment’ also involves surgery). The consent thus obtained should be real and valid, meaning: the patient should have the capacity and ability to consent; its consent should be voluntary and it should be based on adequate information on the nature of the treatment procedure, so that the patient understands what he consents to.
The ‘adequate information’ to be given by the doctor (or his team member) who is treating the patient should allow the patient to make an informed decision as to whether or not he should be contributing to the particular treatment. This means that the doctor should reveal (a) the nature and procedure of the treatment and its purpose, benefits, and effect; (b) alternatives if any available; (c) an overview of the substantial risks: and (d) adverse effects of refusing treatment. But remote or theoretical threats involved don’t need to be clarified, which may scare or confuse a patient and lead to denial of consent to necessary treatment.
Thus, the court held in this case that the OP is clearly guilty of medical negligence in not issuing a prescription for his treatment of the deceased Prakash on 04.09.1997 and then in the prescription(s) of 06.09.1997 not mentioning the diagnosis of Prakash’s ailment.
The negligence of the OP, however, is attributable to his failure to report even a provisional diagnosis of Prakash’s disease prior to prescribing medication. The failure has significant consequences, as we have seen. Secondly, the inconsistency between his denial (at the complaint stage) that he had treated Prakash at all during the relevant time and his subsequent volte-face in the appeal that he had treated Prakash on 4.9.1997 does not represent professional behaviour worthy of a long-standing licenced medical practitioner as alleged by the OP. Such action can only be attributed to one cause: full awareness of his negligence in dealing with Prakash and then attempting to wriggle out the consequences. On the other hand, as observed, it is not possible to say that the negligence of the OP in treating Prakash caused his death directly, though it may have led to death. While, in the entirety of the facts and circumstances of the case, the negligence on the part of the appellant (OP) in the care of the complainant’s deceased son is established, Prakash is to the extent mentioned above and the death cannot be said to be directly and solely due to the OP’s negligence/lack of service.
The State Commission’s order on the amount of compensation awarded (Rs. 5 lakhs with interest) would therefore be too high and unsustainable. Therefore, in the interests of justice, the court approved the appeal in part and ordered the appellant (OP) to pay the complainant a sum of Rs. 2.5 (two and a half) lakh compensation along with interest @ 9 % per year from the date of the complaint to the date of payment. If the payment is not made within four weeks from the date of this order, the balance for the default period shall bear interest @ 12 % per annum.
The major concepts highlighted in the case is of medical negligence and failure to provide basic information about the treatment to the patient. The court, however, held that the doctor should seek consent from the patient before his treatment and provide him with adequate information related to his treatment. The adequate information provided by the doctor should possibly mention the following point – (a) the nature and procedure of the treatment and its purpose, benefits, and effect; (b) alternatives if any available; (c) an overview of the substantial risks: and (d) adverse effects of refusing treatment.