BEFORE CONSUMER DISPUTE REDRESSAL FORUM, MUMBAI SUB-URBAN DISTRICT

3^RD FLOOR ADMINISTRATIVE BUILDING, NEAR CHETNA COLLEGE, BANDRA (EAST), MUMBAI -400 051

COMPLAINT CASE NO. 03 OF 2012

IN THE MATTER OF :

PUSHPA MUTREJA

THROUGH

JAGDISH MUTREJA, C. A.   …….          COMPLAINANT

VERSUS

SHREE KRISHNA HOSPITAL

& ORS                                            ………..OPPOSITE PARTIES

MAY IT PLEASE YOUR HONOUR

WRITTEN ARGUMENTS ON BEHALF OF OPPOSITE PARTIES

The opposite parties named above most humbly and respectfully beg to file their written arguments as under :

SOME BASIC FACTS ABOUT THE DISEASE

1.     Cellulitis  is a localized or diffuse inflammation of connective tissue with severe inflammation of dermal and subcutaneous layers of the skin. Cellulitis can be caused by normal skin flora or by exogenous bacteria, and often occurs where the skin has previously been broken: cracks in the skin, cuts, blisters, burns, insect bites, surgical wounds, intravenous drug injection or sites of intravenous catheter insertion. Skin on the face or lower legs is most commonly affected by this infection, though cellulitis can occur on any part of the body. The mainstay of therapy remains treatment with appropriate antibiotics, and recovery periods last from 48 hours to six months.

2.    Erysipelas is the term used for a more superficial infection of the dermis and upper subcutaneous layer that presents clinically with a well-defined edge. Erysipelas and cellulitis often coexist, so it is often difficult to make a distinction between the two. In Ludwig's angina, an acute and potentially life threatening condition, cellulitis occurs within the submandibular (lower jaw) space. Cellulitis is unrelated (except etymologically) to cellulite, a cosmetic condition featuring dimpling of the skin.

Causes

3.    Cellulitis is caused by a type of bacteria entering the skin, usually by way of a cut, abrasion, or break in the skin. This break does not need to be visible. Group A Streptococcus and Staphylococcus are the most common of these bacteria, which are part of the normal flora of the skin, but normally cause no actual infection while on the skin's outer surface. Dental infections account for approximately 80% of cases of Ludwig's angina, or cellulitis of the submandibular space. Mixed infections, due to both aerobes and anaerobes, are commonly associated with the cellulitis of Ludwig's angina. Typically this includes alpha-hemolytic streptococci, staphylococci and bacteroides groups.

4.    Predisposing conditions for cellulitis include insect or spider bite, blistering, animal bite, tattoos, pruritic (itchy) skin rash, recent surgery, athlete's foot, dry skin, eczema, injecting drugs (especially subcutaneous or intramuscular injection or where an attempted intravenous injection "misses" or blows the vein), pregnancy, diabetes and obesity, which can affect circulation, as well as burns and boils, though there is debate as to whether minor foot lesions contribute. Occurrences of cellulitis may also be associated with the rare condition hidradenitis suppurativa.The appearance of the skin will assist a doctor in determining a diagnosis. A doctor may also suggest blood tests, a wound culture or other tests to help rule out a blood clot deep in the veins of the legs. Cellulitis in the lower leg is characterized by signs and symptoms similar to those of a deep vein thrombosis, such as warmth, pain and swelling (inflammation).

5.    This reddened skin or rash may signal a deeper, more serious infection of the inner layers of skin. Once below the skin, the bacteria can spread rapidly, entering the lymph nodes and the bloodstream and spreading throughout the body. This can result in influenza-like symptoms with a high temperature and sweating or feeling very cold with shaking, as the sufferer cannot get warm. In rare cases, the infection can spread to the deep layer of tissue called the fascial lining. Necrotizing fasciitis, also called by the media "flesh-eating bacteria", is an example of a deep-layer infection. It is a medical emergency.

Risk factors

6.    The elderly and those with immunodeficiency (a weakened immune system) are especially vulnerable to contracting cellulitis. Diabetics are more susceptible to cellulitis than the general population because of impairment of the immune system; they are especially prone to cellulitis in the feet, because the disease causes impairment of blood circulation in the legs, leading to diabetic foot/foot ulcers. Poor control of blood glucose levels allows bacteria to grow more rapidly in the affected tissue, and facilitates rapid progression if the infection enters the bloodstream. Neural degeneration in diabetes means these ulcers may not be painful and thus often become infected. Those who have suffered poliomyelitis are also prone because of circulatory problems, especially in the legs.

7.     Immunosuppressive drugs, and other illnesses or infections that weaken the immune system, are also factors that make infection more likely. Chickenpox and shingles often result in blisters that break open, providing a gap in the skin through which bacteria can enter. Lymphedema, which causes swelling on the arms and/or legs, can also put an individual at risk. Diseases that affect blood circulation in the legs and feet, such as chronic venous insufficiency and varicose veins, are also risk factors for cellulitis. Cellulitis is also extremely prevalent among dense populations sharing hygiene facilities and common living quarters, such as military installations, college dormitories, nursing homes, oil platforms and homeless shelters. It is advised if a cabin is shared with a sufferer, urgent medical treatment should be given.

Diagnosis

8.    Cellulitis is most often a clinical diagnosis, and local cultures do not always identify the causative organism. Blood cultures usually are positive only if the patient develops generalized sepsis. Conditions that may resemble cellulitis include deep vein thrombosis, which can be diagnosed with a compression leg ultrasound, and stasis dermatitis, which is inflammation of the skin from poor blood flow. Associated musculoskeletal findings are sometimes reported. When it occurs with acne conglobata, hidradenitis suppurativa, and pilonidal cysts, the syndrome is referred to as thefollicular occlusion triad or tetrad. Lyme disease can be misdiagnosed as staphylococcal- or streptococcal-induced cellulitis. Because the characteristic bullseye rash does not always appear in patients infected with Lyme disease, the similar set of symptoms may be misdiagnosed as cellulitis. Standard treatments for cellulitis are not sufficient for curing Lyme disease. The only way to rule out Lyme disease is with a blood test, which is recommended during warm months in areas where the disease is endemic.

COMPLAINANT’S VERSION IN CHRONOLOGICAL ORDER

CHRONOLOGY OF EVENTS

S.No	Date	Events
1.	23.10.2011	Complainant was under the care and supervision of opposite parties No. 2 & 3 for the treatment of injury of her lower left foot cellulites (infection with swellings).
2.	25.10.2011	The complainant was asked to get admitted in opposite party No. 1 hospital. She was admiited and numbers of clinical tests were carried out in the hospital.
3.	26.10.2011	The complainant started vomiting and complained of severe acidity. The complainant was having pain in her left leg and was feeling weakness also
4.	27.10.2011	The vomiting of the complainant continued and she complained of weakness, pain, headache, and acidity. No food, water, juice can be given to her as she was vomiting continuously soon after intake.
5.	28.10.2011	The health of the complainant deteoriated further. The complainant started having loose motions (12 to 13 hrs within few hours). In the late evening complainant’s son requested his family doctor to visit opposite party No.1 hospital. Thereafter they took discharge from the opposite party No.1 hospital.
6.	28.10.2011 TO 07.11.2011	The complainant was kept in ICU in Apex Hospital for 11 days and was treated of injury of her lower left foot cellulites (infection with swellings) along with vomiting, loose motion, headache, restlessness, Kidney problem and pain.
7.	30.10.2011	A complaint was made to the Senior Inspector of Police, Borivali (east) by the complaint through her POA for lack of professional services while attending patients.
8.	07.11.2011 TO 10.11.2011	The complainant was kept in OPD & thereafter she was discharged.
9.	21.11.2011	All the opposite parties were given notice by registered post by the complainant through her counsel Mrs. C. R. Sukheja, Advocate
10.	23.11.2011	The legal notice was duly received by the opposite parties.
11.	15.12.2011	Reply was sent by the opposite patries through their Counsel Mr. Rajendra Choudhary, Advocate
12.	27.12.2011	Reply was received by Mrs. C. R. Sukhija, Advocate
13.	02.01.2012	Further reply was given to Mr. Rajendra Choudhary, Advocate by the complainant’s Counsel Mrs. C. R. Sukhija, Advocate.
14.	03.01.2012	A complaint under the provisions Section 12 of the Consumer Protection Act, 1986 was filed against the opposite parties by the complainant bearing complaint case No. 3 of 2012 before this Hon’ble Forum for financial loss of Rs.2,50,000/- together with compensation of Rs.10,00,000/- with interest @ 12 % per annum from the date of application till the payment of compensation by the complainants.

REPLY ON BEHALF OF OPPOSITE PARTIES :

9.    By filing written statement dated 31.03.2012 the opposite parties has submitted that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unstable in Law and has been filed without justified reason / cause against  the opposite parties just to harass, defame and extort illegal sum from them. No specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the complaiant against the opposite parties. The Complainant has totally failed to explain “as to how thitife opposite parties were negligent”. Hence the complaint is based on non-specific, unscientific and layman conjectures. The apex Court in the case of V. Kishan Rao vs Nikhil Super Speciality Hospital ... decided on 8 March, 2010 reported in : 2010 (5) SCR 1 = (2010) 5 SCC 513 has held that it was not bound by the earlier decision of the same court in Martin D’Souza’s case as that judgment was per incuriam regarding the directions for expert opinion is concerned. The court held that it was not necessary in all cases to seek expert opinion before proceeding with the matter. For simple and obvious cases, the consumer courts were free to proceed without seeking expert opinion and the instant case fell in such a category. Complainant has filed the instant complaint with false allegation of negligence by claiming exhorbitant amounts without any basis, just to waste valuable time, harass and defame the opposite parties. No cause of action arose against the opposite parties in this case, no negligence or deficiency in surgical services has been made/ provided by the opposite parties to the patient while providing the said treatment/ services in question. The Complaint is bad for mis-joinder of necessary parties as the opposite party No. 1 Hospital is insured with “United India Insurance Company Limited, 54, Janpath, Connuaght Place, New Delhi – 110 001 through its Professional Indemnity Policy No. 210/46/10/32/00002599 effective from 04.02.2011 to 03.02.2012. The opposite party No. 2  is insured with “United India Insurance Company Limited, 54, Janpath, Connuaght Place, New Delhi – 110 001 through its Professional Indemnity Policy No.120704/46/10/35/00001604 effective from 10.02.2011 to 09.02.2012. The opposite party No. 3 is insured with “United India Insurance Company Limited, 54, Janpath, Connuaght Place, New Delhi – 110 001 through its Professional Indemnity Policy No.120704/46/11/35/00000525 effective from 17.11.2011 to 16.11.2012.

10.                       Opposite party No. 1 had seen the complainant for the first time on 25.10.2011 and the patient immediately referred to opposite party No. 3 for acidity type symptoms. Opposite party No. 3 seen the complainant for the first time on 26.10.2011 at 12 :30 PM. This diabetic complainant with diabetic cellulites had no major complaint except acidity symptoms and pain over left lower leg having cellulites, high WBC count, normal sugar & normal creatinine. Complainant was on supacef 1-5 IV twice a day with oral hypoglycemic medicine for diabetes. Opposite party No. 2 was on 27.10.2011 told the complainant had 2-3 times of loose motion and vomiting once or twice. On examination of abdomen generalized tenderness was present. Opposite party No. 3 continued Supacef & added IV Metrogyl 100 ml three times, complainant passed adequate amount of urine. Concerned doctors were available round the clock including RMOS was time 24 hours. Opposite parties No. 2 & 3 were not on leave. ICU facility with ventilator is available in opposite party No. 1 Hospital. Dressing was done by RMOS. Opposite party No. 3 was told on 28.10.2011 that the complainant had 5-6 time loose motions and vomiting immediately after food. Hence the complainant was kept nill by mouth. Ryles tube aspiration was advised as she had pain and distention of abdomen. Opposite party No. 3 thought intra abdominal inflammatory or infective process. After conforming S. creatinine level which was 1.2. opposite party No. 3 changed to antibiotics IV Cefaperazone with Tazobectam and one single injection of Amikacin was given. Opposite party No. 3 said that the complainant’s general condition deterioted further. The complainant had breathlessness & SPO2 dropped to 89 %. Hence was put on nasal O2 & nebulaisation. Complainant became drowsy after that. Meanwhile their family doctor had seen her without opposite party No. 3’s knowledge & had some discussion with complaiant’s relatives. Opposite party No. 3 reached Hospital at 09 : 00 PM at that time complainant’s general condition was not good. Hence case was discussed with complainant’s relatives. Complainant relatives decided to shift the complainant to higher institute with good intensive care backup as per complainant wish. Opposite party No. 3 tried to contact Krauna Hospital & Suvarna Hospital. But there were no vacancy in the Krauna Hospital & Suvarna Hospital therefore the complaiant was shifted to Apex Hospital. From the above pleading and evidence lead on behalf of opposite parties it is crystal clear  like light of the day that there was no deficiency of service or medical negligence on the part of opposite parties.Hence the is liable to be dismissed.

11. A power of attorney holder cannot depose on behalf of principal as held by the apex Court, in a judgment in Janki Vashdeo Bhojwani and Anr. vs. Indusind Bank Ltd. and Ors. [2005 (2) SCC 217]

12.                        Negligence by doctors has to be determined by judges who are not trained in medical science. They rely on experts’ opinion and decide on the basis of basic principles of reasonableness and prudence. This brings into a lot of subjectivity into the decision and the effort is to reduce it and have certain objective criteria. This may sound simple but is tremendously difficult as medical profession evolves and experimentation helps in its evolution. Thus, there is a constant tussle between the established procedures and innovative methods. But, innovation simply for the sake of being different, without any reason is not acceptable. And, these issues make it extremely challenging to decide negligence by doctors. The Hon’ble Forum examines the concept of negligence in medical profession in the light of interpretation of law by the Supreme Court of India and the idea of the ‘reasonable man’.

12.

Introduction

13.                        For a patient, the doctor is like God. And, the God is infallible. But that is what the patient thinks. In reality, doctors are human beings. And, to err is human. Doctors may commit a mistake. Doctors may be negligent. The support staff may be careless. Two acts of negligence may give rise to a much bigger problem. It may be due to gross negligence. Anything is possible. In such a scenario, it is critical to determine who was negligent, and under what circumstances.

14.                        In a country committed to the rule of law, such matters are taken to the court and judges are supposed to decide. However, negligence by doctors is difficult to be determined by judges as they are not trained in medical science. Their decisions are based on experts’ opinion. Judges apply the basic principles of law in conjunction with the law of the land to make a decision. Reasonableness and prudence are the guiding factors.

15.                        We would like to go through these principles in the light of some court judgments and try to understand as to what is expected from a doctor as a reasonable person. As these issues are at the core of medical profession and hospitals are directly affected by new interpretation of an existing law regarding medical professionals, it is pertinent to deal with them at the individual level of the doctor, and also at the employer’s level i.e., hospital.

Negligence

16.                        It is very difficult to define negligence, however, the concept has been accepted in jurisprudence. The authoritative text on the subject in India is the ‘Law of Torts’ by Ratanlal and Dhirajlal. Negligence has been discussed as:

Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.

The definition involves three constituents of negligence:

(1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty;

(2) breach of the said duty; and

(3) consequential damage.

Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort. Thus, the essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

17.Law of Torts, Ratanlal & Dhirajlal, Twenty-fourth Edition 2002, edited by Justice G.P. Singh; pp.441-442 

In the landmark Bolam case, it was held that:

In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action.

Thus, the understanding of negligence hinges on the ‘reasonable man’. Let us try to understand who this ‘reasonable man’ is.

The ‘Reasonable Man’

18.                       It has been held by the courts that the test of reasonableness is that of the ‘ordinary man’ or also called as the ‘reasonable man’. In Bolam case, it was discussed that:

In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man.

19.                        Why the mention of ‘Clapham omnibus’? The Bolam judgment was pronounced in 1957 and Clapham, at that time, was a nondescript south London suburb. It represented “ordinary” London. Omnibus was used at that time for the public bus. Thus, “the man on the top of a Clapham omnibus” was a hypothetical person, who was reasonably educated and intelligent but was a non-specialist. The courts used to judge the conduct of any defendant by comparing it with that of the hypothetical ordinary man.

Professional

20.                      According to the English language, a professional is a person doing or practising something as a full-time occupation or for payment or to a make a living; and that person knows the special conventions, forms of politeness, etc. associated with a certain profession. Professional is contrasted with amateur – a person who does something for pleasure and not for payment.

Negligence by professionals

21.                        The Supreme Court of India discussed the conduct of professionals and what may amount to negligence by professionals in Jacob Mathew’s case :

In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution….

22.                       He does not assure his client of the result…A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on……Judged by this standard, a professional may be held liable for negligence on one of two findings: either he 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. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

…A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

23.                       The Bolam case very clearly distinguished between the negligence by an ordinary man and negligence by a professional in the following words:

But 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.

Negligence by Medical Professionals

24.                       In Jacob Mathew case, the Supreme Court of India has gone into details of what is the meaning of negligence by medical professionals.

Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply.

25.                       A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.

26.                       When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.

27.                       So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

28.                      In the Bolam case, the court held that:

… In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent.

… He is not 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.

… A man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.

“I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century.” That clearly would be wrong.

Conclusion

29.                       There are two possibilities in cases of negligence – either it is negligence of the doctor or it is negligence of the staff. There may be a possibility of negligence, both of the doctor and the staff. In most of the cases, it will be a case of joint and several liability, and both the doctor and the hospital will be liable. The division of liability between the two of them will be decided according to the understanding between the two. As far as determining negligence is considered, courts have to depend on the advice of experts, except in cases of blatant violation of protocol and doing things which are considered to be unreasonable and imprudent. The level of subjectivity in such decisions is quite high and the purpose of law to be certain and specific is defeated to a large extent. Recent decisions are a good step in the direction of making this murky area a bit tidy, however, a lot needs to be done by the courts in the shape of clearer judgments so that the layman can benefit. As of now, the judgments leave a lot of room for discretion, which at times may be exercised by different persons, including doctors and judicial officers, in an undesirable manner. The law on the subject needs to be more precise and certain. That will surely give a better understanding about the “reasonable man”.

PLACE : MUMBAI

DATE :              ADVOCATE FOR OPPOSITE PARTIES