Ms. Pamela Bhandari vs Gas Authority Of India Ltd. And ...
2006 Latest Caselaw 7 Del

JUDGMENT

S. Ravindra Bhat, J.

1. In these proceedings, under Article 226 of the Constitution of India the relief claimed is the setting aside of a decision by respondent, (hereinafter called 'GAIL') dated 28th December 1999 disallowing the petitioners' expenditure incurred for the angioplasty treatment of her husband and consequential directions that claims in the sum of Rs. 4,46,170/- and Rs. 1,23,200/- respectively be granted. The other directions sought is for remitting the pay revision arrears and other claims of the petitioner along with appropriate interest.

2. The petitioner, an Indian Revenue Services (IRS) Officer was deputed to GAIL as its Chief Vigilance Officer for the period from June 1997 to July 2000. Sometime during this period, her husband, Shri. Anil Bhandari was diagnosed for serious coronory disease, chest pain and he underwent coronary angiography on 1.4.1999. He had undergone an angioplasty procedure about 10 years earlier in 1989. This time the diagnosis/ the recommendation after evaluation of angiogram was Myocardial revascularisation/CABG). The report was examined by Dy. CMO(Deputy Chief Medical Officer) of GAIL, Dr. S.K. Saboo who referred the patient to Dr. Seth at Escort Heart Institute for necessary assessment on 5.4.1999. The petitioner requested for sanction which was given by the letter dated 6.4.99 on behalf of GAIL. On the same day patient was examined by Dr. Seth in the Escort Hospital. The diagnosis of Dr. Seth recorded PTCA + Stent. RCA and LLAD ROTA + Stent LCX. The patient was advised to be admitted as soon as possible.

3. Mr. Bhandari was admitted in the Escort Heard Institute and Research Centre, admittedly a referral institute as far as GAIL is concerned on 15.9.1999. He underwent PTCA+Stent to Stent + Stent ; Om -1 + PTCA ; LCX LAD and ROTA ; Stent RCA on 16.4.1999, (hereinafter referred to as angioplasty procedure). On 19.4.1999 he underwent a further angioplasty procedure.

4. It is claimed that all the blockages were removed and the patient was recovering; and was scheduled for discharge on 22/23.4.1999. He however developed fever resulting in further investigation on 24th April 1999, which revealed an infection. In a subsequent angiogram it was discovered that he had a pseudo- aneurysm in one of the arteries, a rare complication, and a life threatening situation. It is alleged that patient was advised to undergo a by pass surgery which was performed on 4.5.1999. Mr. Bhandari was eventually discharged on 8.6.1999 after 15 days of hospitalization. On 9.6.1999 the bills were directly sent by the hospital to GAIL. The necessary payments were also released.

5. It is claimed that on all relevant and material times when patient was under treatment, Dr. Saboo of GAIL was apprised of the latest development and he had confirmed that Dr. Seth was reliable doctor. During the period from 6.5.1999 to 3.6.1999 the doctors at the Escort has advised administering of Primaxin injection every six hours. It is claimed that this injection was not available with the hospital and the petitioner had to procure it urgently. Being an imported drug and readily not available off the shelf, the petitioner managed to procure them with some difficulty in small lots. It is alleged that average cost of the injection was about Rs. 1100/- and the petitioner had spent an aggregate of Rs. 1,23,200/- on these injections. The petitioner relied on a certificate issued on 8.6.1999 by the Escort Hospital that Primaxin injection was administered to the patient every six hours between 6.5.1999 to 3.6.1999 and they were essential for his treatment and recovery. By the letters dated 21.10.1999 and 28.12.1999 impugned in these proceedings, the GAIL has taken position that in the absence of any vouchers or bills regarding purchase of the injections it is not possible to reimburse the amount claimed and also that an amount of Rs. 4,46,170/- being total expenditure for the angioplasty procedure and consumable utilized for the purpose would be recovered from the petitioner. She protested against the letter of representations dated 4.1.2000 stating that the angioplasty treatment was one recommended upon which was undertaken by her husband but on account of infection which was a rare complication he had to undergo by pass surgery. She also claimed that Dr. Saboo was aware of all the developments and GAIL could not allege that the angioplasty procedure was unnecessary or that it should not have been undertaken. Thereafter a series of correspondence was exchanged on the subject and the GAIL by its letters consistently took the view that reimbursement of Rs. 1,23,200/- was not possible and further that the petitioner had to refund an amount of Rs. 4,46,117/- towards cost of angioplasty treatment.

6. The petitioner alleges that the decision not to reimburse the cost of the Primaxin injections and also to recover the amount of Rs. 4.1 lacs is arbitrary and opposed to the Rules and regulations of GAIL. It is also claimed that the angioplasty procedure was one of the recommended options which could have been taken; it was within the knowledge of the Dy. CMO who never objected to it at any time.

7. The respondents have denied the claims of the petitioner. The respondent GAIL has admitted to the basic facts about the petitioner having been admitted to the Escort Hospital pursuant to evaluation done on 1.4.1999. It is also not denied that the patient was referred by Dr. Saboo to Dr. Seth of the Escort Heart Institute. The point of departure is how the GAIL has viewed the medical records for the purpose of reimbursement of the medical claims of the petitioner. According to the GAIL the patient was advised Coronary Artery, By Pass Grafting (CABG) Surgery. It is claimed that he was not keen to undergo surgery and he therefore, opted for angioplasty which was done on 16.4.1999 and 19.4.1999. This procedure was subsequently followed by an angiogram which showed pseudo aneurysm, near the site of the stents implemented. It is alleged that the total expenditure incurred was Rs. 8,67,080/-. Of this the expenditure towards angioplasty was Rs. 4,46,170/-. It is alleged that this amount of Rs. 4,46,170/- was payable by the petitioner, since her spouse did follow advice of the attending doctor. It is claimed that this conclusion was on the basis of a letter written by Executive Director, Dr. Naresh Trehan. Since considerable reliance has been placed upon that letter dated 29.7.1999, the relevant portion of the letter is reproduced below.

Dear Dr. Sahoo,

With reference to your letter dated 28/5/99 wherein you have asked for clarification regarding the procedures performed on Mr. Anil Bhandari. Mr. Anil Bhandari was admitted here on 15.4.1999 as a case of coronary artery disease with triple vessel disease with hypertension. He had previous history of old silent AWMI and post PTCA (1989).

He underwent CART on 01.04.99, which revealed triple vessel disease with normal LV function. In view of his symptomatic status and CART findings, Mr. Bhandari was advised Coronary Artery Bypass Grafting Surgery. The patient however was not keen to undergo surgery at that time and he opted for angioplasty which was done on 16.4.99 and 19.4.99.

The prolonged hospitalisation subsequently was related to pyrexia of unknown origin for which no definite cause was found a repeat angiogram was carried out approximately two weeks after the angioplasty procedure, which showed a pseudo aneurysm in the LAD, proximal to the site of stent implantation. He was taken up for surgery on an urgent basis on 04.05.99. Coronary Artery Bypass Grafting x 3 was done on 4.5.99. He was treated with 4 weeks of antibiotics because of the possibility of infected pseudo aneurysm. Mr. Bhandari was discharged on 06.06.99 in a satisfactory condition.

8. As far as the reimbursement of Rs. 1,23,200/- is concerned, the GAIL states that as per its Rules, the cost of medicines and medication can be refunded only if claims are duly supported, by vouchers, and other documents. Since the petitioner's claim was unsupported by any documentary evidence it was not allowed.

9. The GAIL has, therefore, defended its stand in refusing to refund Rs. 1,23,200/- and seeking recovery of Rs. 4,46,170/- by adjusting the amount payable to the petitioner towards arrears in the sum of Rs. 2,81,980/- and asking her to repay Rs. 1,64,190/- as the balance amount (on account of disallowance towards angioplasty procedure for the sum of Rs. 4,46,170/-).

10. Mr. Rakesh Tiku, learned counsel submitted that a careful analysis of the angiogram report dated 1.4.1999, with the evaluation by Dr. Saboo of GAIL, Dy CMO and the diagnosis of Dr. Seth of the Escort Hospital on 6.4.1999 reveals that angioplasty was one of the options available to Mr. Bhandari. He submitted that the expression 'myocardial revascularization/CABG' indicated the option either to undergo angioplasty or by pass surgery. Even the contemporaneous evidence by way of Dr. Anil Seth's recommendation did not rule out angioplasty. Hence the stand of the GAIL that such a procedure was undertaken at the patients' insistence was unreasonable. It was further submitted that not being an expert the petitioner or her spouse could not be expected to insist on a particular course of action if it was not feasible.

11. Learned counsel urged that from the fact that the hospital undertook the angioplasty procedure implied that it was one course of action available; if that course of action not being available, doctors being experts in the field would never have undertaken it. Hence one cannot place much store on the letter written on 29.7.1999. Learned counsel sought to place reliance on another letter said to have been written by Dr. Trehan to the GAIL in response to some query dated 28.5.1999. A copy of that letter, dated 26th June, 1999 has been place on record along with the rejoinder affidavit. The said letter reads as follows:-

Dear Dr. Sahoo,

With reference to your letter dated 28.5.99 wherein you have asked for clarification regarding the procedures performed on Mr. Anil Bhandari. Mr. Bhandari was advised myocardian revascularization /CABG. The term myocardial revascularziation stands for both angioplasty or bypass surgery which ever is deemed fit.

1. Because of Mr. Bhandari's young age and the fact that his blockages could be treated by angioplasty, it was agreed that he could undergo angioplasty as it was a very viable option. In fact he did undergo a very successful angioplasty procedure on 16.4.99 and 19.4.99.

2. The prolonged hospitalization subsequently was related to pyrexia of unknown origin for which no definite cause was found. During the course of investigations for the above a repeat angiogram was done approximately 2 weeks after the angioplasty procedure. This showed a pseudo aneurysm in the LAD, Proximal to the site of stent implantation. This is a known but extremely rare complication of stent implantation. He was therefore subjected to surgery and bypass grafts for this.

3. His hospitalization after surgery was related to giving intravenous antibiotics for a period of four weeks as was agreed between ourselves, the microbiologist and the physician. He was sent home on 8.6.99 when this course of intravenous antibiotics was completed.

I hope this answers the queries raised in your letter.

12. Learned counsel submitted that as far as the claim for reimbursement of the sum of Rs. 1.23 lakhs was concerned, the injection was not readily available and the petitioner had to procure it from time to time in small lots it was not possible for her to secure vouchers or bills in support of such purchases. The certificate issued by the Escort hospital itself indicated that the injections were utilized at a six hourly intervals each day for nearly one month. The certificate also indicated that the injections were procured on behalf of the patient privately. Hence the refusal to refund that amount was arbitrary and unreasonable.

13. Mr. Jayant Das Learned Sr. Counsel for GAIL refuted the allegations or arbitrariness. He submitted that as per the Medical Attendance Rules applicable to all the staff of GAIL, the stand taken was justified and legal. He placed reliance on Rule 5.3 to say that expenditure for such treatment and surgical procedure, as given on the advice that attending doctor can be legitimately refused by the company if the patient concerned or the individual covered by the Rules acts contrary to such advice. He also relied on Rule 6.3 and 6.4.7 to say that costs of medicines and expenditure would be reimbursed provided a proper claim, as per procedure, enclosing cash vouchers with other prescribed particulars are furnished. In this case the petitioner did not furnish any proof of having purchased the injection towards which she was claiming a sum of Rs. 1.23 lakhs. Therefore, she is not entitled to the amount in question.

14. Learned counsel submitted that the letter written by the Executive Director of the Escorts Hospital on 29.7.1999 clearly indicated that the angioplasty procedure was undergone by the patient at his request, or volition. The recommendation was to undertake by-pass surgery, which was not heeded. He also placed reliance upon the discharge summary issued by the hospital to say that it did not indicate angioplasty as one of the recommended procedures; on the contrary it mentions that by pass surgery was advised to the patient.

15. Learned counsel contended that in the light of the documents produced and the attendant circumstances, the GAIL decided not to allow the expenditure towards angioplasty. The decision cannot be termed arbitrary or unreasonable requiring judicial review under Article 226 of the Constitution of India. As per the Medical Attendance Rules particularly Rule 6.4.10, reimbursement ought to be only as per the Rules. GAIL was acting perfectly in accordance with the Rules in deciding only to reimburse the expenditure incurred towards by pass surgery and not the expenditure so far as angioplasty was concerned.

16. Before proceeding to considering the merits of the dispute it would be necessary to extract the concerned medical Rules which are reproduced below:-

4. DEFINITIONS

In these Rules unless the context otherwise requires:

a) 'Company' means the GAS AUTHORITY OF INDIA LIMITED including the Projects/Units under its management.

b) 'Authorised Medical Attendant (AMA)/Practitioner' means a registered medical practitioner qualified in modern system of medicine (Allopathic) with a minimum qualification of M.B.B.S. In smaller towns/places where M.B.B.S. or higher qualified Doctors are not available, the employee may get treatment from the Registered Medical Practitioner with Licentiate in Medicine in Allopathy.

X X X X X

e) 'Medical Attendance' means attendance in the hospital, clinic, dispensary or at the residence of the employee including such pathological, bacteriological, radiological or other methods of examination for the purpose of diagnosis as are available in Govt. Hospital/Laboratory or in any other Hospital/Laboratory as notified by the Company from time to time and such consultation with a specialist or others which the Medical Officer-in-Charge certifies to be necessary to the extent and manner within India as the specialist or Medical Officer may determine. If the tests are conducted in private hospital/laboratories, the reimbursement of such expenditure will be made up to the limit of what would have been admissible had the tests been carried out in Government hospital/laboratory or in a hospital/laboratory recognised by the Company or at prescribed rates of the Company. f) 'Patient' means a GAIL employee or a member of his family to whom these Rules apply.

g) 'Treatment' means the employment of Medical and surgical facilities as are considered necessary by the Registered Medical Practitioner and includes:

i) employment of pathological, bacteriological, radiological and other methods;

ii) supply of medicines, vaccines, sera or other therapeutic substances;

iii) Ordinary dental treatment e.g. extraction of teeth, filling of cavities with amalgam and porcelain(not silver or gold filling), Root canal treatment and gingaris of gum or specific ailments like pyorrhea of gum etc. or surgical work, bridge work. Supply of dentures, crown-work, bridge work, orthodontic work and other specialist dental work is not covered.

iv) Pre-natal confinement and post-natal treatment.

v) Insulin treatment in the case of patients suffering from diabetes at the initial stage or when the patient is hospitalised.

X X X X X X

5. ENTITLEMENT

5.1 An employee will be provided with medical facilities through authorised medical attendants and also through Government Hospital/Dispensaries or Company recognised Hospitals/Dispensaries or other Medical Practitioners authorised by the Company and can claim reimbursement of charges incurred therein, if any.

XXXXXX

5.3 Hospitalisation, surgical operation, Laboratory/ Clinical and rediological examination/treatment may be had on the advice of the attending Doctor:

Provided, however, that the above requirement may not be necessary in the following cases:

X X X X X X X

6.3 Reimbursement of such therapeutic substances as are prescribed by the Authorised Medical Attendant/Specialist under a clear prescription signed by him but exclude an inadmissible medicines, shall be allowed to the employees.

X X X X X

6.4.7. the cash voucher of the druggist should indicate name and address of the patient, name of the doctor, batch of medicines purchased etc.

X X X X

6.4.10 Expenditure incurred by an employee in obtaining medical attendance in India will be reimbursed by the Company subject to the provisions indicated in these Rules.

17. The issues involved are whether the interpretation placed upon Rules in a facts of the case particularly Rule 5.3 vis-a-vis the refusal to bear the cost of angioplasty procedure for the extent of Rs. 4,46,170/- is justified in the circumstances of this case, and whether the respondent is justified in refusing to allow the Petitioner's claim for Rs. 1.23 lakhs as cost of the paraxin injections.

18. As recorded elsewhere earlier there is no dispute about the basic facts in respect of treatment undergone by the petitioner's spouse. The parties however join issue on the question as to whether angioplasty was an available option as the petitioner asserts, or whether the patient had to undergo by pass surgery but nevertheless insisted upon angioplasty, but was later compelled to undergo by pass surgery.

19. The initial documents at the time when the patient complained of discomfort and uneasiness are in the form of the angiogram report which recommends of myocardial revascularization/CABG. The evaluation of Dr. Saboo on the basis of clinical examination and assessment of the report is not specific; he referred the patient for further treatment to Dr. Anil Seth. Dr. Anil Seth, the Cardiologist who examined Mr. Bhandari on 6.4.1999 interestingly did not recommend cardiac artery by pass grafting/ CABG as the only surgical procedure/intervention. He noticed the patient's condition and advised immediate admission. The next document chronologically is the discharge summary issued on 8.6.99. The relevant part of the said discharge summary reads as follows:

DISCHARGE DIAGNOSIS OPERATIVE PROCEDURE INCLUDING DATES

Coronary artery disease PTCA/Stent to LAD and Rota to Stent Triple Vessel Disease to RCA done on 16.4.99. Old Silent AWMI Post PTCA/LAD Rota + Stent + Stent - OM1, Rota + NIDDM PTCA ; LCX done on 19/4/99. Allergic to Penicillin, Brufen, Proxyvon Coronary artery bypass grafting x 3 was done on 4.5.99

Left internal mammery artery was used to anastomose to left anterior descending artery. Radial artery was used to anastomose to 1st obtuse marginal artery. Reversed segment of saphenous vein graft was used to bypass right coronary artery and Removal of infected stents and Repair of pseudoaneurysm.

RESUME OF HIStorY

Mr. Bhandari is a 51 year old gentleman who is a normotensive, known diabetic, non smoker with pleasing personality. He underwent PTCA to LAD in 1989 and was remained asymptomatic. He underwent TMT recently was positive for RMI. He was advised further investigations.

INVASIVE CARDIOLOGICAL INVESTIGATIONS

CART done on 01.04.99 revealed triple vessel disease. Normal LV function. In view of his symptomatic status and CART findings he was advised surgery

20. GAILs assessment that Mr. Bhandari insisted upon angioplasty procedure is premised upon Dr. Trehans letter; to some extent, reliance has also been placed upon the discharge summary. Mr. Das, learned senior counsel had also endeavored to submit that myocardial revascularization does not amount to a reference to angioplasty. It was therefore, submitted that the patient had never been advised to undergo angio plasty, but at his insistence, and volition, he underwent that procedure, contrary to advise of the attending doctor.

21. The court, sitting in judicial review, has neither the wherewithal nor expertise to evaluate technical, medical issues. Hence, I am not persuaded to enter into the merits of whether the diagnosis excluded one procedure or the other. What has to be seen in the facts of the case is whether the procedure admittedly undergone, was one reasonably available, and whether it could not have been advised at all.

22. Both GAIL and the petitioner have relied upon the letters written by Dr. Trehan. GAIL has relied upon a letter written on 29th July, 1999; the petitioner, on the letter of 26th June,1999. The two letters do indicate some contradictions; in the letter dated 29th July, 1999, the doctor has indicated that Mr. Bhandari wanted to undergo angioplasty, despite being advised by-pass surgery; in the other letter, it has been stated that angioplasty was a possible course, having regard to the patients age. The copy of the letter produced by the petitioner, dated 26th June, 1999, in the rejoinder, filed in 2004, has not been denied by GAIL.

23. In view of the above contradiction, I am of the view that the letters written to GAIL cannot be of much assistance. The issue would have to be decided on general principles, having regard to the circumstances of the case.

24. When a patient approaches a doctor, or medical practitioner, for advise, the duties which a doctor owes to his patient are that he impliedly undertakes that he is possessed of skill and knowledge for the purpose. The doctor when consulted by a patient owes him a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The doctor, it has been held, must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Such duty of care is neither the very highest nor a very low degree of care and competence judged, in the light of the particular circumstances of each case is what the law requires ( Ref Laxman Balkrishna Joshi v. Trimbak Bapu Godbole ).

25. The Supreme Court, in its decision reported as Indian Medical Assn. v. V.P. Shantha, , held as follows:

The standard of care which is required from medical practitioners as laid down by McNair, J. in his direction to the jury in Bolam v. Friern Hospital Management Committee 1957 (2) All ER 118 has been accepted by the House of Lords in a number of cases. (See: Whitehouse v. Jordan 1981 (1) All ER 267; Maynard v. West Midlands Regional Health Authority 1985 (1) All ER 635; Sidaway v. Governors of Bethlem Royal Hospital 1985 (1) All ER 643.) In Bolam McNair, J. has said: (All ER, p.121)

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.

26. If one views the issues involved in these proceedings, and considers them in the perspective of the duties owed by the doctor to the patient, it would be apparent that no reasonable medical practitioner would have suggested a course of action which was unavailable. In this case, this would mean that at the peril of being hauled up for negligence, in the event of any complication, the Escorts hospital, and its doctors would have satisfied the whim, or desire of Mr. Bhandari, for undergoing angioplasty, if such a course was not feasible. GAIL has not suggested that such an eventuality occurred, and that the hospital or the doctors undertook something that was untenable, or was not feasible, merely to satisfy the whim of the patient. Therefore, the conclusion necessarily has to be that angioplasty was one of the courses of treatment open, and was opted, after due evaluation by the doctors; for some reason, admittedly a rare aneurysm leading to infection occurred, leading to by-pass surgery. I am therefore, of the opinion that the stand of GAIL, demanding Rs. 4,46,170/- by adjusting the amount payable to the petitioner towards arrears in the sum of Rs. 2,81,980/- and asking her to repay Rs. 1,64,190/- as the balance amount (on account of disallowance towards angioplasty procedure for the sum of Rs. 4,46,170/-) is unreasonable, and arbitrary.

27. On the second aspect, as to a claim for Rs. 1,23,200/- towards the cost of injections, the petitioner has placed reliance on a certificate issued by Escorts Institute, to say that such medication was actually used. The GAIL has relied on its rules to say that in the absence of any supporting documents, vouchers or materials, such claim cannot be granted. The petitioner has not produced any materials, even in these proceedings, indicating the cost of the medication. I am of the opinion that having regard to the clear mandate of the rules, particularly Rule 6.4.7 and 6.10, which prescribe that vouchers and supporting documents have to accompany the claim, the denial to refund such an amount is neither arbitrary nor unreasonable.

28. In view of the above findings, the demand of GAIL, for Rs. 4,46,170/- by adjusting the amount payable to the petitioner towards arrears of salary revision, in the sum of Rs. 2,81,980/- and asking her to repay Rs. 1,64,190/- as the balance amount (on account of disallowance towards angioplasty procedure for the sum of Rs. 4,46,170/-) is hereby quashed. GAIL is directed to pay the said amount of Rs. 2,81,980/- (Rupees two lakhs, eighty one thosand, nine hundred and eighty) to the petitioner, with interest @ 6% p.a. from 1-1-2001 till 31-12- 2005, within eight weeks from today. In the event of default, the rate of interest shall be 10% p.a. from the expiry of the said eight weeks period, till the actual payment. The writ petition is allowed to the above extent. No costs.