National Consumer Disputes Redressal
St. Gregorious - Mission Hospital vs Roji George And Ors. on 2 November, 2007
Equivalent citations: I(2008)CPJ68(NC)
ORDER
B.K. Taimni, Member
1. These three appeals arise from a common order passed\by the State Commission, upon a complaint filed by Roji George and others (appellants in Appeal No. 125 of 2000). Appellants in Appeal No. 263 and 8 of 2000, were the opposite parties Nos. 2 and 3 respectively before the State Commission.
2. Briefly stated the facts leading to filing the complaint were that the complainant Roji George had some nasal problems, for which he approached the second respondent Dr. P.C. Koruthu, ENT Surgeon for correction of deviated nasal septum to left with enlargement of inferior concha. Dr. Koruthu advised 'septoplasty' for which Roji George was admitted in the St. Gregorious Mission Hospital on 30.6.1997 and was taken-up for surgery on 1.7.1997. After pre-operative anaesthetic test, the surgery was started at 9.45 a.m. on 1.7.1997 under general anaesthesia. But later on it came to the knowledge of the complainant that when the surgery was started there was fall in B.P. of complainant Roji, for which certain medicines were given but later on the patient Roji lost his heart-beat and went into cardiac arrest. There was delay in his revival of 3 to 5 minutes, it is this which resulted in damage to the brain. Another Anaesthetist from Pushpagiri Hospital, was called but patient Roji George continued to be unconscious, and was shifted to Pushpagiri Hospital for better management as the St. Gregorious Mission Hospital was not having the required equipment/facility.
3. Roji George was treated in the Pushpagiri Hospital as an inpatient for 4 months. As there was no progress and he continued to be unconscious--brain dead, he was referred to Medical College Hospital, Kottayam, wherein it was opined that Roji George will never speak and, chance for betterment was ruled-out, hence he has to live in a vegetative life since then, as a result of damage to the brain caused by the opposite parties before the State Commission on account of medical negligence. It is in these circumstances, a complaint was filed before the State Commission praying for compensation of Rs. 10 laidi plus other amounts for equipment and expenditure incurred, which was contested by the opposite parties. All the parties were cross-examined statement of Dr. V. Mahadevan, expert/specialist (Anaesthesia), was also recorded and he was also cross-examined. The State Commission after hearing the parties and perusal of material on record and going through the medical record, held Dr. Kothuru, ENT Surgeon and St. Gregorious Mission Hospital, negligent. The Anaesthetist was exonerated. The surgeon and the Hospital were directed to pay an amount of Rs. 6 lakh, which was to be kept in FD to enable the parents of Roji George to meet the fund requirement for maintenance of the Roji George from the interest earned on this amount. Another amount of Rs. 2 lakh was given to the parents of Roji George towards charge of medicines spent by them and Rs. 50,000 for mental agony. Not satisfied/aggrieved by this order, three separate appeals have been filed before us. While Appeal No. 263/2000 filed by Dr. Kothuru and Appeal No. 8/2000 by the Director, St. Gregorious Mission Hospital, for setting aside the order of the State Commission, the Appeal No. 125/2000 is filed for enhancement of compensation awarded by the State Commission.
4. We heard the learned Counsel for the parties as also perused the medical literature and other material brought on record.
First Appeal No. 263 of 20005. It is the case of Dr. Kothuru that whatever was done by him, was as per medical practice and he had taken due care as envisaged under medical jurisprudence to treat the child. Hence no medical negligence can be fasten on him. It is important to note that the State Commission has unequivocally returned the finding that Dr. Kothuru was negligent in administering the patient with 2% Xylocaine with adrenaline using a 10 ml syringe and needle, while Roji George was already under general anaesthesia and that too without sharing this part, with the Anaesthetist Dr. Elizabeth Thomas, who was monitoring the patient in the O.T. It is pertinent to note, as discussed in the order of the State Commission that in the first instance, the joint reply was filed by the Anaesthetist and Dr. Kothuru, and in this there is no reference about this particular episode, i.e., about injecting the material inside the nostril of the patient. The cat came out of the bag, only when the Anaesthetist filed an additional written statement before the State Commission. In our view, it is very serious and unbecoming attempt on the part of a trained doctor to withhold the critical information not only from the Consumer Fora, but also from the Hospital. It is quite clear and admitted position as per record, that this particular action on the part of Dr. Kothuru was neither mentioned in the written statement filed by him before the State Commission nor in the surgical notes, which can be said to be an apology of deficiency on the part of the appellant Dr. Kothuru. When we see the material on record, especially the surgical notes on which the learned Counsel for the appellant relies especially page 153 of Vol. I, it is quite clear that Roji George was a known case of Bronchial Asthma and was under treatment. As per hospital record dated 26.6.1997, it has been observed that chest is clear as also on 30.6.1997, yet, certain tests to be carried out in the patient Roji George finds mention in the hospital record. Learned Counsel for the appellant has not been able to satisfy us or show us that at any stage these tests were carried out? These tests were essential especially keeping in mind the fact that the patient was a known case of Asthma and there could have been some bearing after the Anaesthesia on the patient was administered.
6. If on 24.6.1997, as per material on record, the details of drug for treatment of Asthma being taken by the Roji George was not available and since it was not a case of emergency it was the duty of the Doctor to satisfy himself about the treatment which the patient was undergoing, so that it does not come into any clash with the surgery. Not ascertaining the drug being consumed by the complainant before the operation, not getting any test carried out prior to surgery, itself is a clear case of medical negligence on the part of the appellant Dr. Kothuru, especially when it was not a case of emergency. We are at pains again to point out that as per surgery record of 1.7.1997, there is no reference whatsoever of the appellant administering Xylocaine with adrenaline through the nostril. The cross-examination of the appellant on this point makes a very sad reading. This is what he has to say about this episode in his answer:
Q. Reply notice P 11 (Ext.) shown to the witness.
A. I myself send the reply I went to make a correction--Packing, I did not mention in Ext. P11 because both are same medicines. It comes under preparation of patient to reduce bleeding during operation and to reduce pain after operation and it has decongestant activity. In para 16 of Affidavit mentioned about injection of Xylocaine with adrenaline, but 1 did not mention it in the version. Version was prepared by the Advocate. The Advocate did not ask me about this. I gave the copy of reply prepared by the Advocate for the preparation of version.
And goes on to state:
Q. You never get permission to give the injection. A. No, with the permission, I did it. Q. Did you record anywhere in the case record. A. Usually it is not recorded. (Emphasis supplied)
7. We are simply appalled at the callous in difference shown by the appellant in treating the patient. What he did was to administer Xylocaine, which is local anaesthesia, when the patient was already under general anaesthesia in the operation theatre. No medical literature or expert opinion has been led by him to show that this action was in conformity with any accepted medical practice. As per material on record, he was stopped from administering this injection as soon as the Anaesthetist noted it. In the written version filed by the Anaesthetist Dr. Elizabeth Thomas, she has stated, "She also noticed the second opposite party was injecting inside the nostrils of the patient 2% Xylocaine with adrenaline using a syringe without the permission. She immediately requested him to stop injection and within minutes the heart was arrested which was diagnosed by absence of pulse. It has to be mentioned that the heart was arrested while second OP was injecting 2% Xylocaine with adrenaline into the nostrils of the patient...." She has said the same thing in the affidavit and has been extensively cross-examined but nothing contrary has been shown/brought on record. Even before us, the appellant has not been able to show us anything in support of his action, which resulted in cardiac arrest from which the patient was revived, but it could be done only after two to three minutes. By this time the patient had become brain dead.
(Emphasis supplied)
8. As clearly laid down in catena of judgments latest being that of Jacob Mathew v. State of Punjab and Anr. , there is a duty of care which the Doctors owed to the patient. We do not expect the Doctor to be of the high standard but the duty of care demands that they perform their duty and act in a manner, which is followed by large body of Doctors. There is nothing before us to show that whatsoever was done by Dr. Kothuru was as per accepted medical practice or followed by large body of doctors, in the absence of which, above medical negligence on account of failure to take due care is writ large in the circumstances mentioned earlier.
9. In view of above, we do not find any ground to interfere with the well-reasoned order passed by the State Commission holding the appellant guilty of medical negligence.
First Appeal No. 8 of 200010. Appellant Hospital, who has been held vicariously liable for medical negligence because the whole episode resulting in the patient Roji George coming out brain-dead happened in the Hospital. The Hospital has also, in our view, conducted itself in a very unbecoming manner, especially when in the written version filed before the State Commission in order to escape the responsibility or liability, they took the plea that neither Dr. Elizabeth Thomas nor Dr. Kothuru were their employees. In the cross-examination it has come very clear that they were employees of the Hospital. This is the last thing one expects from a reputed hospital. We have also seen the affidavit filed by the Secretary of the Hospital appearing at page 68 of Vol. I. This has been filed by one Dr. Alex Paul, Secretary of the Hospital. We are not very much surprised that in this affidavit there is no reference of whatsoever about 2% Xylocaine with adrenaline being administered to the patient after surgery was started at 9.45 a.m. In fact something contrary to record has been mentioned in para 11 of the affidavit which reads as follows:
11. The patient was taken to the theatre at 8.45 a.m. and at 9 a.m. Nasal Packing of Xylocaine 2% with adrenaline was done and this was removed after 15 minutes. Anaesthesia started (induced) at about 9.45 a.m. Theopentone and celin were used for induction followed-by pavlon.
11. This affidavit in any case loses relevance for the simple reason that this has been filed by the Secretary and its verification states, "all the facts stated above are true and correct to the best of my knowledge and belief". It is admitted position of the parties, including the hospital, that the Deponent Dr. Alex Paul was nowhere on the scene at the time of surgery. This challenges the very base of this deponent, which we find completely wrong and untrustworthy. A plea is advanced by the learned Counsel for the Hospital that it is drafted by a Counsel. We do not buy such argument at this stage as no corrective measure subsequent to filing this affidavit has been brought on record. As if above was not enough, as per material on record there was no cardiologist or neurologist available. This has come out clearly in the cross-examination of Dr. Elizabeth. In absence of these facilities, this would certainly amount to negligence on the part of the Hospital.
12. In the above circumstances, the Hospital would be vicariously liable for the negligence on the part of their employees and not having sufficient staff to deal with emergencies. The appellant in this case has not been able to show us as to why they are not liable as held by the State Commission, in view of which we see no merit in this appeal, hence dismissed.
First Appeal No. 125 of 200013. This appeal is filed by the complainants for enhancement of compensation of Rs. 10 lakh with interest @12% p.a. instead of Rs. 6 lakh as awarded by the State Commission. There is no disputing the fact that Roji George is now living a vegetative life and will require continuous help and attention from some one who can look-after him as also will require some assistance by way of medicines as also by physiotherapy. We had the benefit of hearing Dr. Elizabeth who was present at the time of hearing. It is admitted position that a nurse for 8 hours to take care of the complainant Roji George would require about Rs. 5,000 per month in Kerala. The complainant will also require physiotherapy twice a week, which cost Rs. 150 per visit and it will come to Rs. 1,200 per month and medicines required in such case would be approximately Rs. 300 per month, thus, in all, requiring a minimum expenditure of Rs. 6,500 per month, meaning thereby requiring approximately Rs. 78,000 per year. In order to generate this amount of income, a minimum amount of Rs. 7.5 lakh shall be required to yield to meet the monthly requirement of looking after the complainant Mr. Roji George, who is living admittedly a vegetative life, in view of which, this appeal is allowed and the order of the State Commission is modified to the extent that complainant shall be entitled to a compensation of Rs. 7.5 lakh instead of Rs. 6 lakh as awarded by the State Commission from the same parties, namely, Dr. Kothuru and Hospital. Other reliefs are not being interfered. It is directed that the parents of Roji George will keep this money in a nationalised bank in a long term FD and shall use this amount for the upkeep and maintenance of Roji George.
14. We are informed that Rs. 8.55 lakh stand deposited with the State Commission, break-up of which is as follows:
1. Director, Gregorious Mission Hospital Rs. 2,55,000
2. New India Assurance Co. Ltd. Rs. 2,50,000
3. Dr. P.C. Kothuru Rs. 3,55,000
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Total: Rs. 8,55,000
15. Since the Hospital has a limited coverage of Rs. 2.5 lakh against any such contingencies and this has already been paid by New India Assurance Company, the balance of the amount being awarded by this order and by the State Commission shall be borne equally by Dr. Kothuru and St. Gregorious Mission Hospital.
16. Amount lying with the State Commission shall be paid to the complainants along with accrued interest. The remaining amount of Rs. 1.5 lakh shall be paid by the Hospital and Dr. Kothuru within a period of 6 weeks from the date of passing of this order, failing which it shall carry interest @ 10% p.a. All the three appeals stand disposed of in above terms.