National Consumer Disputes Redressal
Baby Preeti Goel (Minor) vs Batra Hospital & Medical Research ... on 6 November, 2006
NCDRC NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION No. 166 of 1996 Baby Preeti Goel (Minor) Complainant (s) Versus Batra Hospital & Medical Opposite Party (s) Research Centre & Anr BEFORE: HONBLE JUSTICE SHRI K S GUPTA, PRESIDING MEMBER HONBLE DR P D SHENOY, MEMBER. For the Complainant: Shri K S Sharma, Advocate For the Opposite Party Shr Manvendra Verma Advocate OP No.1 & 3 Shri Yogesh Gupta, Advocate OP No. 2 Shri R C Mishra, Advocate OP No. 6 Dated the 6th November, 2006. ORDER
DR.P.D.SHENOY, MEMBER Whether abdominal surgery conducted by the surgeon on the child who was suffering from acute abdominal pain and fever for several days after conducting certain tests including x-ray which were indicative of sub-acute intestinal obstruction which left a scar on the abdomen can be construed as a case of medical negligence. The simple answer to the question is: No. The complainant Baby Preeti Goel minor filed a complaint through her father Shri Ramesh Kumar Goel stating that she developed abdominal pain and with persistence fever was taken to Batra Hospital and Medical Research Centre, Delhi Respondent No. 1, for check-up and treatment on 16.08.1994. Dr S Bagai, Pediatrician respondent No. 2 prescribed several tests inclusive of X-ray on 16.08.1994 and she was hospitalized as per his recommendations. The complainant alleged that respondent No. 2 has created alarming situation regarding the condition of the complainant. On mere suspicion of intestine obstruction, the complainant was operated on 19.08.1994 and was discharged on 26.08.1994. It is alleged that while going through prescription dated 01.09.1994 the father of the complainant noticed that the respondent had tried to bring the factum of gall bladder operated upon through back door though the question of gall bladder never arose prior to or even after the operation. The complainant became suspicious, and examined the documents available with the complainant. The complainants father then got it verified from some experts and was astonished to find that the operation was uncalled for and not required at all.
The complainant further alleged that the opposite part failed to carry out all the tests before deciding and performing the operation for intestine obstruction. Hence they were clearly guilty of grave negligence and gross professional mis-conduct. The vertical cut in the abdomen has caused a permanent scar and defacement, which throughout her life will pose certain psychological, as well as physical problems to the complainant. The trauma of operation in such an early and tender age is going to leave a permanent scar on the complainant. Accordingly, the complainant claimed damages to the tune of Rs. 25 lakhs.
Case of the Opposite Party:
The complainant was brought to the Hospital during the morning OPD on 16.08.1994 in a critical stage. The child has been very unwell for 10-12 days with complaints of fever and abdominal pain. O P No. 2 who examined the complainant a four year old female child and found her to be febrile, ill-looking with a tender right hypochondrium and palpable spleen. The parents took back the child to their home and brought her back after the childs condition worsened. The child was admitted in the Pediatric Intensive Care Unit due to the toxicity of the child. Various tests (Haemotology, Biochemistry, Cultures, Clotting profiles) X-rays of the (Chest and abdomen) medically required, justified and considered essential in the circumstances were performed to arrive at a correct diagnosis.
The treatment started with intravenous fluids, injection ciprofloxacin and soft diet orally with vital parameters charting 6 hourly. The child was seen by the resident doctors on regular intervals and reviewed by the respondent No. 2 at least thrice daily through out her entire hospital stay. On the night of 17.08.1994 the child had marked increase in abdominal tenderness and passed on blackish coloured stool indicating Malena. On 17.08.1994, an x-ray of the abdomen was done urgently keeping the child on an empty stomach. The x-ray clearly showed multiple fluid levels with generalized haziness on the background evidence of some degree of intestinal obstruction due to an infective Pathology in all probability. The child had fever between 101 and 102 degrees F., and in the mean time the Hemoglobin level had dropped to 9.7 gm% and counts increased to 14,500. There was a stronger Polymorphic response (88% poly.) On 18.08.1994 the clinical impression on reviewing all the reports was that the child was suffering from primary peritonitis (inflammation of the covering layer of the intestine) or sub-acute intestinal obstruction. On the same day Dr Fotedar (Anaesthic Consultant) also examined the child pre-operatively and noted her to be sick, in pain and her abdomen being distended. Various test reports, the condition of the child and the necessity of surgery was duly explained to the parents of the complainant pre-operatively and necessary consent for performing surgery on the child was voluntarily given by the father for Exploratory Laprotomy, and the father was fully appreciative of the condition of the child.
No alarming situation was created at all. The concern of the O Ps was to arrest the deteriorating condition of the child and to give as much relief as possible in the shortest possible time. The decision to operate was neither hasty nor uncalled for.
The parents of the child did not complain about the operation but instead they were appreciative of the care taken for saving the life of the child.
The operation record of the complainant dated 18.08.1994 inter-alia reveals as under :
Right para medical incision taken. After exploration peritoneal Fluid came out. There was fluid around the Gall Bladder. Empyaema gall bladder patchy.
The surgery of the child was absolutely essential in the circumstances. Due to fast deterioration of the childs condition, surgery carried out in time not only saved her life but also prevented the infection from spreading to other parts of her body as well.
Submissions of the learned Counsel for the complainant :
He started his argument stating that the Medical Board of AIIMS has given a cryptic opinion stating that Clinical evaluation including x-rays and other investigations had revealed acute abdomen necessitating surgical exploration, and there was no negligence in the management of this case. He stated that the Board constituted by AIIMS has not given the detailed reasons for arriving at this conclusion which is necessary in the case of medical negligence.
He quoted Exhibit C/F from the operation record wherein the material forwarded to pathology department for examination Bile c/s which indicates that there was no pus in the abdomen but only bile.
The statement made by Dr B D Dwivedi in his cross examination wherein he has stated that it is incorrect that if gall bladder is punctured only pus comes out. In the case of this patient pus came out.
Therefore, the operation record is a clear fraud played on the complainant and accordingly this case is covered by the decision of the Supreme Court in S P Chengal Varaya Naidu vs Jagannath, (1994) 1 SCC 1 wherein it has been held that where a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. A judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law.
The four line unreasoned opinion of the Medical Board (AIIMS) is also based on these false, fabricated and forged treatment documents and therefore, the same looses its authenticity and cannot be given any credence by this Commission and the report of the Board itself becomes meaningless, he argued.
The surgeon has not signed the operation records which raises the doubt about its authenticity. He quoted from the cross examination of Dr Dwivedi which reads as under:
Post operation notings were recorded immediately after the operation by the Registrar on my supervision.
It is correct that at portion encircled at point C of page 20 of documents, there is over-writing on the date but it is incorrect that date is 19.08.1994. In fact it is 18.08.1994.
It is correct that there is overwriting in the date encircled at point D of the document placed at page No. 25 of the documents accompanying the written statement. This overwriting was done by the registrar and I cannot explain the reasons for overwriting.
The Ld Counsel submitted that though the patient was operated on 19.08.1994 it has been wrongly urged that she was operated on 18.08.1994. To support his contention he quoted the final bill of Batra Hospital wherein the O T Charges, Anaesthesis, IV Fluids etc., are mentioned against 19.08.1994, but in the cross examination both the respondents No. 2 and 3 have stated that the patient was operated on 18.08.1994.
The learned Counsel referred to the extracts of medical text submitted by the respondents. In chapter 49 of Intestinal Obstruction the book written by Lone and Bailey wherein it is mentioned that clinical features of acute intestinal obstruction. There are four important symptoms and signs : pain, vomiting, distension and constipation. These must be carefully looked for in each case.
In the present case there was neither vomiting nor constipation but still the treating doctors have concluded that there was abdominal obstruction. The Hospital records of 17.08.1994 indicate that the patient passed black stool once. On 18.08.1994 indicates that the patient has passed stools. The learned Counsel for the complainant drew our attention that neither the date or time nor the signature of the treating doctor can be seen.
He referred to the cross examination of opposite party No. 3, wherein he has admitted that it is correct that gall bladder can distend if the patient is not given food for two to three days. It is correct that the patient in this case was not given food for about two days. The gall bladder could have distended on this account. (volunteered) but it would not have patchy dis-colouration, which the gall bladder of this patient had. Dr Dwivedi in his cross examination has admitted that no ultra-sound test was done. The Ld Counsel drew out attention to the medical literature in this case connected wherein it is mentioned that the x-ray is extremely valuable but under certain circumstances may also be misleading. In non-strangulating complete small-bowel obstruction, x-rays are almost completely reliable. Distention of fluid and gas-filled loops of small intestine usually arranged in a step ladder pattern with air-fluid levels and an absence or paucity of colonic gas are pathognomonic.
The Ld Counsel submitted that under certain circumstances it can also be misleading, hence, barium enema was necessary. In this case the patient did not suffer from nausea or vomiting which are two clear cut corroborative symptoms for arriving at a conclusion of abdominal obstruction. In the patients community, scar on the abdomen is being construed as a bad omen which will have an adverse impact of getting a suitable match at the time of her marriage.
Hence, he submitted that considering all these aspects and the life long scar on the abdomen which has resulted in mental trauma by the performance of surgery which was not required, the complainant deserves to be compensated to the tune of Rs.25 lakhs.
Submissions of the learned Counsel for the Batra Hospital and Opposite Party No. 3 :
The learned Counsel submitted that the patient was suffering from fever for the past 10-12 days and having pain in the abdomen due to infection and the patient was admitted on the night of 16.08.1994 in the ICU wherein the patient are examined at every hour and sometimes every minute. Abdomen was bloated with a girth of 49 cms.
He also submitted that pus and bile together were sent for micro-biology tests which indicated that the patient had Staph Albus Bacteria. After antibiotic treatment on 18.08.1994 pus cell were seen but no bacteria. ESR was 83. High ESR shows infection as the normal range is less than 10. The situation was discussed with the parents stating that the child was clinically examined and found that she was suffering from peritonitis. X-ray of the abdomen showed that there was multiple fluid levels. Abdomen was guarded by the patient which means that it was very painful. X-ray had indicated evidence of obstruction. Pre-anesthesia check-up indicated that the patient was suffering from abdominal pain and was crying and the pulse rate was 120 per minute.
Shri Ramesh Kumar father of the patient had given written consent for the operation of Exploratory Laporotomy on 18.08.1994. The operation was performed on 18.08.1994 as per anaesthesology record of the hospital dated 18.08.1994.
Learned Counsel then referred to the cross examination of the complainant - Shri Ramesh Kumar Goel father of the patient. He has stated in his cross examination as follows :
I am an advocate by profession. I am practicing on criminal side.
Since the condition of my daughter was serious I had to bring her to the hospital at about 09.00 P M. I would not able to say whether abdomen pain can be called a case of emergency. It is for the doctor to decide.
It is correct that my daughter was having fever for the last 10 to12 days prior to 16.08.1994 when she was brought to the hospital and she developed abdomen pain on 16.08.1994.
It is correct that my consent was obtained for operating my daughter.
I do not know whether Chelecystostomy is a procedure for draining out pus from gall bladder. It is correct that a tube was put which was visible outside the abdomen but I do not know for which purpose it was put. It is correct that some fluid was coming out from the said tube but I do not know whether it was bile. It is incorrect to say that I was warned to be careful and to ensure that the said tube is not disturbed.
Dr Ravi Kumar who has now migrated to USA had examined the X-ray and other documents and he told me that the surgery was not required. Similar opinion was given by another doctor whose name I do not remember. Dr Ravi Kumar was a physician. It is correct that I have not filed the affidavits of the said doctors.
I dont have any knowledge of medical science. I do not know the qualifications of doctor Ravi Kumar whether he was only MBBS or MD etc. Similarly, I do not know the qualifications of the other doctor whom I had consulted whose name I do not remember.
Complainant had wanted that medical Board of AIIMS be constituted for which they had also agreed. Laparoscopic surgery was not common in 1994. X-ray of abdomen shows multiple fluid levels, hence, ultra sound test was not necessary in this case and surgery was essential.
In this case distention of fluid and gas-filled loops of small intestine usually arranged in a step ladder pattern with air-fluid levels and an absence or paucity of colonic gas are pathognomonic. This can be seen from the diagram drawn by the doctor on the Progress and Doctors Record Sheet of Batra Hospital & Medical Research Centre dated 18.08.1994 after taking x-ray of the abdomen.
The extract from the medical text of Lone and Bailey indicates as follows :
Conservative treatment must be abandoned : If the pain and tenderness spreads across the abdomen and the pulse-rate rises, cholecystectomy should be undertaken forthwith. In the very ill and the elderly patients it may be advisable to limit the operation to Cholecystostomy usually a dependable, safe operative procedure.
In the Harrisons book on Peritonitis and Signs it is mentioned that Peritonitis may be due to entry of bacteria into the peritoneal cavity from a perforation in the gastrointestinal tract or from an external penetrating wound. It may be secondary to severe chemical reactions from the release of pancreatic enzymes, the digestive juices of the upper gastrointestinal tract, or bile as a result of injury or perforation of the intestine or biliary tract. Patients with systemic lupus erythematosus may have bouts of peritonitis during attacks of their disease.
He further quoted that clinical features of this disease are as follows :
These usually consist of increasing abdominal pain, distention, nausea and vomiting, inability to pass feces or flatus, fever, hypotension, tachycardia, thirst and oliguria. On physical examination the patient appears acutely ill and febrile and has a variable degree of abdominal distention. The abdomen is usually acutely tender and tympanitic, often with rebound tenderness. The location of the pain and tenderness depends on the underlying cause and whether the inflammation is localized or generalized.
Ld Counsel for the complainant submitted that the paper book should be re-submitted to AIIMS for second opinion. The ld Counsel for OP No. 6 submitted that they stand by the arguments of the ld Counsel for OP Nos. 1 & 3. Ld Counsel for OP No. 2 submitted that there is a categorical findings from the AIIMS, there is no need to refer the same back to them.
FINDINGS :
(i) What was the condition of the patient when she was admitted to Batra Hospital ? Baby Preeti Goel was suffering from persistent fever, severe abdominal pain with distention. Abdomen was having a girth of 49 cms. The child has been very un-well for the past 10-12 days, febrile, ill-looking with a tender right hypochondrium and palpable spleen. The very fact that the parents took back the child to their home and brought her back when the condition became worsened and had to be immediately admitted in the Pediatric Intensive Care Unit this shows that it was a serious case. In his cross examination, the father of the patient has submitted that he is an advocate by profession and he was practicing on the criminal side. This means that he is a well educated man. He has admitted in his cross examination that since the condition of my daughter was serious I had to bring her to the hospital at about 09.00 P M. I would not be able to say that whether abdominal pain can be called a case of emergency. It is for the doctor to decide. It is correct to say that my daughter was having fever for the last 10-12 days prior to 16.08.1994 when she was brought to the hospital. So this case non doubt conclusive that the petitioner was brought to the hospital in a serious condition. He also admitted that it is for the doctors to decide whether there was any emergency in this case.
(ii) Then the issue arises why did he file this complaint ? In his cross-examination Mr Ramesh Kumar Goel, father of the patient has revealed the reason. He says that Dr Ravi Kumar who has now migrated to USA had examined the X-ray and other documents and he told the complainant that the surgery was not required.
Similar opinion was given by another doctor whose name he does not remember. Dr Ravi Kumar was a physician. It is correct that I have not filed the affidavits of the said doctors. I do not have any knowledge of medical science. I do not know the qualifications of doctor Ravi Kumar whether he was only MBBS or MD etc. Similarly, I do not know the qualifications of other doctor whom I had consulted whose name I do not remember. So this leads us to the conclusion that Dr Ravi Kumars qualifications are not known to him and the name and qualifications of other doctor whom he had consulted are also not known to him. Being an advocate, he is the best person to know the evidentiary value of this statement.
(iii) Whether he has given the consent ? We have gone through the consent form which is in the file. Complainant has also stated that it is correct that my consent was obtained for operating my daughter. He is an educated person who was present throughout the days when the child was admitted in the hospital and he was interacting with the hospital authorities.
(iv) Whether proper tests have been conducted before undertaking the operation?. Complainant has alleged that the respondent failed to carry out all the tests before performing operation for intestinal obstruction. It is clear from the medical records that the hospital had conducted various tests Haemotology, Biochemistry, Cultures, Clotting profiles x-rays of the (Chest and abdomen) which were medically required, justified and considered essential in the circumstances to arrive at a correct diagnosis. X-ray showed multiple fluid levels and on the background evidence of some degree of intestinal obstruction due to infective pathology. Hence, to say that no proper tests were conducted is not true. The operation record of the complainant dated 18.08.1994 revealed is as under :
Right para medical incision taken. After exploration peritoneal Fluid came out. There was fluid around the Gall Bladder. Empyaema gall bladder patchy.
This gives us a clear picture that proper tests were conducted.
(v) What should be the clinical features of acute intestine obstruction? Chapter 49 of the book written by Lone and Bailey deals with the Clinical features of acute intestinal obstruction. There are four important symptoms and signs : pain, vomiting, distension and constipation. All these four symptoms of signs must be there.
These are illustrative.
Similarly, in Harrison Text Diseases of the Peritoneum and Mesentery it is stated that :
These usually consist of increasing abdominal pain, distention, nausea and vomiting, inability to pass feces or flatus, fever, hypotension, tachycardia, thirst and oliguria. On physical examination the patient appears acutely ill and febrile and has a variable degree of abdominal distention. The abdomen is usually acutely tender and tympanitic, often with rebound tenderness. The location of the pain and tenderness depends on the underlying cause and whether the inflammation is localized or generalized.
It is indicated that some of the clinical features includes abdominal pain with distention. It is not necessary that all the features should be present so as to conclude that there was abdominal obstruction. The text quoted above does not say so.
(vi) Whether surgery was necessary and safe? Complainant has stated that the surgery was not essential as the case was not serious.
There was no emergency and operation was risky which resulted in trauma to the child and permanent scar on the abdomen. The Canadian Journal : Of Surgery March 1984 Primary Peritonitis in Children by C W Nohr, MD, CM : D G Marshall, MD, FRCS (C) it is mentioned as under :
While in 1953 operation was thought to be harmful, in 1957 it was stated to be innocuous and in 1975 it was recommended. Peritoneal exudates in most cases contained Pneumococcus or Streptococcus organisms. The mortality was high; in a report of 23 patients published in 1926, it was 100%. The introduction of antibiotics and improved surgical care coincided with or resulted in a fall in mortality from 100% in 1926 to 26% in 1953 and 5% in 1971.
As the medical and surgical care has improved over the years and more and more new drugs have been introduced in the market, mortality rate further could have decreased during the last 35 years, hence, it can be concluded that it is a safe surgery.
(vii) Whether x-ray has revealed the full picture? In this case record of the hospital dated 18.08.1994 indicates that the evidence of obstruction in the picture of x-ray coincides with the medical text, wherein it is stated that the x-ray is extremely valuable but under certain circumstances may also be misleading. In non-strangulating complete small-bowel obstruction, x-rays are almost completely reliable. Distention of fluid and gas-filled loops of small intestine usually arranged in a step-ladder pattern with air-fluid levels and an absence or paucity of colonic gas are pathognomonic. The diagram on this page mentioned above matches with the aforesaid description, hence, it is very clear that x-ray picture is a conclusive proof indicating the urgency of surgery. It is further corroborated by the fact that the patient was guarding the abdomen i.e. she was not permitting the doctors even to touch it, because of acute pain suffered by the patient due to peritonitis. This fact has also been explained by the ld Counsel for the Hospital and the treating surgeon.
(viii) Whether the surgery was performed on 18.08.1994 or 19.08.1994? The ld Counsel for the complainant has stated that it was performed on 19.08.1994. The records are very clear that the surgery was performed on 18.08.1994 and it was further clarified by the ld Counsel for the hospital that the billing was done by the accounts department on the date subsequent to the surgery.
The ld Counsel raised an issue that only bile extract sent for test and there was no pus.
Is this correct?
The operation record of the complainant dated 18.08.194 indicates that right para medical incision taken. After exploration peritoneal fluid came out. There was fluid around the gall bladder. Empyaema gall bladder patchy. X-ray of the child also indicates Step ladder pattern of existence of fluid in the abdomen. Micro-biology report of culture of specimen sent for examination indicates Staph Albus Bacteria which indicated that there was bacteria in the material. Subsequently after the surgery and after administering antibiotics the microscopic culture indicates absence of bacteria.
Conclusion :
The hospital authorities have placed before us nearly 100 pages of document relating to the treatment viz., pre-operative, admission records, surgery, post operative records, medicines given, advice of doctors surgery and bills relating thereto. A perusal of the same makes it clear that neither the hospital nor the authorities concerned have made any attempt to hide anything from the patient. Hence to say that fraud has been committed by the OPs is a travesty of truth, hence the judgment quoted by the ld Counsel for the complainant in SP Chengal Varaya Naidu vs Jagannath (1994) 1 SCC 1 does not apply to this case.
Hospital records before us, affidavit of complainants father, affidavit filed on behalf of the hospital and their doctors concerned, their cross examination and medical texts which were placed before us leads to prima-facie conclusion that there has been no medical negligence in this case.
When the matter came up for hearing on 15.02.2005, this Commission noted that :
Admittedly, complainant has not filed affidavit of any expert. Affidavits which have been filed by way of evidence on behalf of OPs are of opposite party doctors.
Counsel of the parties agree that independent opinion from a panel of Pediatrician and Pediatric Surgeon may be obtained if the surgery of the child was needed/ not needed and if there was any medical negligence in treating the child. In view of this consensus and the facts and circumstances of case, matter is referred to the Director, AIIMS to constitute a panel of Pediatrician and Pediatric Surgeon to report if the surgery of child was required/ not required and if there was any negligence in treating the child. X-ray chest and abdomen of the child which are with the complainant, be taken on file. These x-rays alongwith one set of complete paper-book of this Commission will be sent by the sRegistrar alongwith letter of request to Director, AIIMS to constitute the panel. Report be submitted within six weeks. It is made clear that doctors giving the report will not be subjected to cross-examination by any of the parties.
AIIMS have responded by submitting medical report on 11.04.2005 which reads as follows :
Report of Medical Board to examine the case of Baby Preeti Goel.
After review of all records provided, the medical board opined that :-
(i) Clinical evaluation including x-rays and other investigations had reveals acute abdomen necessitating surgical exploration.
In acute abdomen, it is not always possible to pinpoint the pathology pre-operatively.
(ii) There was no negligence in management.
sd/- sd/- sd/-
(Prof N K Arora) (Prof V Bhatnagar) ( Dr Sanjay Arya ) Deptt., of Pediarics & Deptt.,of Pediatric Surgery & Deptt., Hosp. Admn Chairman, Medical Member, Medical Board and Member Board Secretary, Medical Board This report fortifies prima-facie conclusions that there was no medical negligence at all in this case, hence the complaint is liable to be dismissed. We are convinced that the doctors and the hospital authorities have made all out efforts to save the child which was in critical condition and there is no record placed before us to indicate that subsequent to the surgery, the child has suffered any re-lapse except there is a scar on the abdomen. Therefore the complaint is dismissed. The complainants shall pay Rs.10,000/- as costs to the hospital for filing this baseless complaint.
J [ K S Gupta ] Presiding Member .
[ P D Shenoy ] Member rsk