State Consumer Disputes Redressal Commission
Manzoor Hussain Nadeem vs Tirthakar Superspeciality Hospital, on 8 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. CC/12/1 (Arisen out of Order Dated in Case No. of District State Commission) 1. Manzoor Hussain Nadeem R/o.Gulberg, Azad Colony,Kaulkhed Rd.Akola ...........Appellant(s) Versus 1. Tirthakar Superspeciality Hospital, Near Chandak Mangal Karyalaya, Gaddam Plot, Akola 2. Dr.Prashant Mulawkar Tirthakar Superspeciality Hospital,Near Chandak Mangal Karyalaya, Gaddam Plot, Akola Akola M.S. 3. Dr.Rajendra Sonaone Patil Milk Dairy Rd.Jawahar Nagar,Akola Akola M.S. ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Adv. Mr. Kothari For the Respondent: Adv. Mr. Abhyankar for the O.P. Nos. 1 to 3 Dated : 08 Aug 2017 Final Order / Judgement (Delivered on 08/08/2017) PER SHRI B.A. SHAIKH, HON'BLE PRESIDING MEMBER.
1. This complaint is filed under section 17 of the Consumer Protection Act, 1986.
2. The case of the complainant as set out by him in this complaint in brief is as under:-
a. The deceased Huma was the daughter of the complainant. She was unmarried and aged about 27 years. The opposite party (for short O.P.) No. 1 is a Super Speciality Hospital situated at Akola. The O.P. No. 2 is a medical practitioner working in O.P. No. 1-Hospital. The O.P.No. 3 is an Anaesthetist and he is also attached to O.P.No. 1 Hospital.
b. The deceased Huma had only one right side kidney functioning. Her left side kidney was not functioning since her childhood. However, she was leading normal life. She was suffering from fever since one month prior to her death. She was being treated by Dr. S.M. Agrawal of Akola. Dr. Zuber Nadeem, the brother of deceased Huma was holding degree in Unani Medicines and he was working as assistant to Dr. S.M. Agrawal. The deceased Huma had undergone various tests including sonography as per advice of Dr. S.M. Agrawal. After considering all those test reports and sonography report Dr. S.M. Agrawal advised her to consult O.P.No. 2 who is Urologist working in his own hospital which is O.P. No. 1. Therefore, the deceased Huma was taken by her mother to O.P.No. 1 on 26/07/2010.
c. The O.P.No. 2 examined the deceased Huma on 26/07/2010 and after considering all the reports said that right side kidney of deceased Huma is affected due to problem of urinary bladder. He prescribed some medicines. Deceased Huma at that time was hospitalized in O.P.No. 1 hospital for two days.
d. However, after her discharge from hospital of O.P. No. 1 inspite of medication there was no improvement in the health condition of deceased Huma. Therefore, she again went to the O.P.No. 2 on 14/08/2010. At that time on pathological test it was found that her serum creatinine was slightly more than normal limit. Therefore, the O.P.No. 2 advised her to under go minor operation of right kidney called as stanting of the kidney.
e. The O.P.No. 2 informed the complainant and his wife that the said operation is not complicated and surgery is risk free and there will be no danger to the life of deceased Huma and that she will be discharged from hospital after operation in a day or two . Therefore, the complainant agreed to get his daughter Huma operated upon by O.P.No. 2. The deceased Huma was admitted in the hospital of O.P.No. 2 on 16/08/2010 for the operation of kidney. At that time the complainant , his son Mr. Zuber and his wife were present in the hospital. The O.P.No. 2 had said that he had to perform nine operations during that day. However, he also said that the operation of the deceased Huma will be the third in order of sequence and accordingly on 16/08/2010 at about 11.00 a.m. deceased Huma was taken in to the Operation Theatre. She was then brought out of the operation theatre at 11.30 a.m. and O.P.No. 2 said that the operation was performed satisfactorily and that stanting of kidney has been done. The O.P No. 3 had administered anaesthesia to deceased Huma before operation.
f. After the operation deceased Huma was taken to side room for keeping her on observation. No competent doctor kept watch on physical condition of deceased Huma after operation when she was kept in side room from 2.30 p.m. to 7.00 p.m. Nobody from the hospital came to record her blood pressure, pulse rate, respiration, B.P. and temperature after every hour. She was not placed on any monitoring machine after operation from 2.30 p.m. to 7.00 p.m. i.e. for 4 ½ hours. However, the complainant's son Mr. Zuber Nadeem examined her pulse and found that it was not normal. Mr. Zuber Nadeem tried to contact the O.P.Nos. 2&3 but they did not come to the side room to see the condition of deceased Huma. The O.P. No. 2 was busy in operations and did not come out from the operation room.
g. The health condition of the deceased Huma started deteriorating and by 7.00 p.m. her pulse rate was very alarming. The complainant's son Mr. Zuber Nadeem then called Dr. S.M. Agrawal who came at 7.45 p.m. to the O.P.No. 1 hospital and examined her . He found that her blood pressure was not stable. He also obtained ECG. He stated that her pulse rate is very high. Therefore, Dr. S.M. Agrawal called another expert doctor namely Dr. Pradeep Chandak in the O.P. No. 1- hospital. At that time also the O.P.Nos. 2&3 did not come out of the operation theatre. Dr. S.M. Agrawal talked to the O.P.No. 2 about deteriorating health condition of the deceased Huma.
h. Lastly, Dr. S.M. Agrawal advised the complainant that deceased Huma should be taken to Shyamdeep Hospital for C.T. Scan where the said facility is available. Therefore, as per advice of Dr. S.M. Agrawal, the deceased Huma was taken to Shamdeep Hospital and Critical Care Centre, Akola at 9.00 p.m. on 16/08/2010. The deceased Huma was admitted in such a precarious condition that despite of the treatment in the Shamdeep Hospital and Critical Care Centre, Akola, she died at about 1.30 a.m. during the same night in between 16/08/2010 and 17/08/2010. The complainant suffered great mental shock due to sudden death of his daughter.
i. Thereafter, few days complainant on perusal of medical case papers of the treatment found that at the time of operation, the blood pressure of deceased Huma was not proper and proper antibiotics were not given either during operation or after operation to prevent Septicaemia. Her pulse rate and blood pressure were not steady either before or during the operation. Septicaemia could develop only for want of proper dose of antibiotics or unhygienic condition in the hospital. Had the complainant was informed by the O.P.No. 2 about any danger to the life of deceased Huma, he would not have got her operated at Akola but would have taken her to any other hospital and doctor, even outside Akola city. The complainant then consulted various other doctors and has sought opinion from them.
j. Dr. Muhammad Naseeruddin, MD, is a Chief of Hospital Internal Medicine, Missouri, Delta Medical Centre, USA. The complainant sent all medical case papers to him for his opinion. He gave medical certificate of which details are given in the complaint. He concluded in that certificate that the deceased Huma was hurriedly operated upon and thereafter no medical attention was given to her which was expected from the O.P. k. The complainant then lodged report with the Police Station, Ramdaspeth against the O.P. No. 2. The police did not inform the complainant about action taken on his report.
l. The complainant then issued notice through his advocate on 29/12/2010 to the O.P. Nos. 1 to 3 calling upon them to pay compensation of Rs. 25,00,000/- to him for causing the death of deceased Huma due to their negligence. The O.P. No. 2 gave reply on 25/01/2011 and then again on 21/02/2011 through his advocate and thereby denied the averments made in the notice of the complainant. He raised false and concocted ground in the reply to avoid his liability for negligence.
m. Therefore, this complaint is filed by the complainant against the O.P. Nos. 1 to 3 alleging deficiency in service on their part and claiming compensation of Rs. 25,00,000/- from them.
3. The O.P. Nos. 1 to 3 appeared before this Commission and filed their common reply/written version. In brief they submitted as under:-
i. The deceased Huma though a young lady, she was obese and had a serious problem of chronic urinary tract infection. She was patient with only one functional kidney. She was being treated by a well known physician Dr. S.M. Agrawal over a period of time. She was not responding to the said treatment. She was also suffering from fever. Therefore, Dr. S.M. Agrawal referred her to O.P. No. 2 being one of the reputed Urologists in the city of Akola. The O.P. No. 2 carried out all the investigations and it was then revealed that the deceased Huma had severe kidney infection and therefore a probable case of Pyelonephritis. Her kidney function was not normal and acute infection coupled with higher blood creatinine level were the confirming factors. The parenchyma of the kidney was damaged. She was also suffering from Thyroid disorder and obesity. The O.P. No. 2 had opted for urine culture examination as it was the case of chronic kidney infection and it was confirmed in that investigation that it was a bacterial infection (E Coil) with very significant colony count of 1,00,000 colony forming units per ml.
ii. Though the deceased Huma was suffering from chronic infection, her W.B.C. count had not increased in any manner and by any degree. Thus her body defence mechanism was not responding otherwise there would have been substantial increase in W.B.C. count.
iii. Taking in to all these circumstances, the O.P. No. 2 prescribed her medicine namely Lovofloxacin but there was limited or insignificant response to the said antibiotic to the deceased Huma.
iv. The deceased Huma was then brought to O.P. No.1 hosptial on 03/08/2010 as there was no effective response to the medicines and as she was having severe infection and high fever. The deceased Huma was admitted in the O.P. No. 1- hospital on 04/08/2010. At that time her creatinine level was substantially high and infection had greatly increased. The O.P. No. 2 then opted for second level antibiotics namely Piperacillin with Tazobactum. Her fever was settled. Her creatinine level had marginally come down. She was discharged on 06/08/2010 by prescribing antibiotics to her. Thereafter, the deceased was brought to O.P. No. 1 hospital on 12/08/2010 when her fever was substantially high. Hence, the investigations were repeated. It was revealed that creatinine level had increased substantially. It was therefore confirmed that there was total disfunctioning of her only kidney. She had developed hydro-nephrosis in her said right kidney. She was also suffering from Nausea and the urine out put had gone down.
v. The investigation reports were also shown to Dr. S.M. Agrawal. It was a case of obstruction in the only kidney with chronic infection with no response to antibiotics. The body defence mechanism had also failed.
vi. Therefore, the O.P. No. 2 decided for stent implantation through bladder and urethra so as to facilitate urine output and to minimize the obstruction. The said advice was given by the O.P. No. 2 on 14/08/2010. The O.P.No. 2 had explained every details of the stent implantation and delicate condition of the deceased Huma to the complainant, his son and other relatives. It was also clarified that deceased Huma being a high risk patient, the procedure should not be treated as minor procedure. All possible complications were also explained to the complainant and the brother of the deceased Huma.
vii. It is denied that the O.P.No. 2 had said that it was not a complicated operation and that within a day or two the patient would be discharged from the hospital. It is also denied that the O.P. No. 2 had said that the surgery was a risk free and there was no danger to the life of deceased Huma. The complainant had read the special high risk consent letter and conditions and thereafter he had signed the letter of consent . The complainant had accepted for performing the procedure of stent implantation on 16/08/2010. The O.P.No. 2 already planned six operations on that date. The surgery of deceased Huma was in the category of semi-urgent surgery. The O.P.No. 2 had postponed two of the scheduled operations. The deceased Huma was taken to the operation theatre on 16/08/2010 at 9.15 a.m. The O.P. No. 3- Dr. Rajendra Sonone who is an anaesthetist, had evaluated the deceased Huma critically because she was suffering from (a) obstructive Uropathy with Azotaemia, (b)severe and chronic urinary tract infection, (c) with solitary kidney(only one functional kidney), (d)obesity and (e) hypothyroidism. The deceased Huma was ASA-Grade III patient. Dr Sonone had opted for short General Anaesthesia.
viii. The O.P.No. 3- Dr. Sonone administered anaesthesia when the deceased Huma was taken inside Operation Theatre. The operative procedure for right DJ Stenting was performed from 10.30 a.m. onwards and said procedure was uneventful. After the operation, the deceased Huma was kept inside the operation theatre for some time for recovery and after her good recovery she was shifted to Room No. 17 which was recovery room equipped with all emergency facilities. In that recovery room central oxygen supply facility, emergency monitoring and treatment facilities were available. The said recovery room was adjacent to the operation theatre. Therefore, both the O.P. Nos. 2&3 had easy and immediate access to the said room. The recovery room is also equipped with CCTV camera.
ix. The O.P.No. 2 after shifting the deceased Huma to the recovery room, had spoken to her brother in brief and then he went to the operation theatre for another operation. The O.P. No. 3- Dr. Sonone as well as assistant doctors were monitoring the deceased Huma. She was comfortable in all respects for about an hour. It is denied that the deceased Huma was not attended by the competent doctor after she was shifted to the recovery room. It is denied that after the operation since 2.30 p.m. to 7.00 p.m. nobody from the hospital came to recovery room to check the blood pressure, pulse rate, respiration & temperature of the deceased Huma after every hour. It is denied that the deceased Huma was not placed on any monitoring machine for 4 ½ hours.
x. All the vital details from 11.00 a.m. to 7.00 p.m. have been deliberately suppressed by the complainant. The O.P.No. 3 and his associate doctors were continuously monitoring the deceased Huma in recovery room.
xi. At about 11.45 p.m. in recovery room, the deceased Huma had developed rigors. Therefore, O.P. No. 3- Dr. Sonone attended her and covered her with blankets. She was getting nasal oxygen & necessary medication was immediately administered to her. The O. P. No. 3- Dr. Sonone had counselled her parents and explained to them post-operation problems/complications. The associate doctor had taken the temperature at 12.00 noon and all other parameters were constantly checked.
xii. The deceased Huma was fully conscious at 1.00 p.m. Eye opening on command was present . She was responding to verbal commands and her pulse rate was 120 per minute, SPO2-96%. At 1.00 p.m. the associate doctor had informed O.P.No. 2 that deceased was sleeping, though drowsy but arousable. The O.P.No. 2 had also evaluated the deceased Huma two times during that period. The O.P. No. 2 after completing the surgery had once again examined the deceased Huma at 2.30 p.m. and he had spoken with relatives of deceased Huma and counselled them and advised for propped up position of deceased Huma. The deceased Huma had fever of 101 degree Fahrenheit. Therefore, she was given Crocin tablet. Nasal oxygen was restarted. She had become stable at 2.30 p.m. xiii. At around 3.30 p.m. she had again developed rigors. She had mild fever of 100 degree Fahrenheit. Therefore, Injection Livofloxacin (IV) was given to her. Blood investigations were advised. The O.P.No. 3- Dr. Sonone was continuously monitoring her and associate doctors were assisting him. By 5.30 p.m. her rigors had gone down and she was sleeping. The O.P.No. 3- Dr. sonone examined her at 5.30 p.m. At around 6.00 p.m. the O.P.No. 2 had examined her. The blood investigation reports were also available at that time. Her serum creatinine level had remarkably increased while W.B.C. count had remained at 7000 establishing the fact that her body defence mechanism had failed. The O.P.No. 3- Dr. Sonone then called Dr. S.M. Agrawal. At around 6.30 p.m. O.P. No. 3- Dr. Sonone examined the deceased Huma. At that time she was drowsy but arousable. She was not in a position to communicate verbally. Hence, necessary medicines were immediately administered to her. At around 7.00 p.m. she was again examined and was found to be drowsy. However, her eye opening on command was present. The respiration was found to be noisy. Hence, immediate action was taken to improve her condition.
ivx. Her condition had become comparatively serious because of depressed respiration from 7.00 p.m. Dr. S.M. Agrawal had also arrived in the hospital at 7.00 p.m. Her condition was deteriorating rapidly because of depressed respiration (noisy respiration with bilateral crepitations in her chest). Dr. Sonone and Dr. S.M. Agrawal were attending her. In view of the complication of septic shock manifested in respiratory arrest, an unanimous decision was taken to shift her to a Critical Care Unit of Dr. Pradeep Chandak who was also called to monitor the shifting of deceased Huma to Critical Care Unit. Before shifting, deceased Huma had convulsions for which anticonvulsant injection was given to her. Rapidly she became serious and comatose.
xv. The deceased Huma was then shifted to Shamdeep Hospital in ambulance with all support. During shifting C.T. Scan was also done. She was in severe respiratory distress. Dr. Pradeep Chandak had intubated her on stretcher itself in the hospital of O.P.No. 1. Though C.T. Scan was normal, the deceased Huma required manual ventilation during shifting also. Hectic steps were taken after shifting the deceased Huma to the Critical Care Unit. The deceased Huma had poor GC, hypotension & bilateral crepts. She was therefore put on ventilator in Shamdeep Hospital. The O.P.No. 2 had spoken with the complainant and explained to him the complications and the condition of the deceased Huma. She had developed severe metabolic acidosis. At about 12.30 a.m. she went in cardiac arrest. External cardiac massage was given to her. Defibrillator shock was also given. All emergency medicines were also given to her. However, despite all efforts, she could not be survived. The death of Huma was unfortunate and her family members had suffered shock due to her death. Her death was due to complication of septic shock and it was confirmed by death certificate issued by Shamdeep Hospital.
xvi. The obstruction in the only kidney of the patient was a serious condition which could have resulted in many serious complications. Hence, in no manner it can be said that the action of the O.P. No. 2 in stent implantation was improper. No medical negligence can be alleged against the O.P.Nos. 2&3 on any count.
xvii. It is totally incorrect that Septicaemia could develop only for want of proper dose of antibiotics and unhygienic condition in the hospital. The hygienic condition of the hospital was excellent. The failure of body defence mechanism was never within the control of the O.P.Nos. 2&3.
xviii. The opinion of Dr. Muhammad Nasseeruddin filed on record by complainant is based upon incomplete and misleading information and therefore the same is totally irrational, illogical and baseless. The enquiry team of experts of Government Hospital, Akola on examination of the case papers, issued report dated 18/03/2011 and in view of the said report , the opinion of Dr. Naseeruddin cannot be accepted. The O.P.Nos. 2&3 have exercised the required skill , care and caution and all emergency measures were taken so as to save the deceased Huma. However, the complication of septic shock was fatal. That cannot be the ground to allege negligence on the part of O.Ps. All emergency measures were taken so as to save the deceased Huma. The complainant had snatched the paper from the attendant and he is using the same for making false and baseless allegations. Hence, O.P.Nos. 1,2&3 requested that complaint may be dismissed with cost.
4. The complainant in support of the complaint filed his own affidavits. He also filed copies of the following documents.
i. Anaesthesia record dated 16/08/2010 ii. Bed continuation sheet of O.P.No. 1 hospital iii. Death certificate issued by Shamdeep Hospital and Critical Care Centre, Akola. iv. Complaint made to Ramdaspeth Police Station, Akola by the complainant on 18/03/2011. v. Opinion of Dr. Muhammad Nasseruddin vi. Notice given by the complainant to the O.P. Nos. 1&2 dated 29/12/2010. vii. First reply dated 25/01/2011 given by the O.P. No. 2 to the notice of complainant . viii. Second reply dated 21/02/2011 given by the O.P.No. 2 to the notice of complainant.
5. On the other hand, the O.P. Nos. 1 to 3 filed album containing 27 photographs and compilation of four CDs. along with pursis dated 27/08/2013. They also filed evidence affidavit of the O.P.No. 2.
6. The O.P. Nos. 1 to 3 also filed copies of the following documents.
i. Letter given by the Police Station, Ramdaspeth, Akola to complainant dated 20/06/2012 ii. Letter given by the Inquiry Committee of Medical College, Akola dated 18/03/2011 to Police Inspector, Police Station, Ramdaspeth, Akola.
iii. Letter given by the Ramdaspeth Police Station to the Dean, Medical College, Nagpur dated 02/07/2011.
iv. Letter given by the Medical College, Nagpur to Police Station, Ramdaspeth, Akola dated 12/09/2011.
7. The O.Ps. also served interrogatories to the complainant with permission of this Commission. The complainant gave reply to those interrogatories on affidavit.
8. The O.Ps. also filed copies of following documents.
i. Consent letter dated 16/08/2010.
ii. Indoor hospital record of O.P.No. 2
iii. Case papers of Shamdeep Hospital and Critical Care Centre, Akola.
iv. Death certificate of deceased Huma.
9. We heard learned Advocate Mr. Kothari appearing for the complainant and learned Advocate Mr. Abhyankar appearing for the O.P. Nos. 1 to 3. The aforesaid advocates also filed their respective written notes of arguments which we have perused. We have also perused the entire record of the complaint.
10. Sum and substance of the argument of learned Advocate of the complainant is as under:-
a. The deceased Huma was prone to develop septicaemia in view of the urinary tract infection and her body defence mechanism was not responding to the treatment. The procedure of stanting carried on by the O.P.No. 2 on deceased Huma inspite of these conditions, which demonstrates that either she was fit to be operated upon subject to need to constantly watch her post operation or O.P. No. 2 proceeded to operate her ignoring the risk involved which demonstrates negligence on the part of the O.P. No. 2.
b. The complainant has not suppressed anything from this Commission. He has brought all facts on record which are necessary for proper decision of the complaint. The burden of proof is on the O.P. No. 2 to establish that his diagnosis was perfect and treatment given by him to deceased Huma was the best possible available treatment at the relevant time and he failed to discharge the same by adducing cogent evidence.
c. The O.P.No. 2 failed to attend the deceased Huma after operation till 7.00 p.m. and the evidence brought on record by the O.P. No. 2 does not prove that he attended the deceased Huma for a long period of 4 ½ hours after her operation. Moreover, the O.P No. 3 and other assistants of the O.P.No. 2 also did not attend deceased Huma. Copies of the case papers of O.P.No. 1 hospital filed on record by the complainant along with the complaint also prove that the deceased Huma was not attended by any doctor from 2.30 p.m. to 7.00 p.m. This proves post operative negligence on their part. Had the O.Ps. attended the deceased Huma during that crucial time, the life of the deceased Huma could have been saved after necessary investigation within time by necessary treatment, so as to avoid the death of deceased Huma due to Septicaemia.
d. Opinion of Dr. Muhammad Naseeruddin filed on record by the complainant fully supports his case about medical negligence on the part of the O.P. Nos. 1 to 3.
e. There is no record to show that the O.P. did pathological test of the blood of deceased Huma to find out whether there was any infection in the blood or not. Had it been done at an earliest opportunity when she was suffering from fever an appropriate treatment could have been started immediately for Septicaemia and probably she could have been saved.
f. The DVDs and photographs of the recovery room do not depict the deceased Huma under treatment of O.P.Nos. 2&3 and they are also not sufficient to hold that the O.P Nos. 1 to 3 had attended her from 2.30 p.m. to 7.00 p.m. g. The complainant was never informed that the deceased Huma was suffering from Septicaemia and he came to know for the first time from the death certificate issued by Shamdeep Hospital that his daughter died due to Septicaemia. The O.Ps. have not discharged the burden to prove that they diagnosed Septicaemia at an earliest and gave her treatment for the same immediately. The O.Ps were expected to be aware of the risk involved in such kind of surgery and were supposed to take abundant care and precaution not only during the operation but also after the operation till the deceased Huma cames out of comatose condition. They failed to do so, which also proves negligence on their part.
h. The report of alleged Expert Committee relied on by the O.Ps. does not prove that the O.Ps had taken proper post operative care and provided proper treatment to the deceased Huma after operation and that said report is not based on correct appreciation of the medical case papers and hence, it is of no value.
i. Moreover, the O.Ps. did not inform the complainant that the operation is risky and may cause death. The consent form produced on record does not show that the complainant or his son was given understanding that the operation may cause complication resulting into death of deceased Huma.
j. Therefore, the deficiency in service on the part of the O.Ps is proved by the complainant and hence complainant is entitled to compensation of Rs. 25,00,000/- as claimed by him in the complaint.
10. The learned advocate of the complainant relied on decisions in the following cases, in support of his submission.
i. V. Kishan Ra. Vs. Nikhil Super Speciality Hospital & another , III (2010) CPJ 1 (SC). It is observed in the said case that where negligence is evident, principle of Res Ipsa Loquitur operates and complainant does not have to prove anything as the thing speaks for itself.
ii. Indian Medical Association Vs. V.P. Shantha and others, (1995) 6 Supreme Court Cases 651. It is observed in the said case that service rendered by a medical practitioner or at hospital or Nursing Home deficiency has to be judged by applying the test of reasonable skill and care which is applicable in an action for damages for negligence.
iii. Okharan Investments (P)) Ltd. Vs. Indusind Bank Ltd. & others, III (2005) CPJ 9 (SC). It is observed in the said case that the negligence may be drawn from proved circumstances by applying rule of Res Ipsa Loquitur if cause of accident is unknown and no reasonable explanation as to cause is coming forth from defendant.
iv. Jaswinder Singh & another Vs. Neeraj Sud (Dr.) & another, IV (2011) CPJ 236 (NC). It is observed in the said case that where there is breach of duty, resulting into damage, then medical negligence is proved.
v. B. Shashikala (Dr.) Vs. Kattam Ramakishan, II (2011) CPJ 73, APSCDRC, Hyderabad In that case, the O.P. had discharged the patient at last minute when condition of patient had become worse and no scope for cure. The patient had septicaemia and later died. The District Forum allowed the complaint and granted compensation. In that case principle of Res Ipsa Loquitur was applied and it was held that in such a case complainant does not have to prove anything as the thing proves itself and that it is for the respondent to prove that he has taken care and done his duty to repel charges of negligence.
11. On the other hand, the learned advocate of the O.P. Nos. 1 to 3 made a submission in brief as under:-
i. Deceased Huma was though treated by Dr. S.M. Agrawal over the period of time, she did not respond to the said treatment and she had acute urinary tract infection and hence, he referred her to the O.P. No. 2 which is reputed Urologists in the city of Akola.
ii. Despite of providing proper treatment by the O.P. No. 2 to the deceased Huma, as stated in the reply of the O.P. Nos. 1 to 3, there was no effective response to the medicine and therefore she was admitted in the hospital on 14/08/2010. Her one kidney was totally dis-functioning and she had developed hydro nephrosis in one kidney(right kidney) and she was suffering from Nausea and her urine out put had gone down and necessary investigation was also carried out and thereafter the O.P. No. 2 had taken a decision of stent implantation through bladder and urethra, so as to facilitate urine output and to minimize the obstruction.
iii. The O.P. No. 2 had explained every details of the procedure of stent implantation and delicate condition of deceased Huma to the complainant, his son and other relatives of deceased Huma. All the possible complications were explained to them. The deceased Huma was a high risk patient. The complainant had accepted for performing the procedure of stent implantation on 16/08/2010, after he was given aforesaid full information. The operation was performed in the operation theatre. The procedure was uneventful and thereafter the deceased Huma was kept inside the operation theatre for some time for recovery and after her good recovery she was shifted to room No. 17,which is a recovery room equipped with all emergency facilities and which is adjacent to the operation theatre. The O.P. Nos. 2&3 and other assistant doctors of O.P.No. 1 attended the deceased Huma in recovery room from time to time. But the complainant has suppressed vital details from 11.00 a.m. to 7.00 p.m. iv. All necessary details of treatment and care, are given in the reply of the O.P. Nos. 1 to 3.
v. Though the death of deceased Huma was unfortunate but her death was occurred as a result of complication of septic shock. Members of enquiry committee comprising of the expert, on examining all the case papers, gave a report that there is no negligence on the part of the O.Ps.
vi. Photographs filed on record along with CDs show that the O.P. Nos. 2&3 and other doctor duly attended the deceased Huma and provided treatment to her.
vii. No negligence is proved by the complainant on the part of the O.Ps and therefore complaint deserves to be dismissed.
12. The learned advocate of the O.Ps. relied on the decision in the case of Kusum Sharma & others Vs. Batra Hospital, I (2010) CPJ 29 (SC). It is observed by the Hon'ble Supreme Court in the said case that doctors are not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skill and competence. In that case medical negligence was not proved.
13. At the out set it is seen that though it is alleged by the O.P.Nos. 1 to 3 that they had informed the complainant, his son and other relatives that the deceased Huma being a high risk patient, procedure should not be treated as minor procedure and that all complications were explained to the complainant and his son. However, perusal of the consent form relied by the O.Ps. as filed on record, does not show that any such information was given by the O.P. Nos. 2&3 to the complainant or his son. The said consent form simply shows that the complainant's son and deceased Huma were explained that the deceased Huma has only one right side functional kidney and the tube is to be inserted in that kidney and that there is no assurance that her right side kidney will restart functioning . The said consent form is signed by deceased Huma and son of the complainant. We find substance in the contention of the complainant that no such full information was given to him or his son or to his daughter Huma that she is high risk patient and that serious complication like Septicaemia can develop after operation. In our view it was necessary for the O.P.Nos. 2&3 to give such information in detail to them before proceeding with the implantation of stent . Thus not providing detail information about all future complications to complainant, his son & deceased Huma by O.P. Nos. 1& 2 as above, they have rendered deficient service to complainant and his daughter Huma.
14. The O.Ps. have relied on the report of inquiry committee comprising of four expert doctors as furnished to Police Inspector of Police Station , Ramdaspeth, Akola, dated 18/03/2011. The said report shows that after stenting, the bacteria of urine entered into body of deceased Huma & due to that reason urinary tract infection (UTI) flare up and Septicaemia was caused to the deceased Huma and that the O.P.No. 2 administered medicine Levoflox, Taxim, Piptaz to the deceased Huma and she was also given Dopamin and Pulmonary Odema. It is also stated in that report that she was also given Lasics , Deriphilin , Oxygen and Efcorline. According to the said report, the treatment provided is correct and proper and that the decision about stenting is also correct and that there was no negligence in the treatment provided to the deceased Huma. We find that the said report is of no use to prove that proper post operative care as required was taken by the O.P. Nos. 1 to 3.
15. The medical case papers provided by the O.P.Nos. 2 to the complainant are relied on by the complainant. Its copy is filed by the complainant along with complaint. The said case papers are not denied by the O.Ps. The O.Ps. simply said in reply that the complainant had snatched the medical case papers from the attendant and made a false claim with the help of said papers . However, they have not alleged that the case papers filed on record by the complainant are either brought up or tampered with. No affidavit of attendant is filed on record to prove that the complainant had snatched the medical case paper from him or her.
16. The medical case papers produced on record by the complainant are of the hospital of the O.P.Nos. 1 and 2. They show that from 2,30 p.m. to 7.00 p.m. nobody attended deceased Huma to record her pulse rate, blood pressure , temperature and urine output or other vital parameters. At the belated stage the O.Ps. filed the copies of medical case papers showing that they attended the deceased Huma from time to time and recorded her temperature therein. We find that the said medical case papers filed on record at belated stage of proceeding of the complaint , by the O.Ps. can be said to be after thought in as much as the medical case papers of the same O.P.No. 1 hospital produced by the complainant are earlier in point of time and they prove that the deceased Huma was not attended by any doctor from 2.30 p.m. to 7.00 p.m. on 16/08/2010 after she was brought to side recovery room from the operation theatre. Moreover, photographs of recovery room relied on by O.P.Nos. 1 to 3 are not clear to prove that O.P. Nos. 2 to 3 and their assistants attended deceased Huma at any time in that recovery room.
17. The complainant has also filed report of Dr. Muhammad Naseeruddin who is holding M.D. qualification and working as a Chief of Hospital of Internal Medicine, Missouri Delta Medical Centre, USA. He issued the said report after examination of papers submitted to him by the complainant. His report is reproduced below.
i. The indication, all the risks benefits and alternatives should have been discussed with the patient.
ii. In a patient with non visualization and suspected absence of one kidney, abnormal anatomy and vasculature should have been suspected and procedure should have been performed under direct visualization or CT guidance. Higher possibility of complications including bleeding and death should have been suspected and discussed with the patient and family.
iii. Post operatively patient should have been monitored with recording of frequent vital signs in a recovery room. It is a standard to observe a patient till alertness is regained.
iv. This patient remained comatose for hours. Nobody even identified it and understood the seriousness of it. No effort was done to identify the cause of this prolonged comatose state. No vital signs were monitored or even checked. No physical examination was done to see if she had a hypovolumic shock due to internal bleeding from a blind procedure. No blood count was done to check her haemoglobin status. No blood cultures were done to identify any septic shock. No empiric antibiotics were administered to treat any suspected septic shock. No electrolytes like potassium level were checked to see if there were any potential lethal derangements. No ECG was monitored or even done to see if she had any arrhythmia. In short practically no care was provided despite family's attempt to draw attention towards it.
18. In our view there is no reason to disbelieve the said opinion /report of medical expert. The O.Ps. have denied the correctness of the said report simply on the ground that all medical case papers were not furnished by the complainant to Dr. Muhammad Naseeruddin . We do not find substance in their contention that the said opinion of Dr. Muhammad Naseeruddin cannot be relied on in as much as it is specifically stated by the complainant that he had sent all the medical case papers to Dr. Muhammad Naseeruddin for his opinion. He is well qualified doctor and hence, we find that the said independent report / opinion of Dr. Muhammad Naseeruddin proves the medical negligence on the part of the O.P. Nos. 1 to 3.
19. The copy of guidelines on Urological Infection which is relied by the O.Ps. shows as under:-
Patients with urosepsis should be diagnosed at an early stage, especially in the case of the a complicated UTI. The systemic inflammatory response syndrome, known as SIRS (fever of hypothermia, hyperleucocytosis or leucopenia, tachycardia, tachypnoea) is recognized as the first event in a cascade to multi-organ failure. Mortality is considerably increased when severe sepsis or septic shock are present, though the prognosis of urosepsis is globally better than sepsis due to other infectious sites.
The treatment of urosepsis calls for the combination of adequate life supporting care, appropriate and prompt antibiotic therapy, adjunctive measures (e.g. sympathomimetic amines, hydrocortisone, blood glucose control, recombinant activated protein C and the optimal management of urinary tract disorders(laA).The drainage of any obstruction in the urinary tract is essential as first line treatment(lbA) Urologists are recommended to treat patient in collaboration with intensive care and infectious diseases specialists (laB)
20. The medical case papers filed by the O.P. on record do not show that the measures as recommended above in medical text book were duly taken by the O.Ps. The deceased was not treated in collaboration with intensive care infectious diseases specialists. She was not taken in to intensive care unit after operation. She was just kept in side recovery room. No explanation is given by the O.Ps as to why after operation she was not taken into intensive care unit, when they alleged that she was high risk patient & her body mechanism had totally failed. There is no evidence to show that the deceased Huma was diagnosed at an early stage of Septicaemia, particularly when she was the case of urinary tract infection. The deceased Huma had developed Septicaemia immediately after the operation. The O.Ps. have not discharged the burden to prove that they have taken all the requisite steps as stated by Dr. Muhammad Naseeruddin in his report discussed above. Therefore, we are inclined to hold that the death of deceased Huma was caused because of medical negligence on the part of the O.P. Nos. 1 to 3.
21. We also find that the doctrine of Res Ipsa Loquitur is applicable to the present case since, though it is alleged by the O.Ps. that the deceased Huma was high risk patient, they did not take any post operative care as stated by Dr. Muhammad Naseeruddin in his aforesaid report which resulted in to her death. The O.P.Nos. 1 to 3 have not proved as to how & when septicaemia had developed in the body of deceased Huma and what precautions were taken by them to avoid development of the same & why they could not control said septicaemia , which caused her death. The aforesaid decision relied on by the learned advocate of the O.Ps. is not applicable to the facts and circumstances of the present case in as much as the O.P. Nos. 1 to 3 have failed to perform their duties and exercise ordinary degree of of professional skill and competence as required while treating the deceased Huma.
22. Therefore, we hold that the complainant has proved by the cogent evidence that the O.Ps. have provided deficient service due to which death of deceased Huma was occurred. The complainant is entitled to compensation on account of death of his young daughter aged about 27 years as caused due to medical negligence on the part of the O.P. Nos. 1 to 3.
23. So far as quantum of compensation is concerned , we find considering the young age of deceased Huma , the mental shock caused to the complainant & his family members due to death of his daughter on account of aforesaid medical negligence of O.P.Nos. 1 to 3, compensation of Rs. 20,00,000/- would be just and proper. Hence, agreeing with the aforesaid submission of the learned advocate of the complainant and disagreeing with the aforesaid submission of the learned advocate of the O.Ps. we proceed to partly allow the complaint as under.
ORDER i. The complaint is partly allowed. ii. The O.P.Nos. 1 to 3 jointly and severally shall pay to the complainant compensation of Rs. 20,00,000/- with interest at the rate of 9% p.a. from the date of the complaint i.e. from 05/01/2012 till its realization by the complainant. iii. The O.P. Nos. 1 to 3 jointly and severally shall also pay litigation cost of Rs. 10,000/- to the complainant. iv. Copy of order be furnished to both the parties, free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER