National Consumer Disputes Redressal
Dr. E. Ramesh Babu vs Master A.N.V.D. Praveen on 15 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CIRCUIT BENCH AT HYDERABAD, A.P. FIRST APPEAL NO. 151 OF 2008 (Against the order dated 18.01.2008 in CC No.97/2003 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad) Dr. E Ramesh Babu Aishwarya Apartments Satyanarayanapuram Vijaywada-4 Appellant Versus Master A.N.V.D. Praveen Rep. by his LRs 1. Almuguri Sudha Lahiri W/o A. Jagannadha Rao R/o UC/LD, 367 B-Colony VTPS Ibrahimpatnam Vijaywada, A.P. 2. A. Jagannadha Rao S/o Late Almuguri Surayanarayana Murthy R/o UC/LD, 367 B-Colony VTPS Ibrahimpatnam Vijaywada, A.P. Respondents FIRST APPEAL NO. 152 OF 2008 (Against the order dated 18.01.2008 in CC No.97/2003 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad) Dr. Lingamaneni Subba Rao H.No. 30-5-2, Durga Agraharam Vijaywada-2 Appellant Versus Master A.N.V.D. Praveen Rep. by his LRs Complainants 2 & 3 1. Almuguri Sudha Lahiri W/o A. Jagannadha Rao R/o UC/LD, 367 B-Colony VTPS Ibrahimpatnam Vijaywada, A.P. 2. A. Jagannadha Rao S/o Late Almuguri Surayanarayana Murthy R/o UD/LD, 367 B-Colony VTPS Ibrahimpatnam Vijaywada, A.P. Respondents FIRST APPEAL NO. 357 OF 2008 (Against the order dated 18.01.2008 in CC No.97/2003 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad) 1. Alumuguri Sudha Lahari W/o A. Jagannadha Rao Aged about 51 yrs., Occ. Housewife 2. A. Jaganath Rao S/o A. Surya Narayana Murthy Aged about 55 yrs., Occ. Employee Both R/o UD/LD, 367, B-Colony Ibrahimpatnam, Vijaywada, A.P. Appellants Versus 1. Dr. E. Ramesh Babu Aishwarya Apts., Satyanarayanapuram Vijaywada, A.P. 2. Dr. Lingamaneni Subba Rao H.No. 30-5-2, Durga Agraharam Vijaywada-2, A.P. 3. Dr. S. Venkat Lakshmi Dy. Civil Surgeon KTPS Project Hospital Paloncha, Khamman District Respondents BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER FA 151/2008 For Appellant : Mr. P. Dharmesh, Advocate For Respondents : Mr. K. Rama S., Rao, Advocate FA 152/2008 For Appellant : Mr. P. Dharmesh, Advocate For Respondents : Mr. K. Rama S., Rao, Advocate FA 357/2008 For Appellants : Mr. K. Rama S., Rao, Advocate For Respondents : Mr. P. Dharmesh, Advocate Pronounced on 15th of February, 2013 ORDER
PER VINEETA RAI, MEMBER
1. Three separate appeals, namely, First Appeals No. 151 of 2008, 152 of 2008 and 357 of 2008, have been filed by Dr. E. Ramesh Babu (Opposite Party No.1), Dr. Lingamaneni Subba Rao (Opposite Party No.2) and Alumuguru Sudha Lahiri & Anr. (Complainants No. 2 & 3) respectively against the order dated 18.01.2008 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred to as the State Commission) passed in CD No. 97 of 2003, partly allowing the complaint of medical negligence filed by Master A.N.V.D. Praveen (hereinafter referred to as the Patient) through his parents (hereinafter referred to as the Complainants).
2. Since the facts and the parties in the three first appeals are common/similar arising out of the same consumer dispute, it is proposed to dispose of these appeals by one common order by taking the facts from First Appeal No. 151 of 2008 and the parties will be referred to in the manner in which they were referred to in the complaint.
FACTS AS ALLEGED IN THE COMPLAINT :
3. Patient, who was a minor and was represented by his parents, had filed a complaint before the State Commission on grounds of medical negligence against Dr. E. Ramesh Babu and others (hereinafter referred to as Opposite Party No.1 and others). It was contended that the Patient, who was a 14 year old student, had complaint of stomach pain, which after investigation was diagnosed as Appendicitis. He underwent an Appendectomy on 05.01.2003 at VTPS Hospital, Vijaywada by a team of three doctors, namely, Dr. E. Ramesh Babu, Dr. Lingamaneni Subba Rao and Dr. S. Venkata Lakshmi (Opposite Parties No. 1, 2 and 3 respectively). In the operation theater during the course of the surgery, due to defective and excessive administration of anaesthesia, the Patient suffered Cerebral Atrophy and Periventricular stage Hyper-intensity suggestive of Hypoxic changes, within an hour of the surgery. He was thereafter shifted to M.S. Safe Hospital, Vijaywada on the advice of Opposite Parties in an unconscious state and then to Care Hospital, Nampalli, Hyderabad on 06.02.2003, where brain scan and other necessary tests confirmed the diagnosis of Hypoxia due to excessive administration of anaesthesia during the Appendectomy. At the time of filing the complaint, the Patient was in a vegetative comatose state and had been reduced to skin and bones. Being aggrieved because of the gross medical negligence and deficiency in service on the part of Opposite Parties, Patients parents i.e. Complainants No. 2 and 3 filed a complaint before the Police, who, however, closed the same without any investigation. Legal notices were also sent to the Opposite Parties, to which there was no satisfactory response. Patient represented by his parents therefore filed a complaint before the State Commission against the Opposite Parties on grounds of medical negligence and deficiency in service and requested that Opposite Parties be jointly and severally directed to pay a sum of Rs.25 Lakhs as compensation for the extreme mental agony that they have suffered beyond description for two years as also the medical expenses of Rs.15 Lakhs spent on purchase of medicines and for treatment from 05.01.2003 to 14.12.2004 when the Patient expired.
4. Opposite Parties on being served filed a rejoinder denying these allegations. It was stated that the operation was conducted satisfactorily by Opposite Parties No. 1, 2 and 3, who were an expert team of well-qualified senior doctors and Hypoxia that occurred was not caused because of administration of anaesthesia during the surgery but due to some other problem. It was stated that when it was noticed that the Patient was not responding properly in the post-operative room, he was immediately attended to and resuscitative measures started, including intubation, and Patient recovered.
It was further stated that the Patient was referred to a better hospital where intensive care unit with ventilator facilities were available and this was not to wash their hands of the case.
However, it was the Complainants who had decided to shift the Patient from there to yet another hospital for which Opposite Parties cannot be held responsible. It was further stated that the Opposite Parties cannot be held responsible for the expenditure incurred by the Complainants in the treatment of the Patient since they were not party to this. It was specifically denied that the Hypoxia occurred because of a deficiency in administering the spinal anaesthesia. On the other hand, it was stated that the abdomen of the Patient was opened by Mcburneys incision. Appendix was in Pre-iliac position and acutely inflamed, edematous with adhesions.
Appendectomy was done by clamping severing the Meso-Appendix and other vessels. It was ligated at the base and pusse-string suture applied with 2/0 atraumatic, chromic catgut. Betadine was applied to the stump and burled into caecum with covering of omentum. There was no free fluid in the abdomen. After homeostasis, wound was closed in layers and skin with thread.
The operation had been completed uneventfully and successfully. The treatment rendered by the Opposite Parties was as per the international standards.
In fact the action of spinal anaesthesia exists for 40 to 45 minutes and by the time the surgery was completed, the Patient had fully recovered from the anaesthetic effect and was shifted to post-operative room. In view of this, it was submitted that the complaint being unjustified may be dismissed.
5. The State Commission after hearing the parties and on the basis of evidence produced before it found Opposite Parties No. 1, 2 and 3 i.e. Dr. E. Ramesh Babu, Dr. Lingamaneni Subba Rao and Dr. S. Venkata Lakshmi respectively, guilty of medical negligence but concluded that there was no case against Opposite Parties No. 4 and 5, namely, Chief Medical Officer, Vidyut Soudha Dispensary and Andhra Pradesh Power Generation Corporation Ltd. respectively. The relevant part of the order of the State Commission is reproduced:
In the deposition of opposite party No.1 i.e., the anesthetist, he submits that during the process of operation the patient was continuously monitored and that they do not have BNS monitor in the hospital and that after the operation the patient recovered from anesthesia completely at 9.15 a.m. He denies that the defective administration of oxygen has caused the patient to go into coma and he subsequently died. As against this, the discharge summary of Safe Hospital shows:
the patient was shifted to Safe Hospital on 5.1.2003 at 11.30 a.m. in our clinical assessment. He was in a respiratory arrest-- Ventilated manually with Ambubag and his pupils are in mid-dilation, not reacting to light. He is also suffering with decerebrated rigidity and hypotension.
This clearly establishes that the patient when he was being discharged after treatment by opposite party nos. 1 to 3 was in a state of respiratory arrest and unconscious with convulsions. Safe Hospital discharge summary also states that convulsions were controlled with anti-convulsants. Care Hospital Discharge Summary also states that the patient aged 14 years is a case of anoxic ischemic encephalopathy (Post Appendectomy) and that he did not have any history of seizures. The perusal of the record does not show any recording or evidence to substantiate the contention of the opposite parties that they have taken all precautionary care in treating the patient. The case sheet is bald without any specific and detailed records of the treatment given to the patients.
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Keeping in view the material on record, the arguments and the depositions and the aforementioned judgments we are of the considered opinion that there is negligence on behalf of opposite parties No.1 to 3 in treating the patient subsequently result in childs death. Since the patient is a young student of 14 years and had approached opposite parties No.1 to 3 for a simple appendicitis operation and ultimately had to suffer cerebral hypoxia with consequently led to his death we hold that it is an act of medical negligence on behalf of opposite parties No.1 to 3. We have perused all the bills filed by the complainants and also the legal notices in which the complainants have sought compensation from opposite parties No. 1 to 3. We are of the view that opposite parties No.1 to 3 are negligent in treating the patient for which act they are liable to pay an amount of Rs.8 lakhs with interest @ 9% per annum from the date of filing of the complaint till the date of realization together with cost of Rs.5,000/-. This amount is inclusive of the medical expenses and compensation. The case against opposite parties No.4 and 5 is dismissed without costs.
The State Commission, therefore, directed Opposite Parties No. 1, 2 and 3 to jointly and severally pay an amount of Rs.8 Lakhs to Complainants No. 2 and 3 being the parents of the Patient (who had expired during the pendency of the complaint) with interest @ 9% per annum from the date of complaint till the date of realization and Rs.5000/- as costs.
6. Being aggrieved by the order of the State Commission, Opposite Parties No. 1 and 2 have filed First Appeals No.151/2008 & 152/2008.
Opposite Party No.3 Dr. S. Venkata Lakshmi has since expired. Complainants being aggrieved by the lesser compensation awarded by the State Commission have also filed First Appeal No.357/2008 for enhancement of the same.
7. Learned counsel for the Complainants as well as Opposite Parties were present and made oral submissions.
8. Learned counsel for the Opposite Parties (appellants in F.A. 151/2008 and F.A.152/2008 and Respondent in F.A. No.357/2008) stated that the State Commission erred in concluding that they were guilty of medical negligence whereas from the case history as well as facts on record it is clear that the Opposite Parties being well qualified Doctors had conducted the surgery successfully as per standard case procedure. It was specifically contended that it was only in the post-operative room that a problem arose at 9.30 a.m. which was detected as Hypoxia and the Patient after being given treatment was shifted to another hospital with better intensive care and ventilator facilities. Complainants instead of continuing treatment at that hospital shifted the Patient to another hospital against the medical advice, which undoubtedly adversely affected the Patient. It was further contended that the State Commission erred in not taking into account the statement of Dr. V. Sreekanth, who was a Consultant Neurologist working in Care Hospital and who had examined the Patient and had stated in his deposition before the State Commission that there did not appear to be any medical negligence in conducting the surgery. Further, case sheet filed by the Opposite Parties also did not indicate that there was any medical negligence or deficiency in service in the treatment of the Patient, which was as per accepted and standard medical procedures.
It was specifically denied that any interpolation was made in the case history sheet of the Patient as concluded by the State Commission. The State Commission had not correctly interpreted the case history sheet by observing that the doctor had recorded at 9.55 a.m. that the Patients condition was stable whereas in the same sheet the Anaesthetist had recorded at 9.30 a.m. that the Patient was in a Hypoxic state. In fact, the timing recorded by the doctor was 9.15 a.m. and not 9.55 a.m. and thus there was no discrepancy or manipulation in the records. As per the same case sheet, it is clearly indicated that the surgery was conducted under spinal anaesthesia after ensuring that the Patient was fit to undergo the surgery and thus there was no error, deficiency or carelessness at any stage of the treatment, surgery as also administration of the anaesthesia. Unfortunately, Hypoxia occurred for reasons not related to the surgery for which Opposite Parties cannot be held responsible especially when as soon as this situation was diagnosed the Patient was attended to promptly including ensuring his transfer to a hospital with better intensive care facilities. Counsel for the Opposite Parties brought to our notice a judgment of Honble Supreme Court of India in Kusum Sharma & Ors. V. Batra Hospital and Medical Research Centre & Ors. [AIR 2010 SC 1052], wherein the Honble Apex Court has clearly ruled that As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. In the instant case, the facts and the medical case history documents clearly confirm that the doctors who are well qualified had performed their duties and exercised the required professional skill and competence in treating the Patient and are, therefore, not guilty of medical negligence.
9. Learned counsel for the Complainants (Respondents in F.A. No. 151/2008 and 152/2008 and appellants in F.A. No.357/2008) stated that the State Commission had rightly concluded that there was medical negligence on the part of the Opposite Parties because of which the Patient suffered Hypoxia and was reduced to a vegetative state and thereafter expired. Opposite Parties contention that this condition could have been caused because of some other reason is not sustainable in view of the fact that the Opposite Parties themselves have admitted that pre-operative examination of the Patient confirmed that he was in normal health and did not suffer from any illness apart from Appendectomy for which surgery was done. Apart from this it is an admitted fact that the surgery had concluded at 9.00 a.m. and within half an hour the Patient suffered from Hypoxia which occurs, as observed by the State Commission in its detailed order, when there is a sudden change in the oxygen supplied to the brain. Since the administration of anaesthesia during the surgery was the only intervention that could have led to this condition, there is an obvious and clear nexus between the administration of anaesthesia for the surgery and the Patient suffering from Hypoxic condition minutes thereafter. Counsel for the Complainants cited a judgment of this Commission in Rajiv Sharma & Ors. V. Helvetia Klinic Pvt. Ltd. & Ors. [2010 (4) ALD (Cons.) 1 (NC)] in support of their case. Opposite Parties now cannot take the plea that the Hypoxia was due to some other pre-existing medical condition. The blame for the deficient administration of anaesthesia also could not be apportioned on the anaesthetist alone since the surgery was conducted by a team of doctors which included all three Opposite Parties. The State rightly appreciating all these facts had concluded that the Patient had died because of medical negligence on the part of all 3 Opposite Parties-Doctors. However, it erred in awarding compensation of only Rs.8 Lakhs whereas as per the medical bills and other documents on record it is apparent that the Complainants had spent Rs.15 Lakhs on the medical treatment alone, which included the cost of medicines, stay in various hospitals and related expenditure. It was, therefore, prayed that the compensation of Rs.25 Lakhs as requested for may be granted.
11. We have carefully considered the submissions made by learned Counsels from both parties as also the evidence on record. Patients admission in the Opposite Parties hospital and their conducting a surgery for Appendectomy with the use of spinal anaesthesia are admitted facts. It is also not in dispute that prior to the surgery, various tests conducted on the Patient indicated that he was in normal health and did not suffer from any congenital or chronic ailment. Further, as per the Opposite Parties own case history, filed in evidence within half an hour of the surgery the Patient developed Hypoxia and it is also an admitted fact that although efforts were made to treat this condition, the Opposite Parties obviously could not successfully to do so and, therefore, decided to refer the Patient to another hospital with better facilities. Therefore, Opposite Parties contention that they were able to stabilize the Patient is not factually correct. Further, as per the record from other two hospitals, the Patient was diagnosed with Hypoxia from which he subsequently passed away. As per medical literature on the subject, which has also been cited by the State Commission in its order, the main reason for Cerebral Hypoxia, which occurred in the Patient, is because of a sudden change in brain oxygen level. In the instant case, this occurred within less than an hour of the administration of spinal anaesthesia and the nexus between the administration of anaesthesia and the Patients getting into Hypoxic condition is clearly established.
Opposite Parties contention that Hypoxia occurred perhaps because of some pre-existing medical condition in the Patient is not acceptable since the Opposite Parties own medical records clearly indicate that the Patient was in normal health prior to the surgery.
Opposite Parties have not been able to give any plausible explanation for the Hypoxia. The deposition of Dr. V. Sreekanth is of little use to the Opposite Parties since nowhere has he unequivocally stated that there was no medical negligence in this case. He has only stated that he cannot say that the negligence in conducting the surgery for Appendicitis resulted in the Patients condition because inter alia he did not have deep knowledge about anaesthesia to comment on this aspect of the case. The judgment of the Honble Supreme Court in Kusum Sharma (supra) cited by the Opposite Parties in support of their case is also not of much use to them because clearly applying the principles enunciated in this case the Opposite Parties did not take due and reasonable care in the administration of anaesthesia during a relatively simple surgical procedure.
Had reasonable care and precaution been taken, there would not have been any deficiency in the administration of anaesthesia, which is an integral part of surgical procedures, and the Patient would not have suffered from Hypoxia and died prematurely. This clearly amounted to medical negligence and deficiency in service and we agree with the well-reasoned order of the State Commission holding the Opposite Parties guilty of medical negligence and uphold the same.
12. The Complainants in their first appeal have requested for higher compensation. We have gone through the documents pertaining to the Patients medical treatment and related expenditure incurred by the Complainants and we note that during the period from 05.01.2003 to 14.12.2004 i.e. about 2 years the Patient suffered from Hypoxia and severe medical problems related to this condition and had, therefore, to be admitted on a number of occasions to various hospitals. He had, for example, to be admitted to the critical care unit at Vijetha Hospital and Nagarjuna Hospital apart from M.S. Safe Hospital and Care Hospital. There are also a number of cash memos in support of the various diagnostic tests and medicines that were routinely required for the Patient. Apart from this, there is no doubt that the Complainants as parents of the Patient suffered untold mental agony because of their sons pitiable and helpless condition and subsequent death which of course can never be compensated by any monetary award. Therefore, taking into account the entire circumstances of the case, which includes mental agony of complainants as also the expenditure incurred on the Patient, we are of the view that there is adequate justification for enhancing the compensation from Rs.8 Lakhs awarded by the State Commission to Rs.15 Lakhs. We, therefore, partly modify the order of the State Commission in this respect.
13. To sum up, we uphold the order of the State Commission pertaining to medical negligence by all 3 Opposite Parties-Doctors in the treatment of the Patient and note that Opposite Party No.3 has since expired. However, we partly modify the order of the State Commission pertaining to the award of compensation to the Complainants and enhance the same from Rs.8 Lakhs to Rs.15 Lakhs with interest @ 9% per annum from the date of complaint till the date of realization alongwith Rs.5000/- as cost. Opposite Parties No. 1 and 2 are directed to jointly and severally pay this amount to Complainants within a period of 8 weeks from the date of issue of this order. First Appeals No. 151 of 2008 and 152 of 2008 filed by Opposite Parties No. 1 and 2 accordingly stand dismissed and First Appeal No.357 of 2008 filed by Complainants No. 2 and 3 stands partly allowed in the manner indicated above.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Mukesh