State Consumer Disputes Redressal Commission
Peddi Narayana Swami vs Kamineni Hospitals And Another on 8 March, 2011
BEFORE THE A
BEFORE THE A.P STATE
CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
C.C.No.55 OF 2008
Between:
Peddi Narayana Swami
S/o Janakiramayya, aged 58 yrs,
R/o H.No.2-126/2/1, Engineers Enclave
Gangaram, Chandanagar, Hyderabad-50
Complainant
A N D
The
Managing Director
Kamineni Hospitals
L.B.Nagar, Hyderabad-68
Dr.J.V.S.Vdyasagar
Senior Orthopaedic Consultant
Aware Global Hospital
L.B Nagar, Hyderabad
(impleaded as per orders in
I.A.No.1301/09 dt.10.10.2009)
Opposite Parties
Counsel for the Complainant Sri
V.Vinod Kumar
Counsel for the Opposite party Sri
Srinivasa Rao Pachwa
QUORUM: HONBLE SRI JUSTICE
D.APPA RAO, PRESIDENT
SRI SYED ABDULLAH, HONBLE MEMBER.
AND SRI R.LAKSHMINARASIMHA RAO HONBLE MEMBER TUESDAY THE EIGTH DAY OF MARCH TWO THOUSAND ELEVAN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The complaint is filed seeking direction to the opposite parties no.1 and 2 to pay a sum of `25 lakh and `25,000/- towards costs.
2. The averments of the complaint are that the complainants son Shivram Prasad who was aged about 27 years was admitted to the opposite party no.1 hospital at 9.a.m on 6.12.2006 for treatment of an injury to his left leg and three days thereafter the doctors of the opposite party no.1 hospital informed the complainant that they had performed operation and his son was recovering well. The complainants son reported to the complainant that doctors and nurses did not attend on him properly and he was subjected to pain and suffering.
About 5 p.m. on 12.12.2006 the doctors of the opposite party no.1 hospital informed the complainant that his son died at 4 p.m. on that day and they refused to furnish copy of the case sheet to the complainant. The complainants son was unmarried and having conducted enquiry, the complainant came to know that the treatment rendered by the doctors at the opposite party no.1 hospital to his son was negligent and short of proper care and skill as also some wrong medicine was administered to the patient.
3. The complainant has got issued notice dated 21.6.2008 through his advocate with a request to the opposite party no.1 hospital to supply copy of case sheet relating to the treatment of his son.
The complainants son was doing business in soaps and cosmetics as distributor of Godrej company and used to earn `25,000/- to `30,000/- per month. The complainant has got issued another notice on 2.8.2008 alleging that his son died due to negligent treatment rendered at the opposite party no.1 hospital and claimed an amount of `25 lakh towards compensation. The opposite party no.1 had got issued reply on 18 .8.2008 refuting the claim for payment of compensation and stated about the treatment given to his son at the opposite party no.1 hospital as also of the complications developed during the post operative stage.
4. The opposite party no.1 invented the theory of complications to cover up the deficiency in service on the part of the opposite parties who treated the son of the complainant. Embolism if any, might have set in during the course of operation of fixing the fracture due to the negligent performing of operation by the surgeon concerned. The acute injury to the lung of the patient was caused due to fat embolism developed during the period of operation.
The opposite party no.1 has not stated that Dr.PV Vidyasagar a Senior Orthopaedic Surgeon and Head of the Department of Orthopaedics had performed the operation on the son of the complainant. The opposite party no. 1 had not disclosed the names of the doctors concerned with pulmonolgy, ophthalmology and nephrology and whether required treatment was given to the patient. No physician nor a cardiologist was consulted though the patient because febrile and developed bradi Cardia during the post operative state.
5. Written Version was filed on behalf of the opposite party no.1 contending that the complainants son was treated with due diligence and utmost care and that the complainants son was treated and operated by Dr.JVS Vidyasagar who is an independent consultant and used to work on case to case basis at the opposite party no.1 hospital. The opposite party no.2 alone is responsible to answer the allegations made in the complaint in respect of surgery and treatment. The complainants son was admitted in the opposite party no.1 hospital at 10.55 a.m. on 6.12.2006 with history of fall while running at Visakhapatnam on 4.12.2006 and sustained fracture of shaft left femur. Initially he was treated at a local hospital and then brought to the opposite party no1. hospital for further management. The opposite party no.2 and the other doctors examined the patient and found ABG with hypoxia and low air saturation. The condition of the patient i.e., low oxygen saturation and existence of fat embolism as also onset of ARDS was explained to his attendants and they were explained the need for fixing the fracture and the need for post operative ventilatory support besides the possible risk and complications assessing out of treatment.
6. It was submitted that after obtaining the consent of the patient operation was performed on him on 7.12.2006 by Dr.J.V.S.Vidyasagar and during post operative stage, the patient oxygen level began to decrease and despite the efforts of the doctors there was no improvement in his condition. The patient was provided with mechanical ventilatory support after obtaining the consent. Dr.JVS Vidyasagar discussed in presence of the patients attendants, the treatment and prognosis was discussed with Dr.Venkateswar Swamy who was known to the patient and his relatives. Pulmonology, ophthalmology opinions were obtained. The patient has required increasing support of mechanical ventilator and he had developed sepsis. On 10.12.2006 higher antibiotics (merophenam) was prescribed as the patient was febrile and total count was down. On 11.12.2006 the complainants family members were explained about the critical condition of the patient as increase in the total count and the chest X-ray that showed suggestive of worsening of his acute lung injury and worsening sepsis.
On 12.12.2006, the patients urine output decreased and serum creatine levels raised. The nephrologists prescribed alteration in drug doses and advised for fluid management. Liver Function Test suggested worsening of sepsis and at 3.30 pm the patient had bradi cardia, CPCR was started as his BP was not recordable and he died at 4.15 p.m. on 12.12.2006.
7. Dr.Venkateswara Swamy, the complainant and other attendants were regularly briefed about the condition of the patient on every day and the complainant and Dr.Venkateswara Swamy discussed the condition of the patient with Dr.J.V.Vidyasagar. The LIC authorities of Koti branch on behalf of the complainant obtained the case sheet in the month of March 2007 and the complainant requested to send copy of case sheet directly to LIC Koti branch office for processing his claim and by submitting a notarised affidavit requested the opposite party no.1 hospital to change his name from Peddi narayana Swamy to Peddi Narayana.
8. The case sheet was sent on 28.9.2007 to LIC Koti Branch office on request of the complainant and the complainant got issued notice through his advocate in the month of June 2008 with a demand for supply of copy of case sheet. The complainant had also made a phone call in this regard and informed the RMO of the opposite party no.1 hospital that he would personally visit the hospital to receive the copy of case sheet and thereafter he had not turned up. The opposite party had got issued reply to the notice dated 2.8.2008 issued on behalf of the complainant and in its reply the opposite party no.1 had illustrated all the facts to the complainant. After being explained of the complications, the complainant had given special informed risk consent before surgery in the presence of Dr.Venkateswara Swamy. Dr.J.V.S.Vidyasagar performed the operation on the patient and the patient was seen by the pulmonologist Dr.Ravinder Reddy, the Opthalmologist Dr.Ramesh Reddy and the Nephrologist, Dr.Kamal Kiran. There was no negligence of any type on the part of the opposite parties in rendering treatment to the son of the complainant.
9. The opposite party no.2 has resisted the claim contending that the complainant is not a consumer in terms of the provisions of the C.P.Act. His son was admitted in the opposite party no.1 hospital on 6.12.2006 for a fall that occurred on 4.12.2006 and due to the fall he sustained fractured shaft left femur. He was treated initially at a local hospital and then was shifted to the opposite party no.1 hospital for further management. On examination, it was found that the patient was suffering from hypoxia and needed ventilator support and fixation of fracture to avoid further movement at # site. The low oxygen saturation condition, existence of fat embolism and onset of ARDS, need for fixing fracture of femur and possible need for psot operative ventolaroy support and the possible risks and complications assessing out of treatment were explained to the attendants of the patient and the complainant had given consent for the treatment.
10. The patient was operated on 7.12.2006 to fix the fracture of left femur under the supervision by the opposite party no.2 and attended by Dr.Jaya Prasad and Dr.Jayant Head of the Department of Orthopaedics and thereafter he was handed over to the respiratory intensive care unit of anaesthesia department. During post operative stage in recovery POW, the patient oxygens level started showing decrease and inspite of efforts of the doctors there was no improvement. The patient was provided with mechanical ventilator support after obtaining consent from the patients relations including Dr.Venkateswara Swamy who were counselled about condition of the patient from time to time. The opposite party no.2 discussed the condition of the patient with Dr.Venkateswara Swamy in the presence of patients attendants.
Pulmonology and Opthalmalogy opinions were obtained.
11. The patient required increased support of mechanical ventilator and he had developed sepsis. On 10.12.2006 the patient was febrile, the total count was done which was raised, higher antibiotics was prescribed on 11.12.2006 the complainants family members were explained about the patients critical condition as increasing the total count and the chest x-ray showing condition suggestive of worsening of his acute lung injury and worsening sepsis. On 12.12.2006 the patients urine output fell down and serum creatine level raised whereby the nephrologists altered the drug dose and advised for fluid management. The liver function test suggested worsening of sepses. At 3.30 pm the patient had bradi cardia. His blood pressure was not recordable, CP CR was started and the patient did not respond. He was declared dead at 4.15 p.m. on 12.12.2006.
12. Dr.Venkateswara Swamy, the complainant and other attendants were regularly briefed about condition of the patient on every day.
The complainant and Dr.Venkateswara Swamy discussed the condition of the patient with the opposite party no.2. The complainant is silent about presence of Dr.Venkateswara Swamy and signing of special informed risk consent. There was no deficiency in service on the part of the opposite parties and thus prayed for dismissal of the complaint.
13. The complainant has filed his affidavit and Exs.A1 to A6. The opposite party no.1 Dr.C.R.Patnaik, the Chief Executive Officer of the opposite party no.1 hospital and the opposite party no.2 filed their affidavits and got marked Exs.B1 to B10.
14. The opposite parties no.1 and 2 filed their written arguments.
The points for consideration are:
1) Whether the opposite parties have rendered negligent treatment to the complainants son?
2) To what relief?
15. POINT NO.1 The complainants son due to the fall sustained fracture, shaft left femur. He was treated at a local hospital at Visakhapatnam and was then brought to the opposite party no.1 for further management. The complainants son was admitted on 6.12.2006 at 10.55 a.m. to the opposite party no.1 hospital. The case history record of the opposite party no.1 hospital shows that CBP, CUF, Serum Creatine, HIV, etc., pathological tests were conducted and the past history of the patient was recorded as that he was initially treated at PVT Hospital where radiography was taken and he was diagnosed with fracture shaft femur. The opposite parties contended that the complainant had given consent and that he was explained the complications of anaesmesia like bradi cardia, tachy cardia and cardiac failure as also the complications of surgery such as infection, non-union- malunion, implant failure, fat embolism, ARDS, PTE including the death of the patient. The consent sheet discloses that he was explained by the attending doctor that the nature of illness his son suffered was fracture shaft femur (left) and surgery was required for treatment of the problem.
However, the complainant disputes the fact of his being explained of the course of treatment and the complications thereof.
16. On examination of the patient, the doctors at opposite party no.1 hospital diagnosed him with hypoxia and low room air saturation. A surgery was performed on 7.12.2006 by the opposite party no.2 and after the surgery the patients oxygen level began to decrease. He was provided with mechanical ventilator support for which consent of the attendants of the patient, Shiv Ram Prasad and Hanmantha Rao was obtained.
17. Blood Test, Endo track C&S, CPB, ESR was advised as also EC was advised to be done twice daily morning and evening. The patients condition became critical as the day on 11.12.2006 progressed as there was increasing the total count and chest X-ray of the patient showed the worsening of lung injury as also worsening of sepsis and the next day i.e., on 12.12.2006 the patients urine output had decreased whereby his serum creatine levels considerably increased for which the nephrologists suggested the alteration in the drug dose.
18. When the patient was suffering from hypoxia immediately after the surgery, the opposite party no.1 ought to have summoned the anaesthetist. The anaesthetist has not been examined before this commission by the opposite party no.1 as to the effect of anaesthesia during the post operative stage and its impact on the condition of the patient. The responsibility primarily lies on the opposite party no.1 to summon the anaesthetist and even without anaesthetists evidence; there is ample evidence to prove the negligence of the opposite parties during the period of operation and the post operative stage.
19. Liver Function Test was conducted on 12.10.2006 and the test reports revealed that there was rapid worsening of sepsis and at 3.30 p.m. he suffered bradi cardia, the patients blood pressure could not be recorded. CP CR thus was started as also cardiac massage, however, the patient died at 4.15 p.m.
20. The complainant has stated that the opposite parties invented the theory of post operative complications to cover up the deficiency in service on the part of the doctors who performed the surgery and that they proceeded to perform the surgery without rendering treatment for fat embolism. At the time of admission of the patient in the opposite party no.1 hospital there was no complaint of any injury to the lung and the opposite parties failed to explain how an injury to the lung of the patient was caused which ultimately led to ARDS which in turn caused the death of the patient. The opposite parties had not mentioned in the case sheet, the names of the pulmonologist and ophthalmologist and nephrologists who are stated to have been consulted during the post operative stage of the patient. The opposite parties have the obligation of exercising due diligence and care from the moment the patient was admitted to the opposite party no.1 hospital till he was discharged therefrom.
21. It is the case of the complainant that the opposite parties had not consulted any pulmonologist, ophthalmologist nephrologist. The complainant has stated that the opposite parties had not consulted a cardiologist when the patient developed bradi cardia during the post operative stage. A perusal of the case sheet record would support the contention of the complainant that no names of any pulmonologist, ophthalmologist nephrologists have been mentioned therein. The opposite parties had not consulted any cardiologist when the patients condition was deteriorating and that eventually led to bradicardia. The opposite parties had not denied the statement of the complainant that they had not consulted any cardiologist during the precarious condition the patient was placed in. It is a case of gross negligence on the part of the opposite party no.1 hospital not to have consulted and taken opinion of a pulmonologist when the patient was suffering from ARDS and equally the opposite parties had been negligent in not taking the opinion of ophthalmologist and cardiologist.
22. Recently the Honble Supreme Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital in Civil Appeal No. 2641/ 2010 after considering the entire case law and where the principles of res ipsa loquitor have been made applicable in the case of medical negligence held :
In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
23. The Honble Supreme Court in Savita Garg (Smt) v. Director, National Heard Institute reported in 2004 CTJ 1009 (SC)(CP) (2004) 8 S.C.C. 56 in which it is held as follows:
Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent and that as a result of such negligence the patient died, then in the case the burden lies on the hospital and the doctor concerned who treated that patient, to show that there was no negligence involved in the treatment.
Since the burden is on the hospital, they can discharge the same by producing the doctor who treated the patient in defence to substantiate their allegation that there was no negligence.
It is the hospital which engages the treating doctor, thereafter it is their responsibility. The burden is greater on the institution/hospital than that on the claimant. In any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The institution is a private body and it is responsible to provide efficient service and if in discharge of its efficient service there are a couple of weak links which have caused damage to the patient, then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.
24. In Jacob Mathew v. State of Punjab reported in III (2005) CPJ 9 (SC), the Apex Court has held in para 48(3) as follows:
A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.
25. The opposite parties failed to inform the complications of the treatment and surgery to the complainant and introduced the role of Dr.Venkateswara Swamy who stated to have been informed about the prognosis and complications of the treatment. It is pertinent to note that Dr.Venkateswara Swamy is not relative nor friend of the complainant. The opposite parties have claimed that they had obtained the consent of the complainant on both occasions i.e., prior to the time of performing surgery and prior to the time of putting the patient on ventilator. The consent stated to have been obtained at the time of putting the patient on ventilator has not been signed by the complainant.
Interestingly, the opposite parties have come with the plea that the consent was obtained from two attendants of the patient despite the fact that the complainant was very much available at the opposite party no.1 hospital and he is none other than the father of the patient. The complications of entire treatment have to be explained to the patient or his parent when they are very much present at the opposite party no.1 hospital during the course of the treatment of their son. The treatment rendered without explaining its course and complications thereof constitute negligence on the part of the opposite parties no.1 and 2.
26. The Honble Supreme Court had held in Samira Kohli Versus Dr. Prabha Manchanda & Another reported in CPJ 2008 SC 051 held that any treatment except in emergency condition at the time of surgery, if rendered without explaining the complications thereof and without obtaining the consent i.e., informed consent from the patient or his nearest relatives would constitute negligent treatment on the part of the treating doctor and the hospital. The court held:
32.
We may now summarize principles relating to consent as follows:
(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose
(a) nature and procedure of the treatment and its purpose, benefits and effect;
(b) alternatives if any available;
(c) an outline of the substantial risks; and
(d) adverse consequences of refusing treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery.
27. The principle laid down in the aforementioned case is squarely applicable to the facts of the case as the opposite party no.1 or the opposite party no.2 had not obtained consent of the complainant before the patient was kept on ventilator as also the details of the treatment including the complications thereof has not been explained to the complainant. The opposite parties thus had rendered deficiency in service while rendering treatment to the son of the complainant.
28. The complainant has claimed a sum of `25 lakh towards compensation on account of his sons death due to the negligence on the part of the opposite parties no.1 and 2.
No doubt there was negligence on the part of the opposite parties while they treated the son of the complainant at the opposite party no.1 hospital. It is to be kept in mind that the negligence of the opposite parties by itself is not the sole factor for the death of the complainants son. The complainants son was 27 years old and he was not doing any job at the time of his death. The son of the complainant was unmarried and the complainant has not stated whether his wife is alive or not and she has not been impleaded as a party to the complaint. In the circumstances the age of the complainant has to be considered for application of the multiplier in awarding compensation to the complainant. As stated by the complainant, he is aged 58 years at the time of filing the complaint. If the income of the complainants deceased son is taken as the income of a non-earning member, it would be `2,000/- p.m. and if a sum of `500/- is deducted towards his personal expenses, the net income comes to `1500/- p.m. and if the multiplier of 12 is applied, the amount comes to `1,80,000/-. The complainant had incurred an expenditure of `44,592/- for treatment of his son at the opposite party no.1 hospital. The complainant is entitled to a sum of `20,000/- for loss of love and affection and `5,000/- towards funeral expenses and thus the complainant is entitled to an amount of `2,50,000/- towards compensation which the opposite parties are jointly and severally liable to pay to the complainant.
29. POINT NO.2 In the result the complaint is allowed. The opposite parties no.1 and 2 are directed to pay an amount of `2,50,000/-
towards compensation and a sum of `2,000/-
towards costs. Time for compliance four weeks.
PRESIDENT MEMBER MEMBER Dt.08.03.2011 KMK* //APPENDIX OF EVIDENCE// WITNESSES EXAMINED NIL DOCUMENTS FILED For complainant Ex.A1 Copy of outpatient Card dt.6.12.2006 Ex.A2 Copy of extract of Medico legal record dt.6.12.2006 Ex.A3 Copy of Death Certificate dted 12.12.2006 Ex.A4 Copy of Discharge Receipt dt.12.12.2006 Ex.A5 Copy of Legal Notice dt.2.8.2008 Ex.A6 Copy o Reply Notice dt.18.8.2008 For opposite parties Ex.B1 Case Sheet dt.6.12.2006 Ex.B2 Letter dated 8.3.2007 to RMO Kamineni Hospital from CVSS Subba Rao, Manager (Legal) LIC of India, Warangal Ex.B3 Letter dt.16.1.2007 from LIC of India Warangal to CVSS Subba Rao Ex.B4 Requisition to medical records dt.12.3.2007 Ex.B5 Medical Attendants Certificate dt.18.1.2007 Ex.B6 Certificate of treatment dt.18.1.2007 Ex.B7 Letter to RMO, Kamineni Hospital from LIC dt.20.9.2007 Ex.B8 Affidavit of Peddinarayana dt.26.9.2009 Ex.B9 Receipt dt.26.9.2007 Ex.B10 DTDC Couriers shippers copy dt.28.9.2007 PRESIDENT MEMBER MEMBER KMK*