National Consumer Disputes Redressal
Dr. Hemen S. Kulkarni vs Dhanashri Dhananjay Savardekar & Anr. on 5 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 791 OF 2015 (Against the Order dated 14/08/2015 in Complaint No. 330/2002 of the State Commission Maharastra) 1. DR. HEMEN S. KULKARNI M.S., D.N.B., TUSHAR MATERNITY AND SURGICAL NURSING HOME, PADMAVATI NAGAR BUILDING NO. 1, GENERAL A.K. VAIDYA MARG, NEAR DINDOSHI DEPOT, DINDOSHI, GOREGAON (EAST) MUMBAI-400063 ...........Appellant(s) Versus 1. DHANASHRI DHANANJAY SAVARDEKAR & ANR. 98/9, LAXMI PALACE, 76, ARYA SAMAJ COMPOUND, N.M. JOSHI MARG, LOWER PAREL, MUMBAI-400013 MAHARASHTRA 2. DR. NARESH M. SINGHI, M.S. APOLLO ENDSCOPY CENTRE, 37, HIRNEN SHOPPING CENTRE, S.V. ROAD, GOREGAON (WEST) MUMBAI-400062 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Appellant : Mr. Yogesh C. Naidu, Advocate with Mr. Gurdeep Singh Sachar, Advocate For the Respondent : For the Respondent No. 1 : Mr. Jay Savla, Advocate with Ms. Shilpi Chowdhary, Advocate For the Respondent No. 2 : Mr. S.B. Prabhavalkar, Advocate Dated : 05 Apr 2016 ORDER DR. S.M. KANTIKAR, MEMBER
1. On 5.11.2001, the complainant, Smt. Dhanashri Dhananjay Savardekar, took her mother, Smt. Geeta (herein referred as "patient") as she was suffering from abdominal pain, to Dr. Hemant Kulkarni, the OP-1, at Tushar Maternity and Surgical Nursing Home. The OP-1/appellant admitted the patient, started treatment by I.V. fluids, antibiotics and pain killers. On 07.11.2001, he performed ultrasonography (USG) of abdomen. Thereafter, OP-1 referred patient to Dr. Naresh Singh (OP-2), at Apollo Endoscopy Centre for ERCP (Endoscopic Retrograde Cholangio Pancreatography). On 08.11.2001, OP-2 performed ERCP. As per ERCP report, during procedure, the Dormia basket (instrument used to extract the stone) broke and got impacted. Therefore, OP-2 sent the patient back to OP-1, for open surgical removal of the stone and broken basket. On the same day, OP-1 performed open surgery, but he could not remove the stone/basket. After two days, i.e., on 10.11.2001, patient developed biliary leak around the T-tube. Therefore, it was careless treatment and negligence on the part of OP-1 and 2. Hence, the OP-1 himself admitted the patient to KEM hospital (in short KEM) at 10 PM. At KEM, patient underwent operations, on 14.11.2001 and 22.11.2001. According to the KEM reports, it is clear that, OP-1 and 2 lack necessary skill and knowledge, the OPs treated the patient negligently, the nursing home was ill equipped.
2. Therefore, the complainant's main allegation that, OP-1 failed to remove stone by open surgery. The Nursing Home of OP-1 was ill-equipped to carry out emergency operation. OP-1, on knowing it to be a complicated case, should have referred the patient to KEM Hospital instead of operating at his private nursing home. Therefore, patient's condition deteriorated further and later she was referred to KEM in a serious condition. It was due to incomplete medical treatment done by both the OPs, the patient died on 27.11.2001. The complainant further alleged that because of complications and precarious condition of the patient, her father suffered mental shock and died on 25/11/2001. Therefore, the complainant alleging medical negligence against the OPs, filed the complaint before State Commission, Mumbai claiming a sum of Rs.15 lacs, together with costs.
3. The State Commission partly allowed the complaint and directed OP 1 to pay Rs.10,00,000/- to the complainant, with interest @9% per annum, from the date of complaint, within a period of sixty days with costs quantified at Rs.25,000/-.
4. Aggrieved by the order of the State Commission, the OP1 filed first appeal before this Commission.
5. We have heard the learned counsel for both the parties. The Appellant/OP-1 was present with his counsel Mr. K. C. Naidu. The counsel vehemently argued that, the Appellant/OP1 treated the patient, as per standard norms. The patient was admitted on 5.11.2001, to Tushar Hospital, for complaints of abdominal pain. Therefore, patient was treated conservatively, by I.V. fluids, antibiotics, with pain killer injection. She was advised to take liquids only. On next day, vomitings continued. On 07.11.2001, patient showed guarding and tenderness in the right upper abdomen, a repeat ultrasound (USG) was carried out by Dr. Daptardar to rule out any complications. It revealed a large stone 1.1 x 0.8 cm at the ampulla (lower end of the common bile duct-CBD), dilated bile duct 12 mm (normally 7 mm). Therefore, the patient was advised to undergo an ERCP for endoscopic extraction of stone in CBD, by Dr. Naresh Singhi (OP-2).
6. On 08.11.2001, ERCP was carried out by OP2; however, since the stone was big, hard, and located at the ampulla, OP2 performed mechanical lithotripsy. During the procedure, the Dormia basket got impacted and broke, but the stone could not be removed. Therefore, OP 2 sent back the patient to OP-1, for an open surgical removal of basket and stone.
7. We have perused the medical record of OP-1 hospital. It transpired from the clinical notes and USG findings that, a large stone of 1.1 x 0.8 cm was located at ampulla (lower end of CBD). Therefore, OP1 referred the patient to OP 2 Dr. Naresh Singhi for ERCP, with a reference letter, which is reproduced, as below:
"Dear Naresh Referring herewith Mrs. Geeta Mangaokar a case of acute cholecystitis with impacted stone at the lower end of CBD for ERCP study, as per talk with you on Telephone..
Thanking you"
8. Dr. Naresh Singhi OP-2 performed ERCP on 8.11.2001. His notes are reproduced as below;
"Pt. Referred by Dr. Heman Kulkarni for ERCP A Large CBD Stone ECRP à Large CBD stone of more than 1.5 cm. Wide papillotomy done. While retrieval of stone basket got impacted ampulla. Mechanical lithotripsy done, but basket wires broken, so stone with basket wire got impacted at Ampulla.
Pt was immediately referred back to Dr. Heman Kulkarni for Laparotomy & removal of stone and basket. Pt. stood procedure very well."
9. Upon perusal of evidence of OP-1, it reveals that he is a Surgeon M.S. (General Surgery), worked as Associate Professor of Surgery and one Unit Head at KEM Hospital. He has been practicing as a Consultant Surgeon and GI surgeon for past two decades (19 years). In the instant case, he performed the emergency open surgery of the patient for removal of basket and the stone, as surgery was necessary to avoid complications, like septicaemia and to save the life of patient. We have perused the consent form; it is a proper informed consent, signed by the patient and her daughter. Despite his all efforts, the impacted stone from the CBD and the basket, could not be removed. Therefore, OP-1 placed T-tube to drain the infected bile and the pus. The patient withstood the surgery. The patient's vital parameters were normal, for almost 36 hours' but, then developed a leak around T-tube. Therefore, OP 1 gave sterile wash and took a decision to shift the patient to KEM hospital, for further management and to avoid further complications. It is pertinent to note that, the OP1 himself accompanied the patient to ensure easy admission procedures at KEM. Therefore, in our considered view, the OP-1 performed his duty, as per the standard norms. We do not find any dereliction in the duty of care by OP-1, while performing emergency open surgery. In our view, it was a proper decision of OP-1.
10. During arguments, the counsel for appellant/OP1 submitted that, the State Commission passed an order, without considering the KEM records, because complainant did not produce entire medical treatment record of KEM (Brihanmumbai Mahanagarpalika) before State Commission. In our view, the said medical record is crucial and necessary to decide the instant case. Therefore, in the interest of justice, we allowed the counsel for OP1, to file the entire medical treatment record from KEM.
11. As per medical record of KEM, the patient was admitted to KEM, on 10.11.2001, at 10.50 PM. The patient was conservatively treated. (medical management). It was suspected of bilioma with peri-tube leak, therefore, on 14.11.2001, "Emergency Exploratory (re) Laprotomy with drainage of thick Bilioma and reinsertion of T-tube", was performed. As per operative notes, the doctors at KEM also failed to remove Dormia and stone. Thereafter, on 22.11.2001, ERCP was also performed, but the doctors at KEM faced difficulty, while removing the CBD stone, therefore, conducted an emergency OGD scopy for removal of broken basket. The basket was removed with snare and Gastroscope. However, they could not remove the CBD stone, hence, the procedure was abandoned. The patient was kept on AC mode of Newport ventilator. The patient was regularly investigated for ABG, electrolytes and given higher doses of antibiotics, vitamin K and other medication. Patient was continuously monitored, throughout hospitalisation. Unfortunately, patient passed away, on 27.11.2001.
12. We have gone through several medical literature and Farquharson's Textbook of Operative General Surgery (10th edition). It is stated that, ERCP is a valuable tool in pancreatic-biliary evaluation and treatment. It is the gold standard, is generally reserved for therapeutic intervention. Endoscopic management is now the standard of care for primary management of common bile duct (CBD) stones causing biliary obstruction. Stones are successfully removed with ERCP using a Dormia basket or balloon catheters in 85% to 90% of cases. Impaction of the extraction basket is a recognized complication of ERCP, and is usually the result of discrepancy between the size of bile duct stone and the diameter of the distal bile duct. Whilst mechanical lithotriptors can be used to crush the stone or break the wires of the basket to allow its release, failure of the lithotriptor device can occur and in the past has been managed surgically.
In the instant case, the patient showed impacted stone and basket in the CBD. It's removal was most essential, therefore OP-1 performed emergency open surgery, on 8.11.2001.
13. It is well established through a catena of judgments of Hon'ble Supreme Court which discussed the issue of medical negligence. The basic elements of Negligence are (a) Duty of Care (b) Breach of Duty (c) Proximate Cause (Causa Causans) and (d) Damage. Therefore, to prove the case of negligence, all these criteria must be satisfied and in cases of medical negligence, in India.
14. The Hon'ble Supreme Court in, Kusum Sharma & Others vs Batra Hospital & Medical Research Centre and others, (2010) 3 SCC 480, where the bench comprising of Hon'ble Justice Dalveer Bhandari and Hon'ble Justice Harjit Singh Bedi, beautifully, summarized how to identify medical negligence in a case. Not only should these points be kept in mind by all the respective courts while deciding such cases, it's also important for practitioners to know, where the law stands on medical negligence. We would like to quote relevant paragraphs (50, 51, 52, 72,73,74,78 79 and 81) from the said judgment. The court observed that,
50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the 25benefits without taking risks. Every advancement in technique is also attended by risks.
51. In Roe and Woolley v. Minister of Health (1954) 2 QB 66, Lord Justice Denning said : `It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way."
52. It was also observed in the same case that "We must not look at the 1947 accident with 1954 spectacles:". But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of 26proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.
It further observed that,
72. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):-
36 "The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
73. In Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord Denning speaking for the court observed as under:-
"a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
74. In another leading case Maynard v. West Midlands Regional Health Authority the words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 were referred to and quoted as under:-
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men...The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...".
78. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. This court in Jacob Mathew's case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
79. Doctors in complicated cases have to take chance even if the rate of survival is low.
81. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals
15. In Jacob Mathew's Case, (2005) SCC (Crl.) 1369, Hon'ble Supreme Court observed that the higher the acuteness in emergency and the higher the complication, the more are the chances of error of judgment. The court further observed as under:-
"25......At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice 39 prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."
It further observed that, "If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason - whether attributable to himself or not, neither can a surgeon successfully wield his lifesaving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society".
16. The Hon'ble Supreme Court made the following observations in the case - Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634, as follows:
"The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
17. Therefore, applying precedent from the judgments discussed supra, considering the medical literature, and entire hospital records, it is clear that, OP-1 is a qualified surgeon; the patient was properly investigated and diagnosed by OP-1, on 6.11.2001, when initial treatment was given. Then, on 7.11.2001, for removal of CBD stone, he referred her to OP-2, by ERCP. On the morning of 8.11.2001, OP-2 performed ERCP, but the Dormia basket broke and the stone got impacted in CBD, therefore, patient was referred back to OP-1, for emergency surgical exploration. Therefore, OP-1 performed CBD Exploration operation (Choledocholithotomy) at his nursing home, but the stone and basket could not be removed. Therefore, as a routine, OP-1 temporarily left the "T-tube" in the CBD, after surgery, for drainage of bile. In our view, it was proper duty of care and it is as per standard of practice. It is pertinent to note that, in the KEM, same treatment i.e. CBD exploration (14.11.2001) and ERCP (22.11.2001) was given, but the doctors there also failed to extract the stone and basket. Despite all possible treatment at KEM, the patient died.
18. It is to note that, the complainant did not file entire KEM record before State Commission; therefore the Commission failed to make observations on it. In our opinion, the OP-1 has followed standard protocol of the treatment, with his experience and expertise. The requisite elements of proof in a medical negligence action are that there must be a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of the patient's injury. In the instant case, we do not find that, the OP-1 deviated from accepted medical practice, whereas, the act of OP was not at all, a proximate cause of patient's injury. Thus, it was not a case of medical negligence. It is well said that, doctors in complicated cases have to take chance, even if the rate of survival is low.
19. Therefore, in our view the State Commission fell in error in holding that, there was deficiency and negligence on the part of OP-1/appellant. Considering entirety, we set aside the order passed by State Commission and allow this appeal. Consequently, the complaint is hereby dismissed. However, there shall be no order as to costs.
20. The Registry is directed to return the statutory amount deposited by the Appellant, before this Commission, to him, along with interest accrued thereon, if any, forthwith.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER