State Consumer Disputes Redressal Commission
Dr. Hariharan vs Sundari @ Rajathi & Anr. on 25 March, 2026
IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
AT NEW DELHI
NC/FA/424/2010
(From the Order dated 05.10.2010 in CC No. 76/1998 of the
Tamil Nadu State Consumer Disputes Redressal Commission)
Vijaya Health Centre ... Appellant
Versus
K. Karibeeran (deceased) & Ors. ... Respondents
NC/FA/427/2010
(From the Order dated 05.10.2010 in CC No. 76/1998 of the
Tamil Nadu State Consumer Disputes Redressal Commission)
K. Karibeeran (deceased) & Anr. ... Appellants
Versus
Vijaya Health Centre & Anr. ... Respondents
BEFORE:
HON'BLE MR. JUSTICE A.P. SAHI, PRESIDENT
HON'BLE MR. BHARATKUMAR PANDYA, MEMBER
Appeared at the time of arguments:
For Vijaya Health Centre : Mr. Siddharth Vasudev, Advocate
For Dr. Hariharan : Mr. M. Padhi, Advocate
For the Complainant : Ex-parte vide order dated 16.12.2014
Mr. Ankit Sahu, Advocate
Mr. Anish R. Sahu, Advocate
Pronounced on: 25th March 2026
ORDER
JUSTICE A. P. SAHI, PRESIDENT
1. These two appeals arise out of a complaint of medical negligence and have been filed questioning the order of the State Commission dated 05.10.2010 in CC No. 76 of 1998. The complaint has been allowed by the SCDRC, Chennai allowing the complaint in part and awarding a sum of Rs. 10 NC/FA/424/2010 & 427/2010 Page | 1 lakhs against both the appellants towards medical expenses and compensation for negligence along with a cost of Rs. 10,000/-.
2. F.A. No. 427/2010 has been filed by Dr. Hariharan, who passed away on 14.04.2024 during the pendency of these appeals and applications were moved by the legal heirs of Dr. Hariharan for substitution. The same was allowed on 03.12.2024 by the following order:
These are three appeals arising out of a common order passed by the State Commission in a case of medical negligence. Appeal No.424 of 2010 has been filed by the hospital, namely, Vijaya Health Centre whereas appeal No.427 of 2010 has been filed by Dr. Hariharan, the treating doctor.
It appears that later on the complainants also filed Appeal No.8 of 2011. From the order sheet, it appears that the appeal filed by the complainants was admitted on 14.07.2011 and was directed to be connected alongwith other two appeals where the complainants were arrayed as respondents. From the order sheet of first appeal No.8 of 2011, it is apparent that no one has been appearing on behalf of the complainants/appellants for the past several occasions nor anyone has appeared to press this appeal. Accordingly, first appeal No.8 of 2011 is dismissed for want of prosecution and shall be delinked henceforth. In the other two appeals, notices had been issued. Yet, in spite of service of notice, no one appeared for the respondents/complainants even after service. Vide order dated 16.12.2014, this Commission directed the matter to be proceeded ex-parte against the respondent No.2/complainant. The order to proceed ex-parte against the complainant is confirmed as none appears for the complainant.
It has been pointed out by the learned counsel that the treating doctor, Dr. Hariharan has expired on 14.04.2024 and IA/15567/2024 & IA/15568/2024 have been filed on behalf of the legal heirs of Dr. Hariharan praying that the delay in filing the substitution application be condoned and the legal representatives of the appellant in FA/427/2010 and as respondent in FA/424/2010 be brought on record.
We have heard the learned counsel for the appellants in both the appeals and we are satisfied that sufficient cause has been shown for condoning the delay in filing the substitution application. Accordingly, the delay condonation application as well as the substitution applications are allowed.
NC/FA/424/2010 & 427/2010 Page | 2 The legal representatives of late Dr. Hariharan are taken on record. Amended memo of parties may be filed in both the appeals.
In these appeals, we find that there were directions issued at the time of the admission stage itself and as an interim measure, on 04.05.2011 while admitting the FA/427/2010, an order was passed that the execution of the operative order of the State Commission shall remain stayed, provided the appellant therein deposits 50% of the amount i.e. to the extent of Rs.2.5 lacs. A similar order was passed in FA/424/2010 filed by the hospital and it is stated at the bar that each of these appellants have deposited Rs.2.5 lacs as directed under the interim orders.
The arguments on the merits of the matter have to commence and learned counsel for the appellant in FA/427/2010 prays that it may be taken up on some other day. Learned counsel for the hospital in FA/424/2010 states that she will be adopting the arguments to be raised in FA/427/2010 and in addition thereto she will be advancing her arguments in respect of the findings on vicarious liability which is being contested by the hospital in the said appeal. The arguments, therefore, shall now commence on 17.01.2025 at 2.00 pm.
3. On 17.01.2025, the matter was heard and the following order was recorded:
Heard learned counsel for the parties. From a perusal of the impugned Order, on an indepth reading thereof from paragraphs 34 to 45, we find that the discussion is about the various treatments conducted, but one of the major issues that engaged the attention of the State Commission was about the cause of perforations in the large intestine. The allegations against the appellants was that this injury had been caused during the laparoscopy whereas the defence taken by the doctor is that the perforations were on account of something spontaneous caused by acute colitis which might have occurred as it does happen rarely in some cases.
The question, therefore, is as to whether the perforations in the large intestine were caused by any injury of an instrument during the performance of the laparoscopic surgery or was it a spontaneous occurrence on account of an acute colitis. The appellant doctor in his statement before the State Commission as RW-2 has categorically denied the possibility of any injury being caused during the laparoscopic surgery to the NC/FA/424/2010 & 427/2010 Page | 3 large intestine. The defence set up was of the perforations being spontaneous due to acute colitis.
Learned counsel for the partiers may, therefore, further examine the evidence as well as material thereon to either support or contest this position regarding any conclusion arrived at by the State Commission on the issue of perforations of the large intestine. In order to proceed further, learned counsel may also scrutinize the evidence led in this regard as well as the medical literature available to support or contest these contentions. They may do so by the next date fixed.
There is one more aspect of the matter that the State Commission in paragraph 13 of the impugned Order has recorded and that is that no expert opinion evidence was led on behalf of the complainant, yet while concluding to hold the appellants to be liable the State Commission has opined that prima facie on the basis of the allegations made and the evidence led the complainant had discharged his burden and, therefore, the onus lay on the appellants to disprove it otherwise.
Let the matter be listed on 17.04.2025 at 2.00 p.m.
4. On 21.11.2025, a detailed hearing took place regarding the submissions of the learned counsel for the appellants that is extracted hereinunder:
These two appeals have been filed by the Hospital and the Doctor who had undertaken the treatment of one Mr. K. Karibeeran, a 43 year old person who had an intestinal tumour. The deficiency alleged against the appellants is about the procedure of the surgery conducted primarily alleging that the surgery was a laparoscopy and while performing the same, the surgical instrument was applied negligently that resulted in perforation of the intestines and other consequential complications that makes out a clear case of medical negligence against the appellants.
The State Commission vide order dated 05.12.2010 in CC/76/1998 accepted the contention of the complainant, who by that time had expired and was represented by his legal heirs, and the complaint was allowed to the extent indicated therein. The State Commission applied the principle of res ipsa loquitor as well as recorded findings to conclude that the appellants were negligent.
NC/FA/424/2010 & 427/2010 Page | 4 The appeals were earlier taken up and heard on 17.01.2025 and it was informed that Dr. Hariharan had expired on 14.04.2024 and is now represented through his legal heirs.
Mr. Padhi has advanced his submissions contenting that the deceased patient was suffering from past ailments of polio, was anaemic and was also having a bleeding in the small intestine. His Haemoglobin level was almost 7.5 and there was blood found in his stool as a result whereof, after his examination, he was advised surgery and was accordingly admitted on 17.10.1996 in the appellant Hospital, where he was treated by Dr. Hariharan.
The surgery, which was a laparoscopy performed on 24.10.1996 for the removal of a tumour in the abdomen. Mr. Padhi has extensively read the discharge summary dated 03.11.1996 issued from the Hospital calling upon the patient to visit after one month and to undertake the treatment as advised. The discharge summary records the condition of the patient, the surgery carried out, and the treatment given. He was discharged in a fair general condition.
The patient made some complaint on 08.11.1996 telephonically regarding pain, loose stool and vomiting and was accordingly advised to immediately come to the Hospital and get himself admitted. According to the learned counsel, the patient instead arrived after a week on 16.11.1996 with all the said symptoms when he was admitted and then an Enterectomy was performed on 19.11.1996. This had to be undergone because about 30 inches of the small intestine had to be removed due to abdominal obstruction caused by adhesion of the small intestine and occurrence of anastomosis. Adhesion was of such a nature that the intestines had adhered to each other in a ladder fashion, and therefore it had to be removed as it would have further caused complications.
It was thereafter at this stage that one hole of the size of 5mm was located in the large intestine (colon) and it is this perforation that was sought to be treated by adopting a procedure of healing the same through an open wound. There was no other perforation either prior to the performance of the first surgery or even the second surgery.
Mr. Padhi submits that subsequently due to perforations caused by colitis some faecal matter had collected and therefore the process of peritoneal toileting was adopted, that were not subsequent surgeries as alleged by the complainant and noted in the order of the State Commission. As a matter of fact when the patient was examined on 20.12.1996, two other holes were noticed over and above the existing hole in the colon which NC/FA/424/2010 & 427/2010 Page | 5 were not there when the previous surgeries were performed nor were they indicated in any of the endoscopy, CT Scan, and X-ray examination that were conducted earlier. Mr. Padhi submits that there was no reason for the Doctor to have not treated any other existing hole when one of the holes was being treated. There was therefore no negligence and as a matter of fact these holes and perforations which emerged later on were due to colitis and were spontaneous perforations.
Mr. Padhi submits that the allegation that the perforation had been caused during the performance of the first surgery on 24.10.1996 is absolutely incorrect. He submits that the said surgery was performed through the umbilicus, which is the naval area, and there was no scope of the instrument traveling downwards towards the colon, where the perforation was subsequently found that was almost 8 inches below the point of surgical invasion.
He further submits that had any such perforation taken place then there would have been collection of faecal and other matter causing septicaemia and shock that would have developed within 24 hours of such negligence. However nothing happened of this sort after the surgery dated 24.10.1996 and the patient was discharged in a fair condition on 03.11.1996.
Mr. Padhi therefore submits that this was not a case of perforation through some surgical intervention, but was an infection which developed due to colitis and was spontaneous perforation for which he has relied on medical literature that has been read by him to explain the distinction between ―idiopathic colonic perforation‖ and ―stercoral colonic perforation‖. He has also referred to a chart extracted in one of the articles to point out that had there been any damage due to a surgical instrument, the perforation would have been linear, whereas spontaneous perforation has a round or ovoid hole. In the present case the hole in the colon was a round hole of 5mm and the other two holes were also round holes with some decomposed necrotic and inflammatory edges.
He therefore submits with the aid of the literature, which has been referred to by him to contend that the perforation had got no connect with the surgery performed, and this is a mere incorrect inference drawn on the principles of res ipsa loquitor by the State Commission on the arguments advanced on behalf of the complainant without there being any evidence in this regard.
NC/FA/424/2010 & 427/2010 Page | 6 He submits that inspite of this plea having been raised, the State Commission did not examine the issue of spontaneous perforation and therefore arrived at a wrong conclusion.
He further submits that inspite of the fact that the complainant had demanded an expert opinion, the State Commission did not call for the same.
He then submits that even otherwise no post-mortem was conducted of the deceased to arrive at any such conclusion and therefore in the absence of any expert opinion, the State Commission could not have concluded the perforations to have been caused due to negligent surgery.
He then submits that an opinion was obtained by the complainant from one Mr. Rangabhashyam, which is a simple medical certificate with no details and therefore cannot be treated as an expert opinion. Even otherwise the said doctor was neither examined nor was his affidavit filed as such the said opinion is not creditworthy and deserves to be rejected.
Mr. Padhi further contends that the complainant got discharged on 21.12.1996 after his admission for second surgery against medical advice and then again voluntarily left the Hospital.
In such circumstances there could not be any inference of medical negligence on the part of the appellants.
He submits that the State Commission has against the record indicated that there was a loss of weight in the patient from 78 kg to 35 kg. He further submits that the State Commission has concluded this on account of the observations made in the discharge summary of the subsequent hospital, where the complainant was admitted, namely Ramana Surgical Clinic observing that a large part of the intestines were removed and therefore there was a weight loss. Mr. Padhi submits that this is totally incorrect inference, in as much as, it was only 30 inches of the small intestine that was removed which would not have caused the weight loss as concluded by the State Commission. Even otherwise the said conclusion is against record and he has pointed out to the weight of the patient having been recorded between 69 to 70 kg on 16.11.1996 (Page 98 of volume 2 of the documents) and 63 kg on 18.12.1996 (Page 115 of the same volume). Mr. Padhi therefore contends that all the inferences drawn by the State Commission are contrary to the medical evidence on record and the Hospital and the Doctor undertook all possible treatment in order to save the patient from infection and further deterioration.
NC/FA/424/2010 & 427/2010 Page | 7 He has extensively read the first and second volume of the Hospital sheets and progress notes to substantiate his submissions. The contention therefore is that there was neither any medical negligence nor any deficit performance so as to infer allegations of medical negligence as complained of. Hence the appeal deserves to be allowed and the impugned order of the State Commission deserves to be set aside. He submits that he proposes to cite certain decisions in support of his submissions on the next date of hearing. Subject to the above he has concluded his arguments and has urged that he will wait for any query in rejoinder.
Mr. Siddharth Vasude, learned counsel for the Hospital submits that he adopts all the arguments advanced by Mr. Padhi and would supplement it if needed on the next date.
Since no further time is left today, Mr. Sahu, learned counsel for the complainant will advance his submissions on the next date.
Let a copy of the medical literature relied on by Mr. Padhi be dispatched to the learned counsel for the other side to study the same and respond accordingly.
List on 30.01.2026.
5. Accordingly, the matter was finally heard on 30.01.2026 and Mr. Siddharth Vasudev concluded his arguments on behalf of the hospital urging that the hospital cannot be held liable for any such alleged negligence, in as much as, according to the admitted case of the complainant, the treatment was undertaken entirely under Dr. Hariharan and it is on his advice that the patient was brought to the appellant hospital. In such circumstances, there is no role of the hospital, in as much as, there is no negligence at all either alleged or proved regarding the services of the hospital. Consequently, the appeal filed by the hospital deserves to be allowed and the impugned order deserves to be set aside in the absence of any proof of negligence on the part of the hospital. He submits that there is neither any direct liability or any vicarious liability as well as it is not the hospital that had engaged the doctor NC/FA/424/2010 & 427/2010 Page | 8 and to the contrary it was the doctor who had advised the patient to be admitted in the appellant hospital for carrying out the surgery. It is therefore alleged that in the absence of any proof of negligence against the hospital and in the absence of any finding by the Commission to that effect, it was wrong to have saddled the hospital with a joint and several liability. The decision relied on by the State Commission in the case of Savita Garg vs. Director, National Heart Institute, (2004) 8 SCC 56 is misplaced, in as much as, the doctor is neither the staff of the appellant hospital nor any of the services rendered by the staff of the hospital has been questioned or established to be negligent. Consequently, no vicarious liability can be attributed and hence vicarious liability cannot be imposed. There is no proof of any absence of due care on the part of the hospital nor any finding to that effect hence the conclusion by the State Commission is erroneous and the order deserves to be set aside.
6. Responding to the arguments of the appellants, learned counsel for the respondent - complainant Mr. Sahu urged that the argument of Mr. Padhi, appearing on behalf of the heirs of the late Doctor, has advanced submissions with the help of medical literature namely that published in the Journal of Medical Care Research and Review - October, 2021 on the subject of spontaneous perforation of the colon. Mr. Sahu has advanced his submissions to contest the arguments of Mr. Padhi regarding the claim that the perforation was spontaneous and was not on account of any injury caused during the laparoscopic surgery. Inviting the attention of the Bench to the said article, he submits that spontaneous perforation of the colon has two distinct NC/FA/424/2010 & 427/2010 Page | 9 characteristic features, the cause whereof arises on two different contingencies. The impact of such perforation and its dimensions are therefore different. He urges that in the present case, the perforation is of an oval shape of 5mm dimension. He submits that an oval perforation can occur only in the case of stercoral colonic perforation. He has invited the attention of the Bench to Table-1 of the characteristics which are extracted hereinunder:
7. With the help of the said chart, it is urged by Mr. Sahu that a stercoral perforation often oval shape occurs if the patient has a history of chronic constipation. He therefore submits that in the entire documents on record including the discharge summary and the documents referred to regarding the NC/FA/424/2010 & 427/2010 Page | 10 treatment of the patient nowhere indicates that the patient had any history of chronic constipation. To the contrary, the symptoms indicated are that when he was treated, he was suffering from loose motions. He therefore submits that in the absence of any evidence of chronic constipation, the oval perforations cannot be labelled as spontaneous colonic perforations.
8. He then explains that if a patient has no history of constipation then the perforation is characterized as Idiopathic Colonic Perforation, but in such cases, the rupture is linear and not oval. Thus, in the present case, it could not be an idiopathic colonic perforation either, and since the patient did not have any history of chronic constipation or any diagnosis in that respect, the absence of any symptoms of constipation could not lead to stercoral colonic perforation of an oval shape. The submission is that none of the characteristics of spontaneous perforation were present nor can be inferred on the facts of the present case. He further submits that the said medical reports also record that such cases of perforation are very rare and in the absence of any such material to support the same to be a spontaneous perforation, the only inference that can be drawn is that the colon was in all probability punctured during the laparoscopic surgery performed by Dr. Hariharan.
9. He has relied on another article in respect of injuries incurred during such invasive abdominal laparoscopic surgery which is an article authored by some doctors of USA published on 30.03.2003 in Springer publications. He has urged that the said article records that injuries do occur during such laparoscopic surgeries, even if they occur only 1 in 300 cases studied in the said article.
NC/FA/424/2010 & 427/2010 Page | 11
10. He has then relied on an article of laparoscopic surgery from the Textbook & Atlas by C. Palanivelu (Vol. I) to urge that direct injury can be caused by the "Veress needle" or by operating "Trocars". He submits that in the instant case, the Trocar is stated to have been introduced at the umbilical level and a defence has been taken that it could not have reached the site of the sigmoid colon about 6-8 inches down below where the perforation was located. The contention of the learned counsel with the help of another article on the Mechanism Management And Prevention of Laparoscopic Bowel Injuries is that an inadvertent injury is rare that is complicated and that the procedure can cause injury even to a sigmoid colon while performing laparoscopy.
11. Mr. Sahu has countered the arguments of Mr. Padhi about the length of the needle not being enough to reach the sigmoid colon which is located 6 to 8 inches below the umbilical region. He submits that a puncture by the needle or Trocar is possible and such injuries show their manifestations even after 2, 3, 5 or 14 days. He maintains that there is every probability of the puncture having been caused during the surgery and he has attempted to explain the same through the help of diagrams.
12. Mr. Padhi on behalf of the Doctor has reiterated his submissions and urged that the laparoscopy was performed for removal of the tumour from the small intestines and this alleged targeted injury could in no way have reached the sigmoid colon which is almost 6 to 8 inches below and even if the allegation of perforation by the instrument is presumed to be correct, then there is no explanation as to how could such an injury be caused with no NC/FA/424/2010 & 427/2010 Page | 12 damage to the intestines which lay in between the umbilical cord region and the colon area which was near the rectum.
13. It is here that Mr. Sahu learned counsel for the complainant has urged that the articles cited by him do indicate such rare instances that could happen and therefore no such presumption can be drawn that the perforation cannot happen without causing any injury to the other parts of the body. With the aid of the said articles, learned counsel for the complainant has urged that the theory set up on behalf of the appellants about the perforation being spontaneous is therefore liable to be rejected and the findings of the State Commission on that count on the principles of res ipsa loquitur cannot be doubted.
14. Mr. Padhi in rejoinder has reiterated his submissions and has cited the decision in the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. vs. Dr. M.A. Methusethupathi & Ors., Civil Appeal No. 6507 of 2009, decided on 20.04.2022 to urge that the Apex Court has also explained the principles of medical negligence in a similar matter and has read out paragraphs 26 to 31 of the said decision to substantiate his submission.
15. He has contested the submissions raised by the learned counsel urging that the patient himself did not turn up and sought voluntary discharge from the hospital and as such to attribute negligence is absolutely unjustified. He has indicated that the patient was suffering from anaemia, hookworm infestation and external piles for which he has referred to the discharge summary dated 03.11.1996 which is the first discharge summary. The submission is that the patient did have these intestinal problems and the NC/FA/424/2010 & 427/2010 Page | 13 tumour was removed and the complications in the small intestines were rectified and the surgery was successful with the subsequent removal of a portion of the small intestine. He submits that there is no deficiency or negligence in the surgery performed and the perforations were spontaneous perforations with no attributes of any injury caused by a surgical instrument. He submits that there is no evidence to establish that the perforation was on account of a puncture caused by the Trocar or the needle nor the nature of the perforation was such that can be attributed to a surgical instrument.
16. Learned counsel for all the parties therefore concluded their submissions and orders were reserved.
17. It deserves to be noted that Dr. Hariharan, the appellant in F.A. No. 427 of 2010 died during the pendency of this appeal and he has been substituted by his legal heirs under order dated 03.12.2024. It would be apt to clarify that ordinarily such claims in person are governed by the maxim "Actio Personalis Moritur Cum Persona". However the said principle was dealt with by a 5 Member Bench of this Commission in Balbir Sing Makol Vs. Chairman, M/s. Sir Ganga Ram Hospital and Others (2001) CPJ 45 (NC) where relying on Winfield on Tort and the maxim "Actio Personalis Moritur Cum Persona" was interpreted and it was held that in a case pertaining to services under the Consumer Protection Act, had there been an adjudication and a decree intervening during the lifetime of the contesting party, then such a decree would be binding and executable against the legal representatives, but where the contesting party dies during the pendency of the litigation without a decision, in that event keeping in view the law laid down by the Apex Court in NC/FA/424/2010 & 427/2010 Page | 14 Melepurath Sankunni Ezhuthassan Vs. Thekittil Gopalankutty Nair, 1986 AIR 411 the heirs of the contesting doctor could not be prosecuted against as the liability stands extinguished and the claim would abate against him.
18. In this view of the matter, the aforesaid 5 Members‟ pronouncement is a binding precedent. The aforesaid ratio applies on the facts of the present case as well. No other law overruling the same or contradicting the same has been cited.
19. It may be pointed out that the said legal possession was once again discussed in CC No. 192 of 2013, Smt. Usha Gupta & Ors. vs. M/s. Max Super Speciality Hospital & Ors., decided on 19.09.2025, where the observations made by this Commission on this legal issue were discussed as under:
8. ...xxx... At this stage, it would be relevant to point out that the legal position with regard to the substitution of heirs of a deceased Doctor who is an OP in a complaint cannot be permitted, except in an appeal or further proceedings if the complaint has been finally decided and a decree has intervened.
9. A Five Member Bench of this Commission in the case of ―Balbir Singh Makol Vs. Chairman, M/s. Sir Ganga Ram Hospital and Others (2001) SPJ 45 (NC)‖ and the view of the Apex Court in the case of ―Melepurath Sankunni Ezhuthassan Vs. Thekittil Gopalankutty Nair, AIR 1986 SC 411‖ was considered by this Commission in the case of ―Dr. Manas Pal & Ors. Vs. Dr. Shyamal Baran Mondal & Ors. in CC/714/2018 decided on 10.11.2023‖. The ratio of the said decisions rests on the maxim ―Actio Personalis Moritur Cum Persona‖. It has been held that in a case pertaining to services under the Consumer Protection Act if there is an adjudication and a decree intervening during the lifetime of the contesting party, then such a decree would be binding and executable against the legal representatives. But where the contesting party dies during the pendency of the litigation without any adjudication or decision, no further steps can be taken against the heirs of the deceased doctor as the liability stands extinguished and the claim would abate against the doctor.
NC/FA/424/2010 & 427/2010 Page | 15
10. Another decision of the Apex Court while referring to the legal maxim quoted above and while interpreting the provisions of the Succession Act, 1925, the Indian Contract Act, 1872 and the Specific Relief Act, 1963 dealt with the said proposition in a dispute relating to a Joint Venture Agreement between the owners of the property and the Developer decided by this Commission and proceeded to consider the issue where this Commission had held that the death of the Developer has no effect upon the obligation of the Developer under the Development Agreement and the same has to be executed by the legal heirs of the Developer. Basically, this was under challenge before the Apex Court by the Developer and the controversy encapsulated by the Apex Court in paragraph 16 of the judgment in the case of Vinayak Purshottam Dubey (Deceased) through LRs vs. Jayashree Padamkar Bhat & Ors., (2024) 9 SCC 398 as follows:
16. The controversy in these appeals is in a very narrow compass. No doubt, the complainants succeeded before the District Forum, the State Commission as well as NCDRC. During the pendency of the revision preferred by the original opposite party before NCDRC, the original opposite party died. His legal representatives i.e. his widow and two sons were brought on record. In fact, the complainants also had preferred their revision petition. NCDRC reasoned that the legal representatives of the opposite party were liable both with regard to the monetary payments that the original opposite party was directed to pay and also liable to comply with the other directions issued by the District Forum as modified by the State Commission and thereafter modified by NCDRC.
The contentions of the legal heirs of the Developer were noted in paragraph 17 and 18 as follows:
17. The learned counsel for the appellants submitted that the appellants as the legal representatives of the deceased opposite party are willing to make the payment as directed. But as far as the other set of the directions are concerned, it is not permissible for them to comply with them inasmuch as the said directions were issued by the District Forum as well as the State Commission personally against the opposite party who is since deceased.
Those directions are with regard to construction of compound wall so as to give separate access in terms of Schedule II of the development agreement; to obtain and hand over completion certificate to the respondent complainants; to execute the conveyance deed and to give electricity connection and such other directions.
18. The learned counsel for the petitioner contended that the aforesaid directions cannot now be complied with by the legal representatives of the deceased original opposite party inasmuch as those were personal NC/FA/424/2010 & 427/2010 Page | 16 directions as issued against the original opposite party. He contended that the original opposite party was having the proprietorship concern and therefore, the estate of the deceased proprietor would be liable insofar as the satisfaction of the compensatory payments only, but not for complying with the other directions issued which cannot now fall on his legal representatives to comply. It was contended that the original opposite party had skills and expertise to comply with the said directions as a developer but on his demise, his legal representatives, namely, his widow and two sons, cannot be compelled to carry out those directions as they neither possess the necessary skills nor expertise and further, they are not continuing the proprietorship concern of the original opposite party which has now been wound up on the demise of the sole proprietor. Therefore, learned counsel for the appellant opposite party contended that the various clauses of the development agreement which had placed duties and obligations on the original opposite party, who is since deceased, cannot now be enforced against and performed by his legal representatives or heirs. The complainants / owners raised their contentions as recorded in paragraph 19 as follows:
19. Per contra, the learned counsel for the respondent complainants submitted that no doubt the legal representatives of the original opposite party would comply with the directions for payments from out of the estate of the deceased opposite party but the complainants would be left high and dry insofar as the other obligations which had to be discharged by the opposite party and therefore, Ncdrc was justified in directing the legal representatives of the deceased opposite party to take steps for also complying with those directions.
The Apex Court, while proceeding to answer the question, examined the law on the subject and went to the root of the jurisprudence of the legal proposition and after quoting Salmond on jurisprudence, observed in paragraphs 21 to 27 as follows:
21. The question is : what would happen to the obligations imposed personally on the original opposite party on his demise? No doubt, the estate of the original opposite party would be liable for any monetary decree or directions for payment issued in the present case. However, what about the obligations which had to be performed under the development agreement such as certain construction to be made and certain approvals, etc. to be obtained by him on completion of the construction. Can the legal representatives be liable to comply with those obligations under the development agreement on the demise of the original opposite party?
NC/FA/424/2010 & 427/2010 Page | 17
22. In this regard, it is necessary to discuss the jurisprudential status of a proprietary concern. In a report of the Insolvency Law Committee submitted in February 2020, the definition of ―proprietorship firms‖ reads as under:
―2. Definition of ―Proprietorship Firms‖ *** 2.2. Proprietorship firms are businesses that are owned, managed and controlled by one person. They are the most common form of businesses in India and are based in unlimited liability of the owner. Legally, a proprietorship is not a separate legal entity and is merely the name under which a proprietor carries on business. [Raghu Lakshminarayanan v. Fine Tubes [Raghu Lakshminarayanan v. Fine Tubes, (2007) 5 SCC 103 : (2007) 2 SCC (Cri) 455] .] Due to this, proprietorships are usually not defined in statutes. Though some statutes define proprietorships, such definition is limited to the context of the statute. For example, Section 2(haa) of the Chartered Accountants Act, 1949 defined a ―sole proprietorship‖ as ―an individual who engages himself in practice of accountancy or engages in services...‖. Notably, ―proprietorship firms‖ have also not been statutorily defined in many other jurisdictions.‖ (emphasis in original) [Source : Report of the Insolvency Law Committee, pp. 117-118, Government of India (Ministry of Corporate Affairs, February, 2020).]
23. According to Salmond, there are five important characteristics of a legal right:
1. It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled, or the person of inherence.
2. It avails against a person, upon whom lies the correlative duty. He may be distinguished as the person bound, or as the subject of duty, or as the person of incidence.
3. It obliges the person bound to an act or omission in favour of the person entitled. This may be termed the content of the right.
4. The act or omission relates to something (in the widest sense of that word), which may be termed the object or subject-matter of the right.
5. Every legal right has a title, that is to say, certain facts or events by reason of which the right has become vested in its owner.
[Source : P.J. Fitzgerald, Salmond on Jurisprudence, p. 221 (Universal Law Publishing Co. Pvt. Ltd., 12th Edn., 1966)]
24. Salmond also believed that no right can exist without a corresponding duty. Every right or duty involves a bond of legal obligation by which two or more persons are bound together. Thus, there can be no duty unless there is someone to whom it is due; there can be no right unless there is someone from whom it is claimed; and there can be no wrong unless there is NC/FA/424/2010 & 427/2010 Page | 18 someone who is wronged, that is to say, someone whose right has been violated. This is also called as vinculum juris which means ―a bond of the law‖. It is a tie that legally binds one person to another. [Source : P.J. Fitzgerald, Salmond on Jurisprudence, p. 220 (Universal Law Publishing Co. Pvt. Ltd., 12th Edn., 1966)].
25. Salmond's classification of proprietary and personal rights are encapsulated as under:
Proprietary Rights Personal Rights
1. Proprietary rights means a person's right in relation Personal rights are rights arising
to his own property. Proprietary rights have some out of any contractual obligation
economic or monetary value. or rights that relate to status.
2. Proprietary rights are valuable. Personal rights are not valuable
in monetary terms.
3. Proprietary rights are not residual in character. Personal rights are the residuary
rights which remain after
proprietary rights have been
subtracted.
4. Proprietary rights are transferable. Personal rights are not
transferable.
5. Proprietary rights are the elements of wealth for Personal rights are merely
man. elements of his well-being.
6. Proprietary rights possess not merely judicial but Personal rights possess merely
also economic importance. judicial importance.
[Source : P.J. Fitzgerald, Salmond on Jurisprudence, p. 238 (Universal Law Publishing Co. Pvt. Ltd., 12th Edn., 1966)].
26. Salmond's classification of inheritable and uninheritable rights is stated as under:
Inheritable Rights Uninheritable Rights
A right is inheritable if A right is uninheritable if it dies with the owner.
it survives the owner.
[Source : P.J. Fitzgerald, Salmond on Jurisprudence, pp. 415 & 442 (Universal Law Publishing Co. Pvt. Ltd., 12th Edn., 1966)].
27. On a reading of the above, it is clear, when it comes to personal rights (as opposed to a proprietary rights) are rights arising out of any contractual obligations or the rights that relate to status. Such personal rights are not transferable and also not inheritable. Correspondingly, Section 306 of the Succession Act, 1925 (for short ―the 1925 Act‖) applies the maxim ―actio personalis moritur cum persona‖ (a personal right of action dies with the NC/FA/424/2010 & 427/2010 Page | 19 person) which is limited to a certain class of cases and would apply when the right litigated is not heritable. By the same logic, a decree-holder cannot enforce the same against the legal representatives of a deceased judgment- debtor unless the same survives as against his legal representatives. The Apex Court then went on to discuss the provisions of the Succession Act, 1925, the provisions of Sections 37 and 40 of the Indian Contract Act, 1872 and then proceeded to hold in paragraphs 31 and 32 as follows:
31. Thus, a contract can be performed vicariously by the legal representatives of the promisor depending upon the subject-matter of the contract and the nature of performance that was stipulated thereto. But a contract involving exercise of individual's skills or expertise of the promisor or which depends upon his/her personal qualification or competency, the promisor has to perform the contract by himself and not by his/her representatives. A contract of service is also personal to the promisor. This is because when a person contracts with another to work or to perform service, it is on the basis of the individual's skills, competency or other qualifications of the promisor and in circumstances such as the death of the promisor he is discharged from the contract.
32. Correspondingly, duties or obligations which are personal in nature cannot be transmitted from a person who had to personally discharge those duties, on his demise, to his legal representatives. Just as a right is uninheritable and the right personal to him dies with the owner of the right, similarly, a duty cannot be transferred to the legal representatives of a deceased if the same is personal in nature.
The Apex Court also refers to the definition of a legal representative as contained in Section 2(11) of CPC, 1908 and went on to hold in paragraphs 34 to 36 as follows:
34. Further, Section 2(11) of the Code of Civil Procedure, 1908 (for short ―CPC‖) defines a ―legal representative‖ to mean a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Thus, the legal representatives of a deceased are liable only to the extent of the estate which they inherit.
35. In Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique [Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique, 1989 Supp (2) SCC 275] , it was observed that the expression ―legal representative‖ as defined in CPC is applicable to proceedings in a suit. It means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and NC/FA/424/2010 & 427/2010 Page | 20 where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide as it is not confined to legal heirs only, instead, it stipulates a person who may or may not be an heir, competent to inherit the property of the deceased or he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title, either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression ―legal representative‖. If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased.
36. The aforesaid judgment refers to representation of an estate of a deceased person which would devolve on his legal representatives and where the decree has to be executed vis-à-vis such an estate. In such a case, the heirs of the deceased judgment-debtor would be under a legal obligation to discharge their duties to satisfy the decree or an order from the estate of a deceased. But in the case of sole proprietorship, which is a common form of business in India, when a legal obligation arises under a contract which has to be discharged personally by the sole proprietor, who is since deceased, had entered into the agreement, such as, in the case of a development agreement in the instant case, can such obligations be imposed on his legal representatives or heirs who are not parties to the development agreement and where the obligations under such an agreement per se cannot be fulfilled inasmuch as they neither have the skills nor the expertise to do so and those obligations depend purely on the skills and expertise of the deceased sole proprietor? In other words, where the decree or order is not against the estate of a deceased sole proprietor but based on the skills and expertise of the sole proprietor, we are of the view that in the latter case, the obligations which had to be performed by the sole proprietor would come to an end on his demise and the same cannot be imposed on his legal heirs or representatives. We reiterate that such a position is distinguished from a position where the estate of the deceased sole proprietor would become liable to satisfy the decree in monetary terms.
This is because a proprietorship firm is not a separate legal entity as compared to the proprietor and his estate would become liable only to satisfy a decree or an order in monetary terms on his demise. The Apex Court then went on to conclude that on the facts of that case, the legal representatives of the Developer were not liable to discharge some of the obligations which had to be discharged by the deceased in his personal capacity and to that extent only the Order of the Commission was set aside.
NC/FA/424/2010 & 427/2010 Page | 21 Thus, the conclusion drawn was supported by the reasoning contained in paragraphs 39 to 43, which are extracted hereinunder:
39. Therefore, if the estate of the deceased becomes liable then the legal representatives who in law represent the estate of a deceased person or any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued is liable to the extent the estate has devolved. Hence, what is crucial is that the estate of a deceased person which becomes liable and the legal representatives must discharge their liability to a decree-holder or a person who has been granted an order to recover from the estate of the deceased which they would represent and not beyond it.
40. But in the case of a personal obligation imposed on a person under the contract and on the demise of such person, his estate does not become liable and therefore, the legal representatives who represent the estate of a deceased would obviously not be liable and cannot be directed to discharge the contractual obligations of the deceased.
41. In Ajmera Housing Corpn. v. Amrit M. Patel [Ajmera Housing Corpn. v. Amrit M. Patel, (1998) 6 SCC 500] , this Court observed that the defendants in the said case had no privity of contract with the plaintiff therein and the contract had been entered into on the basis of the skills and capacity of the party to perform under the contract and the rights and duties were also personal to the party who had to discharge the obligations under the contract. In the circumstances, it was observed that the legal representatives of the builder under the contract had neither the capacity nor the special skills to discharge the obligations of the deceased.
42. This position is also clear on a reading of Section 50CPC which states as under:
―50. Legal representative.--(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.‖
43. Thus, any decree which is relatable to the extent of the property of the deceased which has come to the hands of the legal representatives and has not been duly disposed of, the same would be liable for execution by a NC/FA/424/2010 & 427/2010 Page | 22 decree-holder so as to compel the legal representatives to satisfy the decree. In this context, even a decree for preventive injunction can also be executed against the legal representatives of the deceased judgment-debtor if such a decree is in relation to the property or runs with the property if there is a threat from such legal representatives.
20. A reference to the said legal principles has also been made in an order passed on 04.03.2024 in CC No. 263 of 2013, Master Aarav Sehgal (Minor through his legal Guardian) & Ors. vs. The Superintendent, Sir Ganga Ram Hospital & Ors.
21. With the aforesaid enunciations at hand, it is clear that the substitution has been allowed keeping in view the aforesaid legal principles, but it would be appropriate to point out that in a matter decided by this Commission on 24.05.2018, relating to the same subject matter, it appears that a Special Leave to Appeal (c) No. 33646-33647 of 2018 is pending before the Apex Court where on 13.01.2026, an order has been passed where the Apex Court has taken up the matter once again stating that it was during the pendency of the Revision Petition before the NCDRC that the doctor had died, and therefore the Apex Court, considering the issue involved that might have wide ramifications, has passed the following order:
1) In the facts, it is seen that a Consumer Complaint was filed for negligence of a Doctor which was allowed by the District Consumer Disputes Redressal Forum, though set aside by the State Consumer Disputes Redressal Commission.
However, during the pendency of Revision preferred by the family of the consumer before National Consumer Disputes Redressal Commission, the Doctor died. Subsequently, the complainant, i.e., the person against whom the negligence has been alleged, has also died.
2) The Consumer Protection Act, 1986 was in existence on the date of cause of action, and amended later, which is now replaced by new Act. However, in such circumstances, as per the provisions of the new Act, what would be the fate of NC/FA/424/2010 & 427/2010 Page | 23 the complaint may be looked into. It has to be addressed that for the negligence by a person, the estate of such person may be liable for compensation through legal heirs.
3) Considering the issue as involved, the case is having wide ramifications, we deem it appropriate to appoint Mr. Raghenth Basant, learned senior counsel and Mr. Varun Kapoor, learned counsel, to assist the Court as Amicus Curiae.
4) The relevant documents be supplied by the learned counsel for the petitioner to Mr. Raghenth Basant, Amicus Curiae, who may prepare a brief note and file the same on or 2 before the next date. SLP (C) Nos. 33646-33647/2018 etc.
5) List for further orders on 03rd February, 2026. The case will be taken up immediately after fresh/bail matters.
The Orders have been reserved on 03.02.2026 and are awaited.
22. Another issue which needs to be dealt is the submission advanced by the learned counsel for the hospital contending that no liability can be attributed to it.
23. The stand taken by the Appellant/Hospital that the choice of the hospital was that of the treating doctor and that the hospital had not engaged their services is to be gathered from the averments made in the Memo of Appeal FA/424/2010. Paragraphs-3A & B of the Memo are reproduced herein as under:
(a) On, 17.10.1996, the Respondent No.1, who was suffering from abdominal pain, was brought to the Appellant Hospital. An initial check-up was performed by the Respondent No.3 Doctor, who diagnosed that the Respondent No.1 was suffering from chronic bleeding in the abdominal portion, which was suspected to be caused by a small intestinal tumor. After tests (such as Endoscopy, C.T. Scan, Nuclear Scan and Biopsy), the Respondent No.3 advised that the Respondent No.1 should be operated and, therefore, he was admitted for the same.
(b) It is an admitted fact that the Respondent No.1 was treated by the Respondent No.3 on 24.10.1996, who is a General Surgeon, Laproscopist, Endoscopist and a visiting consultant in the Appellant Hospital.
24. It is also an admitted fact that the surgery was performed on 24.10.1996 by Dr. Hariharan who has been described as a visiting consultant in the NC/FA/424/2010 & 427/2010 Page | 24 Appellant Hospital. The patient remained in the hospital for ten days under the care of Dr. Hariharan and was then discharged.
25. It is also the case of the Doctor that he was contacted on telephone by the patient on 08.11.1996 informing that he was experiencing an abdominal pain, distension and loose stools, the doctor advised him to report to the hospital where he was admitted once again on 16.11.1996 and the X-Ray of the abdomen revealed distended coils of the upper part of the small intestine. The X-Ray further revealed the sticking of the intestinal loops indicative of partial/intermittent obstruction.
26. Consequently, a second operation was performed by Dr. Hariharan on 19.11.1996 and finding that the site of the previous operation was stuck to each other and could not be separated and straightened, therefore, an approximate 30 inches of the small intestine was resected and the ends were joined.
27. The patient complained of pain in the abdomen on 28.11.1996. When he was diagnosed with Colitis owing to a perforation of the large intestine.
28. It is this diagnosis which has given rise to this controversy as to whether there was any negligence in the performance of the laproscopic surgery on 24.10.1996 resulting in the puncturing of the large intestine or the perforation was on account of some spontaneous reason that emerged for specific medical reasons and was not on account of any invasive surgery. It is also on record that the patient, on his own volition, got himself discharged on 21.12.1996 and was treated in another hospital namely Shri Ramanna Surgical Clinic by Dr. N. Ranga Bashyam.
NC/FA/424/2010 & 427/2010 Page | 25
29. It is on 02.04.1998 that CC/76/1998 was filed by the patient which was amended in 2005 that proceeded before the SCDRC, Tamilnadu. After the filing of the Complaint, the patient died on 29.04.1998 and the Complaint was continued by the legal heir/wife of the patient. The same was contested by the Doctor and it was also stated that there was no master or servant relationship between the doctor and the hospital and therefore, there was no negligence on the part of the hospital so as to attribute any guilt of deficiency to it. The appellant hospital also took the same plea to that effect in its reply.
30. Learned counsel for the Hospital has taken a stand that the issue of relationship between the patient and the hospital was not even questioned through any cross-examination and in the absence of any such relationship or any control being exercised by the hospital over the acts performed by the doctor in treating the patient, there was no question of any liability on the hospital. The written version filed by the hospital before the State Commission that there was no responsibility of the hospital in para-5 to 7 of the written version are extracted herein under:
5. The First Opposite Party respectfully states that this Opposite Party is one of the leading and reputed hospitals in the country providing services to those, who seek medical facilities. A band of well qualified specialist consultants are provided consultation rooms for attending to the patients. The patients are taken care of and attended to by the specialist consultants, who are not employees of this Opposite party and who are paying charges to this Opposite party for providing them with consultation rooms and facilities. This Opposite party provides nursing service including all medical facilities such as laboratory service to those admitted. The consultants to pay for the consultation rooms used by them is the Hospital premises.
6. The third Opposite party respectfully states that its responsibility is confined to provision of facilities such as laboratory for carrying out various tests, sophisticated equipments for diagnosis of various diseases and other facilities such as x-rays, operation theatre etc. It is made a condition of admission into the Hospital of this Opposite party that, with regard to the treatment provided to the patients, the consultants alone would be responsible and the admission NC/FA/424/2010 & 427/2010 Page | 26 card and sheet containing the conditions are provided to each of the patients. The patient and her relatives are fully made aware of this position.
7. The first opposite party respectfully stats that Dr. Hariharan, the 2nd Opposite party herein is only a visiting consultant specialist. He pays for consultation room used by them in third Opposite party's hospital and there is no master-
servant relationship or principal-agent relationship between this Opposite party and the 2nd Opposite party. On the other hand the 2nd Opposite party pays for the facilities provided to them. Even a case sheet and other records pertaining to the patient are available only with the 2nd Opposite party and not with this Opposite party.
31. Learned counsel for the appellant has relied on a decision of this Commission in the case of 'T. Rama Rao Vs. Vijaya Hospital & Anr. FA/169/1997 decided on 29.11.2007' to urge that the hospital has no liability for treatment by an independent consultant doctor.
32. The appellant hospital has also questioned the applicability of the decisions relied on by the State Commission in the case of 'Savita Garg (Smt.) vs. Director, National Heart Institute (2004) 8 SCC 56' as well as the judgment of the Madras High Court reported in (2002) ACJ 954. In essence, the argument is that no vicarious liability can be imposed on the hospital in the absence of any relationship between the hospital and the consultant doctor who in fact pays for the facilities and infrastructure of the hospital and consequently, on the facts of the present case, there was neither any evidence of any direct liability or a vicarious liability of the hospital.
33. The State Commission, in the impugned order, has dealt with this issue in para-19 & 20 thereof as follows:
19. The 1st opposite party is the hospital, whose service was utilized by the 2nd opposite party, while treating the patient admittedly. The 1st opposite party would contend that there is no master servant relationship between themselves, and the 2nd opposite party, and therefore if the 2nd opposite party had committed any negligence, they cannot be held responsible vicariously, even taking the stand, that if at all only civil court can effectively adjudicate the dispute involved in this case. In view of the law settled, and in view of the fact, the service of the 1st opposite party was NC/FA/424/2010 & 427/2010 Page | 27 availed by the 2nd opposite party, and in view of the further fact, even for the payment of the 2nd opposite party, the amounts were collected by the 1st opposite party, we are of the considered opinion, that the 1st opposite party also should be held liable vicariously, and they cannot escape as if they have nothing to do with the service rendered by the 2nd prime opposite party. In fact, only on the reputation claimed by the 1st opposite party, the patient had been to the 1st opposite party hospital, and the 1st opposite party alone appears to have suggested or nominated the 2nd opposite party, as the consultant, and therefore, they cannot escape so easily, even under law.
20. The Hon'ble High Court of Madras, in 2002 ACJ 954, as well as the Apex Court, reported in (2004) 8 SUPREME COURT CASES 56, had an occasion to consider this kind of situation. In the first case, the Hon'ble High Court of Judicature at Madras, considering the contentions of the parties therein, that the doctor is an independent consultant, and not an employee of the hospital, there was no master and servant relationship between hospital and doctor, has come to the conclusion, that doctor's service have been utilized by the patient, at the instance of the hospital, and in this view, the hospital should be held vicariously liable for the negligence of the doctor, irrespective of the exact type of relationship, governing the employment of the doctor, in the hospital, which is in a way affirmed by the Apex Court in Savitha Garg (Smt.) Vs. Director, National Heart Institute, reported in (2004) 8 Supreme Court Cases 56, wherein it is said "distinction between contracts of service and contracts for service, cannot absolve the hospital, as it is responsible for the acts of its permanent staff, as well as staff whose service are temporarily requisitioned". It is the further dictum of the Apex Court, the hospitals, as the controlling authority, is responsible for the torts, committed by the doctor, or the medical negligence, under vicarious liability. Based upon the above decision, and considering the admitted fact, that the 2nd opposite party had attended the patient, viz. the complainant, in the 1st opposite party hospital, while performing surgery, the said hospital is vicariously liable for the medical negligence, if any committed by the 2nd opposite party.
34. Learned counsel for the hospital has urged that this fine distinction regarding the liability of a visiting consultant doctor has not been correctly appreciated by the State Commission in right perspective and therefore, insofar as the hospital is concerned, liability cannot be attributed for the negligence of the doctor on the facts of the present case.
35. The judgment of the Apex Court in the case of Savita Garg (supra) has referred to certain English decisions as well. In the case of Savita Garg (supra), the Complainant had only sued the hospital without impleading the treating doctor. This Commission had dismissed the complaint on 06.02.2003 in OP/121/1995 holding that the complaint suffered from non-joinder of NC/FA/424/2010 & 427/2010 Page | 28 necessary party. The Apex Court, after examining the facts and the procedure applicable to the Commission, held that the Commission has powers under Section 13(4), (5) & (6) of the Consumer Protection Act, 1986 to direct for production of material objects, reception of evidence and requisitioning of reports etc. It was further held that proceedings before the Commission are a judicial proceeding and would be deemed to be a Civil Court for the purposes of Section 195 Cr.P.C. and Chapter-26 of the Criminal Procedure Code. It was further held that some of the provisions of CPC have been made applicable even though all provisions of CPC have not been applied. Interpreting the rules of 1987 framed under the Consumer Protection Act, the Apex Court went on to hold that the complainant had not impleaded the treating doctor or nurses even though there was a direction of the Commission for bringing on record the necessary parties through an impleadment. However, the Apex Court went on to hold on the principles of Order I Rule 9 & Rule 10 that no suit should fail because of non-joinder of parties and the complaint could have been proceed against the persons who were parties to the proceedings. The complaint was therefore, held to be maintainable but at the same time, the Apex Court went onto discuss the status of the relationship between the doctor and the hospital in that case and came to the conclusion that the doctor had been provided by the hospital and after discussing all the English cases, held that even if the doctor was not impleaded, this plea of non-joinder cannot be taken by the hospital which had provided the services to the patient. The discussion is contained in para-10 to 16 of the said decision after referring to the English decisions of 1942, 1947 & NC/FA/424/2010 & 427/2010 Page | 29 1951. The Apex Court also took into consideration the observations made by the Apex Court in respect of the distinction between "contract of service" and the "contract for service" in the case of „Indian Medical Association vs. V.P. Shantha & Ors. (1995) 6 SCC 651'.
36. We have also had the occasion to consult certain authorities on the question of vicarious liability of hospitals that has been discussed by some celebrated authors on the Law of Torts and Medical Negligence. We may refer to the Butterworths publication "Vicarious Liability in the Law of Torts" by P.S. Atiyah (1967)". The learned author who was a Bar at Law at the Inner Temple and Fellow of New College, Oxford referred to the 1951 decision in the case of „Cassidy vs. Minister of Health [1951] 2 KB 343' and while discussing the control test in Chapter-5 of the said book, observed as under:
―So also in Cassidy v. Minister of Health, where it was held that a hospital authority is liable for the negligence of a doctor employed as a full-time member of the hospital staff, although there was some disagreement as to the basis of the hospital's liability, it was pointed out by SINGLETON, L.J., that some degree of control as to the incidental features of a doctor's work is retained by the hospital authorities, e.g., in relation to making rules as to seeing patients after an operation, or as to the passing on of information or complaints or as to what should be done in the absence of the doctor.‖
37. In chapter-8 of the said book, while discussing the illustrations of the distinction between the servants and independent contractors, on the same issue, observed as under:
―Secondly, there was, not surprisingly, the difficulty caused by the control test Jin its traditional form. How, it was thought, could a surgeon performing an operation, be treated as the servant of a hospital when it was evident that no one could tell him how to do it? And thirdly, there is no doubt that the case was influenced by extreme confusion between the question of personal liability and the question of vicarious liability. In modern times a clear line is drawn between a breach of duty by an employer personally owed by him to take reason-able care of persons within the area of foreseeable risk, and the responsibility of the employer for breach of duty by his employee. The Hillyer case, and indeed, many other cases of the same period where NC/FA/424/2010 & 427/2010 Page | 30 the relationship between the parties was of a contractual nature (but not strictly contractual because of the absence of consideration) is characterised by an apparent failure to grasp this fundamental distinction. Throughout the judgments in the Hillyer case the sole question with which the court thought it was dealing was: What is the duty of the hospital authorities? There is virtually no discussion of the question: Is the hospital vicariously liable for a breach of duty owed by the surgeon or the nurses? Strangely enough, as will be seen below, the courts, having virtually disposed of the authority of the Hillyer case, largely on the ground that a hospital is vicariously liable for its staff, are now showing signs of reverting to the view that the liability of hospitals depends on their own breaches of duty, but of course, are differing from the judges in Hillyer by pitching the duty at a much higher level.
One curious by-product of the Hillyer case was the suggestion that a nurse, while assisting at an operation, ceases to be the servant of the hospital authority and becomes the servant of the surgeon. But in the only English case where it was sought to make a surgeon vicariously liable for negligence of nurses who were clearly in the general employment of the hospital, this argument was 13 and dicta nurse who simply executes an order given by the surgeon, and does so with all due care, may not be guilty of negligence for the simple reason that in the ordinary case her duty to take reasonable care requires her, above all to carry out the surgeon's orders with unquestioning obedience.
The main ground of decision in the Hillyer case, although followed in one or two cases at first instance, was decisively rejected by the Court of Appeal in Gold v. Essex County Council where a hospital authority was held liable for the negligence of a radiographer. And in later cases it has been made clear that there is no difference in principle between the liability of a hospital for professional staff and the liability of any other employer for his servants. All difficulties arising from the traditional control test have been swept away and, so far as ordinary vicarious liability is concerned, the sole question is whether the person in question-doctor, nurse, anaesthetist, radiographer, surgeon, or anyone else is a servant on ordinary principles.
An important point in relation to the liability of hospitals is, however, still unresolved, and on the answer to this question will depend the liability of a hospital for a consultant¹ who is not a regular member of the hospital staff, and who might, therefore on ordinary principles, be considered an independent contractor. This is whether a hospital authority is itself under a non-delegable duty to see that reasonable care is taken in the treatment of patients. This is dealt with together with other cases of non-delegable duties later.‖
38. As referred to in the concluding line, the non-delegable duties was discussed by him in chapter-31 of the book where, under the heading of „Hospitals‟, while discussing contractual and consensual duties, the learned author observed as under:
―It has already been seen that there is today no difficulty in holding hospital authorities liable for their medical and nursing staff on ordinary principles of vicarious liability. And, what is more, there has been a tendency to apply the criteria of a contract of service liberally in the recent cases, so that even part-time members of NC/FA/424/2010 & 427/2010 Page | 31 the hospital staff have been treated as servants. But the question may arise whether a hospital authority can be held liable for the negligence of someone who, on any principle, must be treated as an independent contractor and not a servant, e.g., a surgeon not normally employed by the hospital at all, but engaged to perform a particular operation. If the relationship between patient and hospital were contractual, there is little doubt that there would be such liability, for on ordinary contractual principles, it could be said that the hospital is itself under a duty to see that due care is taken in treating the patients, either by its servants or by any other person to whom it entrusts the task of treating him. For although it has been suggested above that professional people rendering professional services are not normally liable even contractually for the negligence of independent contractors, this is not necessarily true of organisations such as hospital authorities rendering professional services.
If then, this would be the position were the duty a contractual one, is there any reason why it should not also be so where the duty is not contractual, as of course is the case with all National Health Service hospitals? The courts have been at pains in all the recent cases to stress that it can make no difference whether a patient pays for the treatment he receives, or whether he is treated gratuitously, and it would seem to follow from this that a hospital authority would be liable for the negligence of any person to whom it delegates of treating its patients. Although there is no clear decision on the point, the delegates the task judgments of LORD GREENE, M.R., in Gold v. Essex County Council and of LORD DENNING in Cassidy v. Minister of Health and in Roe v. Minister of Health point very clearly in this direction. In Scotland the same result seems to have been arrived at by the whole court in Macdonald v. Board of Management of Glasgow Western Hospitals although they seem to have been influenced more by the construction of the statute establishing the National Health Service, than by the considerations suggested above.‖
39. What comes out from a reading of the aforesaid authority is that a Consultant being not a regular member of the hospital staff, can be considered as an independent contractor and therefore, it was discussed by the author as to whether a hospital can be held liable for the negligence of someone who on any principle, must be treated as an independent contractor and not a servant, being not employed by the hospital at all but engaged to perform a particular operation.
40. The question therefore, is as to whether the argument raised on behalf of the hospital that Dr. Hariharan was only a visiting consultant can, by his act, also pass on any vicarious liability on the hospital as well.
NC/FA/424/2010 & 427/2010 Page | 32
41. For this, we have further perused another celebrated authority on Medical Negligence, Chapter-9 of "Medical Negligence" by Michael A. Jones (1991/Revised 4th Edition 2008), who has authored the said book as a Professor of Common Law in the University of Liverpool and a Solicitor of the Supreme Court of the United Kingdom. The learned author has also discussed the previous English decisions as noted by "Atiyah" in his work quoted above. However, a further research seems to have been carried forward by Michael Jones, in his book and theoretically he has examined the liability of hospitals and contribution under chapter-9 of his book that is referable to two broad grounds. The learned author states as under:
―In theory there are two grounds upon which a hospital authority may be held responsible for injury to patients. The first, and by far the most common, is by virtue of an employer's vicarious liability for the torts of an employee committed during the course of employment. Although in the past hospital authorities had an effective immunity from liability for the negligence of professional staff, for over fifty years now hospitals have been in the same position as other employers with respect to vicarious liability. The only lingering uncertainty concerns precisely which staff are considered to be employees.
The second, and in some respects more speculative, ground is the concept of direct liability, by which a hospital is held liable not for the tort of an employee but for breach of its own duty owed directly to the patient. This may be the result of some organisational error, where, for example, there is an inadequate system for co- ordinating the work of staff which has put patients at risk. Alternatively, it may be that a hospital owes a primary, non-delegable duty to patients. Breach of such a duty renders the hospital liable to the patient whether it is occasioned by the conduct of an employee or of someone who is not an employee, such as an independent contractor. Thus, there can be some overlap between vicarious liability and a non-delegable duty. These two forms of liability are conceptually quite distinct, though in reality the purpose of imposing a non-delegable duty is simply to establish the responsibility of an "employer" for the negligence of independent contractors.
This chapter considers both the vicarious liability of a hospital authority and its potential direct liability to patients and others. It then discusses the rules on contribution between tortfeasors, which though not frequently an issue in medical negligence litigation, can be relevant in this context. The chapter concludes with a brief section on NHS Indemnity, the practical consequences of which can occasionally render the precise legal position of a defendant irrelevant.‖ NC/FA/424/2010 & 427/2010 Page | 33
42. In the instant case, the State Commission has not recorded any finding of a direct liability as indicated by the learned author hereinabove but has relied on the decision of Savita Garg (supra) to attribute vicarious liability on the hospital and has accordingly, decreed the complaint.
43. Learned counsel for the appellant has vehemently urged that the State Commission has missed out the distinction regarding the services of a visiting Consultant being not in any contractual relationship with the hospital for any contract of services as the choice of the doctor was totally of the Complainant and it was the doctor‟s advice to admit the patient in the appellant‟s hospital. The appellant had therefore, neither offered any services to the complainant or the doctor concerned nor any of the services of the hospital management or staff was criticized or questioned by the complainant for fixing any liability on the hospital.
44. Learned counsel submits that it has been categorically stated in para-3 of the complaint by the complainant that it was "as per his advice, that the complainant was operated". This is clearly visible from the allegations made in the complaint which also states that it was the doctor who did not attend to the patient appropriately and did not give proper post-operative care as a result whereof, the complainant got himself discharged and was admitted to another hospital. Learned counsel for the hospital submits that this in no way amounts to any negligence on the part of the hospital and even otherwise, the focus of the complaint is clearly on the fact of the performance of surgery and the care by the doctor with no allegation of any professional negligence by the hospital.
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45. It is further pointed out from the averments contained in para-7 of the complaint that the hospital had been approached with the plea that he would be taken care of in a proper manner on the assurance of doctor who was a gastro Consultant attached to the hospital. Apart from these allegations, the rest of the allegations are only with regard to the actual performance of surgery and the alleged absence of care by the doctor. The contention is that there being no specific allegation or evidence, regarding lack of due care on the hospital, the State Commission could not have automatically saddled the hospital with any liability.
46. We may once again refer to the research and observations of Michael Jones in the above captioned authored book where, after referring to all the previous English decisions that have been indicated in the judgment of the Supreme Court in the case of Savita Garg (supra) that further analysed another English decision in the case of 'Roe vs. Minister of Health [1954] 2 QB 66' and observed, that the cumulative effect of the cases were, that a hospital authority would be vicariously liable for the negligence of a full time or part time employees.
47. The issue of consultants was dealt with in relation to the National Health Services in United Kingdom and it was observed that the term „Consultant‟ was considered by Lord Denning in another decision in the case of 'Razzel vs. Snowball [1954] 1 WLR 1382' that goes to hold that the term „consultant‟ did not denote a particular relationship between a doctor and a hospital, rather it was simply a title denoting his place in the hierarchy of the hospital staff. It was further observed by Lord Denning that a consultant is senior member of NC/FA/424/2010 & 427/2010 Page | 35 the staff but nevertheless does as much as a member of the staff as the House Surgeon. The said view of Lord Denning has been stated by the author to have not been tested any further as the National Health Services also do not seem to have questioned this status. The National Health Services hospital authorities have virtually left the issue of applicability unquestioned, accepting vicarious liability of consultants and agency staff. In order to better appreciate the ratio and reasoning of the learned author, we may reproduce para-9-002 to 9-009 of the said authority as herein under:
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48. The author then goes on to discuss in subsequent paragraphs that general practitioners are not employees but a decision has been referred to therein to indicate that there would be a vicarious liability of the hospital even though he has cast a doubt on the same.
49. We have perused the averments in the complaint, the averments made in the grounds of appeal and we find that the status of Dr. Hariharan as a visiting consultant has not been disputed. Even though the complainant has not come forward about the hospital having invited him to take the services of its staff and doctors, yet the hospital offered its services for the surgery by Dr. Hariharan. It is also indicated that Dr. Hariharan was bearing the expenses of the services provided by the hospital including the operation theatre and the NC/FA/424/2010 & 427/2010 Page | 41 nursing facilities etc. In our considered opinion, even though the State Commission has not discussed these facts and the legal position in detail as discussed hereinabove, yet we find that the services of the hospital and the doctor cumulatively and in a combined form, led to the admission of the patient for the performance of the operation/surgery on the complainant and as quoted by the learned author, under the heading „non-delegable duty‟ in para 9-031, the services were an integrated procedure, by referring to the dissenting view of Judge P. Kirby that has been quoted by the author as follows:
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50. Having considered the entire material, we find it impermissible on the facts of the present case to distinguish and segregate the medical services NC/FA/424/2010 & 427/2010 Page | 44 offered to the complainant by the hospital and the doctor, in order to fix any distinct liabilities of medical negligence which, in the present case, is clearly interconnected with the treatment given by the doctor combined with the services of the hospital.
51. In view of what has been indicated above, the stand taken by the hospital of absolving itself of any vicarious liability cannot be accepted when the treatment was undertaken on two occasions with the surgeries performed by Dr. Hariharan and stay in the same hospital for a considerable time. We would therefore, in essence, for the reasons stated above, agree that the conclusion drawn by the State Commission, that the hospital is also vicariously liable is correct and to that extent, the argument raised on behalf of the learned counsel for the hospital is unacceptable.
52. Coming to the merits regarding medical negligence, the patient was admitted on 17.10.1996 and laparoscopy was performed by Dr. Hariharan on 24.10.1996 for the removal of the tumour which was located somewhere towards the small intestine. The discharge summary is dated 03.11.1996. The said document has a vital impact on the arguments advanced regarding the symptoms, the diagnosis and the treatment including the history and the past history of the patient. The same is extracted hereinunder:
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53. A perusal of the said discharge summary indicates that the patient had a past history of Anaemia Hookworms and had also been treated at JIPMER for External Piles. Thus, it can be seen that the patient had intestinal problems and was treated for the same including external piles. The symptoms and the diagnosis indicate that the patient was admitted after a large mass lesion was observed at the left iliac fossa (fossa = depression or furrow). The scan report indicated active bleeding from the small intestine and pooling in the left iliac cavity level slowly moving towards the large intestine. This was diagnosed as chronic GI bleeding (tumour abdomen). To remove the said tumour, a NC/FA/424/2010 & 427/2010 Page | 49 diagnostic laparoscopy with mini-laparotomy ileal (Illeum = lower half of the small intestine) resection was carried out. The tumour of about 10 cm in the mesemteric border and stretching the bowel wall was excised and the continuity of the intestine was restored by end to end anastomosis. The investigations, the endoscopy, the CT scan, the nuclear scan, the X-ray and the operation notes do not indicate any perforation or any other problem of the said sort. The patient was discharged on 03.11.1996 with a note of general condition "fair on discharge". This was followed by an advice to report for review by the doctor after one month with prior appointment.
54. After the discharge, it is stated that the patient telephonically made some complaint on 08.11.1996 about pain and loose stools coupled with vomiting. The patient was advised to immediately get himself admitted to the hospital, but instead he arrived after a week on 16.11.1996 when he was again admitted.
55. The contention of the learned counsel for the doctor is that the patient did not arrive immediately on the complaint made on 08.11.1996 and himself delayed the matter till 16.11.1996.
56. Thus, the complications came to be complained of after more than two weeks of the surgery.
57. On this complaint, the patient was admitted to the hospital once again under the same doctor on 16.11.1996. On 19.11.1996 an Enterectomy was performed through Exploratory Laparotomy under general anaesthesia by Dr. Hariharan. The Operative Record of 19.11.1996 is extracted hereinunder:
NC/FA/424/2010 & 427/2010 Page | 50 Abd opened by a mid midline incision. The dilated jejunal of upper ileal loops were delivered alongside about 30" bu bowel jus distal to the previous rescation site had become densely adherent to each other in a ladder fashion. There were no other adhesions to the antr. Abd wall or to any other ...........
The adhesions between the small bowel loops were very dense without any plane of eleavage. Trial separation resulted only in tearing of the sensorial muscular layers. So it was thought that the whole adhesive mass be resected. After dividing and ligating the misentric vessels the mass comparing the adhesent was resected and end to end anasiamosis was done. 1.5 to 2.6 livesg RL was instilled into the peritoneal cavity. 100 me g memogye alisian placed in the cavity.
(1) Nilaval except sips of water (2) IV fluids 150ml/hr 5% GNS/G D (3) Inj. G.M. Soms IV ....
(4) ... Memopogye 0.5G IV .....
Thus, the Enterectomy of removal of 30 inches of the small intestine was done on 19.11.1996.
58. This was followed by the treatment of the sigmoid perforation on 28.11.1996 and the operative record thereof is extracted hereinunder:
Laparotomy thru the old mid abd incision. Lor g free gas escaped from peritoneal cavity about 1.5 litres of turbid fluid was evacuated, fluid nor bile srained. The small bowel loops were delivered and examined. The bowel loops were dilated but .......... . The previous anastamonic site in the small bowel was examined. It was intact. It was checked for leak but the anasamosio was air tight. There were no adhesions around the bowel loops. Lot of peritoneal liquidation were present which were gently washed with plenty of warm saline. The cause of peritoneal was found to be a perforation in the summit of sigmoid colon about 6 mm in die, the whole of sigmoid and descending colon appeared to be inflamed. The rest of the colon was examined in detail; but there were no other perforations were seen. In view of the colitis the perforation was exteriorised through a separate incision in the R/F at a place nearest to the perforation. As the sigmoid mesocolon was very short, the loop whole of the loop emphasising the sigmoid could not be brought out of the wound.
NC/FA/424/2010 & 427/2010 Page | 51 So the part containing the perforation was exteriorized and the peritoneum and skin switched around it.
A foley catheter was placed in the colon through the perf and brought out. Pt's condition stable after surgery Nil oral IV fluids - 100 ml/hr 5% GNS/G Dev..
1 Bottle and Inj Timiba
(500 ml) OD
Inj. Pathioline 50 mg IM Tds
Inj. Panagan 25mg IM - BD/TDS
Inj. Taxim 25 IV Tds Today.
(Finscrouse at 8.30am
Next due at 4am)
Inj. MUI 1 amp in one bottle.
59. A perforation was found in the sigmoid colon that was exteriorised through a separate incision and stitched with appropriate antibiotics on 28.11.1996 on a symptom of colitis. Peritoneal toileting was done thereafter and two perforations were also found in the descending colon below the splenic.
60. The next procedure adopted was of peritoneal toileting on 13.12.1996 which is extracted hereinunder:
"The abdomen was opened by this the old mid umbilical laparotomy. Dilated small bowel loops with pus and exudate in between were delivered. There was pus in the pelvis, Rt panocolic gutter foul smelling. All the pus was evacuated flushed out and peritoneal cavity was washed out. Foul smelling .... In the Lt para colic father was also washed out and slanite and warm saline was .................... This is a catheter introduced into Lt parocolic garther. The intestinal anastimonic site was inspected and found to be intact. A search was made for other possible perforation(s) in the colon or small bowel none could be made out. A catheter was introduced into the sigmoid cocostomy and colon washed out. No leakage of this into the peritoneal cavity. This is the NC/FA/424/2010 & 427/2010 Page | 52 descending colon was detected though the appeared to be still someone colitis of this segment metrogyl was instilled into the peritoneal cavity. The laparotomy was left open and dressings applied.
IV fluids. Blood 1 Bot
Plasma 1 Bot
Amino enc- 1 Bot
5% GNS - 1 Bot
5% GDw - 1 Bot
Till 8AM - 13.12.96.
Inj. MUI 1 amp
Nil oral except sips of water
Ng table emneated to bottle
Deep breathing .......
Tab. Nesyle 0.25 mg oral
Inj. Keprol 1 amp. I M for pain
Lanieser 1 tab oral
Tr. To ward after 4AM
61. This was followed by the same procedure on 14.12.1996 and the operative record thereof is extracted hereinunder:
Dressings removed.
Colosomy bag removed. A small quantity of merian dark brown, semisolid in the bag Small Bowel loops delivered ont side.
Distension less than on 13.12.96.
Only moderate amount of pus in the pelvis and Lt para colic gather. No pus between the loops of bowel. Bowel loops more healthy than on 13.12.96. No perforations cavity washed out with 3 litres of and warm saline. Metrogye ingrilled into the peritoneal cavity.
Dressings and colotromy bag applied.
In. Augmentin 625 mg IV. Tds Bactrion DA 1 BD - oral (to be forwarded and administered) 1 Bottle of fresh blood 1 Bot. Iso E 1 Bot Amino core 1 Bot Plasma NC/FA/424/2010 & 427/2010 Page | 53 1 Bot 10% Dent nose 1 Bot Iso M.
62. The third round of peritoneal toileting was carried out on 16.12.1996 and the operative record is reproduced hereinunder:
Dressings removed and peritoneal cavity toiletted with warm saline, and a small quantity of pus was flushed out. The pelvic abscess Cavity had closed. The sigmoid colon looks healthier and small bowel distension less. ( gas and faecal matter in cocosmy cos) Metrogye was ingrilled and wound dressed.
To & Continue TPM Stop antibiotics from 17-12-96.
Blood 1 Bot Plasma/amino cage/pool MV/ Ij Leprol 1 amp Im SOS for pain Asthalin puff for cough
63. This was followed by the fourth round of the peritoneal toileting on 18.12.1996, which is extracted hereinunder:
The peritoneal cavity was washed out with warm saline. There was only a small quantity of purulent matter in the Lt para colic gutter. The infected area has been aestricted to the central abdominal and left para colic area. The intestine appears to be perismalsing through sluggishly Skin was approximately with loose silk and dressings applied. Bag applied to colosemy.
TPN to be continued.
Ryles tube Aspiration n- 300ml
64. Another cleaning process was carried out with a plan to do a further procedure on 21.12.1996. The operative notes of 20.12.1996 are extracted hereinunder:
NC/FA/424/2010 & 427/2010 Page | 54 Skin sutures were divided and abd re opened after washing out. The left colon was re-examined as p..... x scough was still present in the left paracolic gutter. They were washed out and two perforations were found in the descending colon below the splenic flexina. The area was washed out a Foly Cathetar placed near them and brought out to the above.
It was planned to do an ileosemy on 21.12.1996 (as blood available today) and attempt a sub-total/total colectomy.
The wound closed along with silk and dressed.
IV fluids - 100 ml/ltr 1 Bottle Plasma 1 Amino Core + 1 10% dext nose-1 1 5% GNS 1 5% GDW Inj. Clafonen 1 amp IV BD - 3pm and 8pm-8am
65. However, the patient got himself discharged on 21.12.1996 which has been recorded as against medical advice in the discharge summary which is extracted hereinunder:
PRESENT HISTORY:- This 43 yrs old Mr. Karibeeran who underwent excision of small bowel lelomyoma in Oct 96 admitted with the c/oabdominal pain followed by vomiting diarrhoea and abdominal distention for the past 1 week. No h/o fever.
Bladder habits are normal.
r.p. in JIPMER in Jan. 96 and treated as redificiency anemia/Hook worm infatation.
Underwent sclerotherapy as an O.P. for external piles in JIPMER. ..............
ABD - Tenderness more in the epigastric region. Bowel sounds + INVESTIGATIONS:- 16/11 Hb-11.2, TC-12000, DC-P76222E226/11 TC-10200, DC-P92L828/11 Hb-9.8, ТС-8500, DC-P76L24 Sugar-209, Urea-38, Creat-0.8, Na- 126, K-3.2, SGPT-37, Bili-0.7, Sr.Protein-5.7, Alb-3, Glob-2.7, Ca-9.4, S.P.-2.9, SAP-52, HCO3-23, C1-98, S.Cholesterol 70, Uric acid-5 3/11 Urea-40, Creat- 0.7, Na-133, K-3.2 1/12 Ascitic fluid C/... Streptocccus faecalis. Blood grouping and typing A+ve.
NC/FA/424/2010 & 427/2010 Page | 55 ...................Na-130, K-3.2 6/12 Alb 2.9, G1ob-2.5, T.Protein-5.4 9/12 Na-130, K-3.1 12/12 T.Protein - 5.8, Alb-2.8, Glob-3 12/12 Na-130, K-3.0, T.Protein-6, Alb-3.2, Glob-2.8, Mg-0.9 14/12 Urea-26, Creat-0.7, Na-128, K-3. 16/12 Hb- 13.6, Na-135, K-3.5, SGPT-40, Bili-0.7, Alb-3.4, Glob-3.2 18/12 Na-130, K-3.5 21/12 Platelet count-2,10,000, PTT-T-16, C-14, K-3.3 16/11 KUB showed markedly distended small bowel loops in the left upper quadrant.
Barium meals series. There was prolonged transit; period beyound the jejunum. Jejunal tips are markedly distended. Even at the end of 4 hrs. contrast is seen in the small bowelloops which are markedly distended. 22/11/96 Biopsy report Granulomatous intestine (small bowel) foreign body type most probably due to previous surgery.
26/11/96 MP-nil. Widal negative. Blood c/s - no growth. 28/11 Urine R/E normal: 7/12 Urine for pus cells Occ. pus cells. Candida albicans seen. Catheter tip for C/s candida albicans growth. 11/12 wound-pus C/s streptococci & klebsiella aerogenosa report enclosed. 12/12 CVP tip C/s-no growth 16/12 Urine R/E- normal. COURSE IN THE HOSPITAL - Patient got admitted with the c/o abdominal pain, distension, diarrhoea and vomiting. Suspected Bubacute intestinal obstruction and laparotomy was done on 19.11.96. Since the small bowel Loops were densely adhered to each other in a ladder fashion, the adhered mass was resected and end to end anastomosis was done. On the 8th-POD (28.11.96) he developed abdominal distention & bowel sounds were absent. Laparotomy was done. About 1.5 lit. of turbid peritoneal fluid was exacuvated from the peritoneal cavity. In view of colitis the perforation which was found in the sigmoid colon was exteriorised through a separate incision in the RIP & the peritoneum & skin stichted around. It was treated with appropriate antibiotics according to C/s report TPN was maintained during his postoperative period. His course was still further complicated with the effects of sigmoid perforation such as peritonitis, pelvic abscess and colitis. Peritoneal toileting was done regularly. On 20.12.96 laparotomy was done pus & slough was still present in the left paracolic/gutter. Two perforations were found in the descending colon below the splenic flenine. A Foleys catheter was placed near wound and brought out of the abdomen. It was planned to be done an ileostomy on 21.12.96 (as blood hot available today) and attempt a subtotal / total colectomy. The wound was closed with silk and dressed. Inj. Garamycin 800 mg IV 0.12 (5 days), Inj. Metrogyl 500 mg. IV 08 h (t days), Inj. Taxim 2 gm IV O 8 h (5 days), Inj. Tinibe .... Od (7 days), Inj. Fortum 1 gm NC/FA/424/2010 & 427/2010 Page | 56 IV O 87 h (8 days), Inj. Augmentin 1.2 gm IV 8 h (4 days), T. Bactrim DS 1 qid (4 days). INj. Clafaron 1 gm IV 12 (2 days), Inj. ...... 50 mg IV bd., Inj. Vit K.1.amp.... Asthalin puff 2 tds C.Prodop ....................... On 21.12.96 patient was discharged against medical advice.
66. The patient did not visit the Hospital thereafter and undertook treatment at Sri Ramana Surgical Clinic under Prof. Dr. Rangabashyam
67. This entire history of the procedures carried out on the patient do indicate that after the second surgery was performed on 19.11.1996 with the removal of 30 inches of the small intestine, the perforations in the sigmoid colon (large intestine) were noticed on symptoms of colitis and the procedure for the same was carried out for the first time on 28.11.1996. The subsequent procedures of peritoneal toileting on four occasions and then the procedure on 20.12.1996 have all been extracted hereinabove.
68. From a perusal of these facts what appears is when the initial laparoscopy surgery was carried out on 24.10.1996, the same was preceded by several radiological tests including colonoscopy, x-ray, endoscopy, CT scan and nuclear scan. These tests nowhere indicated any perforation or any symptoms related thereto in the large intestines that had been shown to be normal.
69. No further investigation was made about the status of the large intestine and it is only after the patient complained of abdominal pain and discomfort that he was readmitted on 16.11.1996 and Enterectomy was performed on 19.11.1996 that was for removing the ladder shaped adhesions of the small intestines that had stuck together. It is in order to remove the said abdominal NC/FA/424/2010 & 427/2010 Page | 57 obstruction that an approximate 30 inch length of the small intestine was removed.
70. The symptoms of the sigmoid perforation were noticed and were treated on 28.11.1996 and it is this process which continued till the discharge of the patient on 21.12.1996.
71. The question therefore now arises is as to whether there was any spontaneous perforation caused of an oval shaped as discovered due to natural causes or colitis or was it a result of a possible puncture injury that might have been caused when the initial surgery of laparoscopy was performed on 24.10.1996 as alleged by the complainant.
72. The defence taken by the doctor is that had the perforation been caused due to any puncture or any injury caused by the Trocar or the Veress needle during laproscopy, the injury or perforation would have manifested itself with any leakage of faecal matter causing fever and such other symptoms which do occur in such situations within 24 hours of such occurrence. Mr. Padhi contends that no such symptoms were noticed and the patient was discharged in a comfortable position as recorded in the discharge summary dated 03.11.1996. The contention is that no symptoms of any infection due to perforation had occurred and even otherwise the patient on complaining of the pain on 08.11.1996 had been asked to get himself admitted immediately, but he chose to delay the matter till 16.11.1996. It is therefore submitted that no negligence can be attributed about a perforation during laparoscopy on 24.10.1996 and there is no connect of the perforation with the NC/FA/424/2010 & 427/2010 Page | 58 said surgery which on symptoms of colitis was discovered and treated on 28.11.1996.
73. On the other hand, Mr. Sahu, learned counsel for the complainant has urged with the help of the literature cited by him that such symptoms regarding injuries can manifest even after 2, 3, 5 or 14 days of the initial procedure. He has again read out the article titled "Mechanism Management and Prevention of Laparoscopic Bowl Injuries" published by the American Society for Gastrointestinal Endoscopy, Volume 43, No. 6, 1996. The said article is reproduced hereinunder:
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74. He has further advanced his submission with the help of two figures of the abdomen explaining the location of the small intestine and the large intestine which are as follows:
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75. Learned counsel explains that given this history, background and the progress of treatment at the hospital by Dr. Hariharan, the principles of res-
ipsa loquitur are attracted for the reason that there was no such perforation located prior to the laparoscopic surgery dated 24.10.1996 reported in any of the radiological or pathological tests, nor was it noticed in the operational notes even on 19.11.1996 when the Enterectomy was performed. He therefore submits that the period during which the injury can manifest itself through symptoms is not necessarily within 24 hours as argued by Mr. Padhi, but can also be reflected after the injury has occurred extending to a span of even 14 days.
76. In the instant case, the laparoscopy was performed on 24.10.1996 and the period of 14 days or two weeks was over by the 06.11.1996. the complaint by the patient was made for the first time on 08.11.1996 and in spite of the advice to get himself immediately admitted, he did arrive after a prolonged period on 16.11.1996.
77. At this stage, it may be pointed out that the complainant had moved an application before the State Commission for an expert opinion. The State Commission did not grant the said permission. The evidence which was relied on by the complainant was a certificate from Dr. Rangabashyam with no details and the person issuing the said certificate did not file any affidavit nor was he examined. This deficit with regard to the absence of any expert opinion about the possibility of any perforation having occurred during laparoscopy on 24.10.1996 is lacking.
NC/FA/424/2010 & 427/2010 Page | 64
78. The State Commission has drawn an inference on the basis of probabilities and arrived at the conclusion that the probability of the perforation having occurred on 24.10.1996 cannot be ruled out as spontaneous perforation does not stand explained. The State Commission came to the conclusion that even though there is no expert opinion, the complainant had discharged the initial burden of allegation and it was for the doctor and the hospital to have disproved the same which they have been unable to do. What we find here is that the medical certification of Dr. Rangabashyam has not been proved by any affidavit or the examination of Dr. Rangabashyam and therefore it cannot be treated to be an indicator of any such inference about the puncture being caused during laparoscopy. The State Commission has drawn this inference on the principles of res ipsa loquitur without undertaking any exercise of obtaining an expert opinion. The State Commission seems to have no doubt in its mind of the perforation being caused during laparoscopy and it recorded its finding accordingly. We may point out towards the findings recorded by the State Commission in paragraph 21 which is extracted hereinunder:
21. In a case of medical negligence, generally we expect expert opinion/ evidence, to assist us, in order to reach a just conclusion, since we cannot claim expertise, since not connected with medical field. Therefore, in a case of medical negligence, it is for the complainant, who alleges medical negligence, deficiency in service, to prove initially, the charge of negligence, or deficiency in service. If the complainant, who had approached the Fora/ Commission, seeking relief, on the ground of negligence, and deficiency in service, discharged the initial burden, then it will be shifted to the opposite party to disprove, who attended the patient, since the doctor, had the exclusive knowledge, about the treatments given to the patient or, the complications NC/FA/424/2010 & 427/2010 Page | 65 involved in the case though they were diligent, and efficient beyond their control. The doctor, who had treated the patient, if explained the position, that the alleged negligence/ deficiency was not due to the treatments given by him, or it would have had happened, due to inadvertence, or should have happened due to admitted complications, considering the nature of disease and treatment, then in that case, if there was no recovery, even that cannot be taken as negligence, or deficiency, warranting, punishing the doctors, who did their service to their best, directing them to pay compensation, or expenses, as the case may be.
79. This is followed by the finding recorded in paragraph 23 which is extracted hereinunder:
23. From a layman, who has gone to a doctor for treatment, we cannot expect, expert evidence, since it is not possible for him also to adduce evidence, how the doctor-professional had committed negligence, leading to other complications or problem. In this context alone, as held by the Apex Court, in V. Kishan Rao Vs. Nikhil Super Speciality Hospital and another, in Civil Appeal No.2641 of 2010 that the principle res ispa loquitor, comes to the aid of the sufferer, proving prima-facie the negligence, and shifting the burden to the doctor, to prove otherwise, since what he did was, within his exclusive knowledge, which was in accordance with the standard protocol to be followed or applied, by a prudent doctor, while treating the patient. In this view, it is held in the above case, "In a case where negligence is evident, the principle of res ispa 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."
Further it is also observed in the above decision, that the evidence given by the expert, need not be accepted as such, and it is the duty of the expert to explain the technical issues, so that a common man can understand the problem, while assessing and deciding, whether the acts or omissions of the medical practitioner or the hospital, constitute negligence. Thus it is held further 'in most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many NC/FA/424/2010 & 427/2010 Page | 66 cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other."
80. The State Commission then went on to discuss the methods of laparoscopy, laparotomy and its complications including medical literature on Gastrointestinal Injuries that have been relied on by the complainant‟s counsel before us as well. Paragraphs 26 to 29 are extracted hereinunder:
26. In the text book of Complications of Laparoscopic Surgery, edited by Robert W.Bailey, M.D., under the heading Gastrointestinal Injuries it is said "Direct injury to the stomach or small or large intestine from laparoscopic instruments may occur during any laparoscopic procedure. These injuries often occur when the surgeon or assistant blindly inserts an instrument through one of the laparoscopic cannulas. The vast majority of laparoscopic instruments are either 5 or 10 mm in diameter and can easily puncture most visceral structures. This complication typically occurs as a result of an instrument being rapidly introduced outside of the limited view afforded by the video laparoscope".
27. In the text book of Surgical Laparoscopy, by C. Palanivelu, catalogues general complications, in the case of laparoscope, which includes bowel injuries also, not denied by the 2nd opposite party, as RW1. Under the heading bowel injury, in the said book, it is said Bowel injuries most frequently involve the small intestines, followed in frequency by the colon, duodenum and stomach. These injuries may be unrecognized at the time of surgery and present with a mortality of 5%. Direct injury can be caused by the Veress needle or by operating trocars. This is particularly significant in patients with abdominal wall hernias or prior surgery.
Bowel perforation requires immediate laparotomy for repair of the injury. It is further stated Carelessness and over confidence can cause trocar injury. Even with enough clinical experience, I had 3 trocar injuries all happened recently, after many thousands of cases.
28. At page 92 of the said text book, it is observed NC/FA/424/2010 & 427/2010 Page | 67 The recognition of complication of access during laparoscopic surgery requires a meticulous protocol and should be observed irrespective of the method that is used.
At the initial trocar insertion, the surgeon should ensure that all vital structures are viewed before the actual laparoscopic procedure. Once the primary trocar is inserted (blind insertion), prior to connection of the CO2 supply tube, the surgeon should introduce the laparoscope and visualize the areas likely to be injured. In addition to vascular injury, the surgeon should carefully examine the viscera or bowel for injury. The most significant posterior abdominal wall injuries and visceral or bowel injury can be detected with the careful initial inspection. It is further stated In case of repair of bowel or control of bleeding, a drain is placed that can give early warning of the presence of post operative complications. further indicating Laparoscopic bowel injuries are often undetected during surgery and are diagnosed in the postoperative period with evidence of peritonitis or perforation. High index of suspicion is appropriate when recovery from a laparoscopic operation appears to be unduly delayed or develop complications. Investigations (Ultrasound CT), and relaparoscopy are necessary".
29. On the above said principle, now the procedure followed by the 2nd opposite party has to be seen, with reference to pleadings, and documents.
81. In order to arrive at the stages of negligence, the State Commission has observed in paragraphs 30 and 31 as under:
30. The learned counsel for the complainant, has urged before us, while doing laparoscopy, it should have caused internal injury, which alone had caused abnormal distention, and pain, which was neglected to be seen by the 2nd opposite party, adopting proper care, which should be construed as first negligence. It is the further submission of the learned counsel, that when there was symptom and clinical examination revealed, bowel injury, then the abdomen should have been opened, instead of minor laparotomy, and in this case, though the 2nd opposite party opened the abdomen, for removing the adhesion, omitted and failed to explore the entire intestine, in order to locate the internal injury, that should have been caused, while doing laparoscopy, which NC/FA/424/2010 & 427/2010 Page | 68 according to him is the 2nd negligence. A further submission was made, that as admitted by the 2nd opposite party, that the walls of intestine struck together, and fearing to separate or split, which would cause tearing of the intestine, it was decided to remove that segment only, causing paralytic ileus, infection, since even at that time, the 2nd opposite party failed to explore for any infection in the intestine. According to him, the 2nd opposite party neglected to see, even the paralytic ileus surfaced, and that should have been caused obviously, by the injury in the bowel, due to laparascopic, which is in accordance with the text also, as quoted above.
31. On 24.11.96, when the 2nd opposite party opened the abdomen, he had noticed two perforations, that was also not completely cured, causing further perforation, and for all these continuous problem in the larger intestine, the laparoscopic injury must be the cause, that should be construed as medical negligence, and deficiency in service. In this context we have to see, how the 2nd opposite party diagnosed the problem, and what was the condition of the patient when he left the 2nd opposite party, to Sri Ramana Surgical Clinic.
82. Regarding the discharge summary dated 21.12.1996, the State Commission examined the handwritten discharge summary as well as the typed copy thereof and observed in paragraph 33 as follows:
33. During the 2nd stay in the 1st opposite party, treatment was given from 16.11.96 to 21.12.96, for which a hand written discharge summary was given (Ex.A3), for which we find from the opposite party records, a detailed discharge summary, at page 20 of the 2nd typeset, which does not tally. Therefore, the submission of the learned counsel for complainant, that the typed discharge summary, should have been prepared, to cover the lapses committed by the 2nd opposite part, stands to the reason to believe, because of the absence of those particulars in Ex.A3.
83. However, in order to conclude about the consequences of septicaemia and multiple organ failure in Sri Ramana Surgical Clinic, the State Commission in paragraphs 34 and 35 have applied the principles of res ipsa loquitur as follows:
NC/FA/424/2010 & 427/2010 Page | 69
34. After discharge from Vijaya Health Centre on 21.12.96, immediately the patient had been taken to Sri Ramana Surgical Clinic, and he was treated by Professor N. Rangabashyam, who had issued a certificate dt.28.1.97, which exposes the medical negligence, committed by the 2nd opposite party, and how he failed to treat the perforation, taking care at the initial stage itself, leading to septicemia and multiple organ failure. We quote the discharge summary of Prof. N.Rangabashyam, hereunder:
Mr. Karibeeran, 43 years, was admitted on 21.12.96, with septicemia and evidence of multiple organs failure as a result of fecal peritonitis. He was operated elsewhere. He had peritoneal toileting and diversion Colostomy. Subsequently he had repeated peritoneal toileting and intestinal T-Tube intubation was done to decompress the intestine.
Now he is stablilized - apyrexic and the colostomy is working well He requires another six months rest before fit to join duty.
35. Thus it is clearly established, when the patient had left the opposite parties, he had all kind of problems, and that things will speak itself, about the medical negligence, as ruled by the Apex Court, quoted supra, and principle if res ipsa loquitor, coming to the aid of the complainant. Therefore it is for the 1st and 2nd opposite party to explain, how the patient was suffering from septicemia, and how multiple organ failure resulted, due to fecal peritonitis, for which we find nil evidence, even from the mouth of the 2nd opposite party.
84. To further substantiate the aforesaid conclusion, the State Commission then recorded the findings on the basis of the statement of the doctor as discussed in paragraph 36 onwards of the impugned order. Paragraphs 36 to 39 are extracted hereinunder:
36. The 2nd opposite party, as RW1, would admit, that the pathological report, revealed that patient had bleeding in the intestine, which cannot be stopped clinically. He had explained the purpose of laparoscopic, and in this case, admitting that laparoscopy, did not really helped him, in locating the exact spot of tumor, whereas that was located only by nuclear scan. It is also admitted by RW1, as reported in the text, "it is possible that during laparoscopy procedure there could be damage caused to a portion of the area. By doing the minor laparotom,y I located the tumour and removed it." Though he would assert NC/FA/424/2010 & 427/2010 Page | 70 laparoscopy did not puncture the large intestine of the patient, and he was not the cause, he was unable to explain how large intestine had sustained injury. In view of the admitted complication, that injury is possible, while doing laparoscopic, in view of the admitted fact, that the patient had undergone laparoscopic, not yielding result, complicating the problem, we are constrained to infer that, because of the laparoscopic procedure adopted by the 2nd opposite party alone, the patient would have sustained bowel injury, leading to other admitted further complication, deteriorating the health of the patient, leading to by multi organ failure, for which we are of the opinion, the 2nd opposite party should be held responsible, since he failed as a prudent and skilled doctor, to find out the injury, atleast when he had opened the abdomen, at later stage. If he had bestowed some more attention, which was expected from this kind of highly qualified doctor, when the patient came to him second time the patient would have been saved, and problem would have been avoided, which he failed in our considered opinion, which can be seen even from his own testimony.
37. He admits, after second surgery, patient had usual complaint of pain, and because of the paralytic ileuse i.e., paralysis of the intestine, not causing propulsion of the intestine contents. It is also admitted by RW1, though he ruled out the mechanical obstruction during the surgery, the prolonged paralytic ileus was not cured, and infact no tube was inserted for drainage, which is adopted by some doctors, but RW1 would say it is not necessary, admitting collection of fluid, which was treated/ drained otherwise. On the other hand, he would say at that point of time, there was no infection, and therefore no drain was considered essential or necessary, which appears to be factually incorrect, even as per the medical records, maintained by them. The fluid collected was consequent to perforation and turbid fluid was, due to colonic perforation and peritoneal irritation thereof. If there was a drain, the problem would have solved in the initial stage, and atleast sepsis would have been avoided, since it is admitted by RW1, that the patient was suffering from abdominal sepsis, and not septicemia, which is also incorrect as per the certificate issued by Professor N.Rangabashyam, which we have quoted above. Admittedly, within 64 days or so, the 2nd opposite party had performed 6 surgeries, and none of the surgery had given the relief required. As rightly submitted by the learned counsel for complainant, the 2nd opposite party instead of going for laparatomy, immediately after the second complaint, had done minor laparotomy, even NC/FA/424/2010 & 427/2010 Page | 71 failing to provide catheter or drain pipe, which should have caused perforation, which occurred in the intestine, for which we feel empathetically based upon record, the 2nd opposite party should be held responsible.
38. The process of adhesion is admitted by the 2nd opposite party, as seen from written version, as well in the cross examination, as if that may be either due to healing process, or due to infection. If the adhesion was due to healing, it will be called as bread and butter adhesion, where the tissues can easily he separated. As admitted by RW1, in the case of the patient, that the walls of intestine struck together, and if any attempt had been made to split, that would cause tearing, thereby indicating this adhesion was only due to infection, and atleast at that stage, the 2nd opposite party ought to have explored the abdomen for an injury, which should be the source of infection and for cause of adhesion, which he failed, not explained, and in this view, taking this act of the 2nd opposite party also as medical negligence, he can be faulted.
39. The text reveals paralytic ileus can also be caused due to infection. In this case, even as per the first discharge certificate, the complainant had prolonged the period of paralytic ileus. Though the 2nd opposite party, treated the symptom, as admitted by him, by removing the mechanical obstruction, by introducing gastro griffin Para fuse method, but not treated the cause, or gave any medicine to revive the intestine, to restore the wave movement, thereby as rightly claimed, we should conclude that the second opposite party had not acted, as one expected from his rich experience, which also should show, that he has failed in giving proper standard treatment to the patient, who approached him with trust and confidence, that his ailment will be relieved.
85. However, while concluding in paragraph 44, the State Commission has recorded that the first surgery of 24.10.1996 for removing the tumour and then the second surgery on 19.11.1996 for releasing the adhesions may not be faulted, but the cause of perforation on the large intestine remains unexplained. The repeated interventions have also been construed to be a failure on the part of the doctor to take appropriate steps of treatment which has been construed as negligence as in view of the observations made in NC/FA/424/2010 & 427/2010 Page | 72 paragraph 45 of the impugned order, the State Commission was of the opinion that the conduct of the doctor fell below the standard as expected of a person possessed with a reasonable degree of skill for performing laparoscopy.
86. The appellant doctor in his appeal has taken a stand that the patient had progressed well till 22.11.1996 when an X-ray confirmed that there was no distension of the abdomen. It is however the case of the appellant that the patient was having some abdominal discomfort from 24.11.1996, but was passing gas and stool as is evident from nurse‟s records. He was treated with antibiotics, steam and medicated inhalations. In ground no. 4(xii) to (xvi), it has been averred as under:
(xii) The subsequent pain in the abdomen after the second surgery was diagnosed as Colitis with perforation of the large intestine. Colitis means inflammation of the large intestine commonly due to infection. This is a very rare occurrence after abdominal surgery. The diagnosis of this event in a patient, who has already undergone recent intestinal surgery is very difficult as the pain in the abdomen after any abdominal operation is the usual course of event. This unexpected ailment (perforation in the large bowel) was treated by emergency surgery, and this had nothing to do with previous ailments. It was ascertained at this time that the previously operated area of the small intestine was intact and that it was not the cause of peritoneal infection (infection inside the abdominal cavity) but due to perforation of large bowel.
(xiii) On 28.11.96 the patient's condition was not better, the abdominal distension increased by further 1 inch. The presence of perforation of intestine was suspected after doing a test called peritoneal tap with a needle.
The patient was explained the situation and was quickly prepared for an emergency surgery. It was thought that there might have been leakage from the site of intestinal union of previous surgery. The risk/benefits of the operation were explained to patient by the Appellant as well as by the anaesthetist doctor.
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(xiv) The abdomen was opened on 28.11.96 at 8.50 p.m. The patient had peritoneal infection and inflammation of part of the Colon (large intestine) and one spontaneous hole of about 5 mm in diameter in the part of the Colon called the sigmoid Colon situated in the left lower part of the abdomen. The rest of the Colon was examined in detail and no other perforations were made out. The left side of the Colon was inflamed. The site of the intestinal union of previous surgery was intact and healthy. The abdominal/peritoneal cavity was washed & cleaned. The segment of the large intestine containing the perforation was brought outside the abdomen through a separate opening made over the left lower part of the abdomen. This was done as no resection should be done when the Colon was unhealthy. The perforation was spontaneous due to severe infection of the colon and not due to technical or clinical error on the part of the doctor. The accumulated pus were removed the abdomen was cleaned which were life saving procedures. Unfortunately the patient developed further perforations due to continued Colitis, in spite of intensive treatment, which is definitely not due to carelessness, negligence or deficiency of service on the part of the doctor.
(xv) On 20.12.96 the abdominal cavity was inspected under short general anesthesia and two fresh perforations were present in the large intestine at a level above the previous perforation. In view of this development it was decided to divert the intestinal contents outside the abdomen directly and remove the perforated Colon. The small bowel could be reconnected to the large bowel remnant to establish normal physiology at a later date. During the process of treatment at this stage, the complainant's abdominal wound was deliberately not completely closed to allow the infected material to drain out easily and is the recommended procedure of many surgeons. Had the wound been fully closed without dealing with the perforations, the pus and faecal matter would have got accumulated and caused the patient's death. The operation for removal of the perforated larger Intestine was suggested to the patient, for which he was not willing and had himself discharged against medical advice. He was discharged in a fit condition, with wound dressings properly in place, abdominal wound approximated. The allegation made in the complaint that the patient was discharged with open abdomen and without giving any post operative care is false. The Complainant's condition had been recorded till he was actually discharged.
NC/FA/424/2010 & 427/2010 Page | 74 (xvi) The Appellant's certainly intended to have the infected portions of the large intestine removed. The Appellant wanted to institute a temporary external diversion of the faecal matter and when the infection was controlled to reconnect the intestines, to enable the complainant to lead a normal life later on, for which the patient was not willing.
87. It has also been urged that the State Commission merely relying on the letter / certificate of Dr. Rangabashyam could not have arrived at any such conclusion. Analysing the entire chronology of the treatment, it seems that there were no symptoms of the perforations recorded or noted either before the laparoscopic surgery on 24.10.1996 or even thereafter when the patient was discharged on 03.11.1996. The discussions and the contentions that have been raised that the symptoms on an injury of a puncture could manifest even after a week or 14 days can be possibly extended, but in the instant case, the patient was discharged in a fair condition without any such symptom on 03.11.1996 which is after 10 days of the surgery on 24.10.1996. The pain or discomfort was informed to the Doctor for the first time on 08.11.1996, but in spite of the advice of the Doctor to the patient to get himself admitted immediately, he stayed on for another week and arrived at the hospital as late as on 16.11.1996.
88. This period from 03.11.1996 till 16.11.1996 is almost two weeks and it is not the case of the complainant that Colitis could not have manifested with spontaneous perforation during this period when the patient did not turn up to the hospital or consulted the doctor during these two crucial weeks. The occurrence of any such perforation in between cannot be ruled out, and could have been possibly examined, had the State Commission taken care for NC/FA/424/2010 & 427/2010 Page | 75 appointing an expert to assess the possibility or the probability of the symptoms of the cause of the symptoms of perforation.
89. The material on record, including the statement of RW1 Doctor as recorded in para 36 of the impugned order extracted above, suggests that in the event a surgical performance results in any such injury, it can lead to such symptoms but at the same time perforations as indicated in the article produced by the complainant, the same can also be idiopathic, which means the cause whereof is unknown and according to the literature, it may happen in cases without any history of constipation.
90. The State Commission has drawn an inference on the basis of the circumstances of the case that there was no other possibility for the perforation to occur and then arrived at the conclusion of negligence occurring during the laparoscopic surgery. With the line of treatment that was administered to the patient after the Enterectomy was performed on 19.11.1996, the pain in the abdomen led to the diagnosis of the symptom of Colitis, which is an inflammation of the large intestine commonly due to infection. The appellant doctor has stated that this unexpected ailment of perforation was treated in emergency and according to him, it had got no connect with any previous ailment. The stand is that the operated area of the small intestine was intact and therefore that was not the cause of peritoneal infection. It is in this condition that the abdomen was opened on 28.11.1996 and a peritoneal infection and inflammation was observed in the large intestine (colon). It is then that the perforation of a 5mm diameter was identified in the left lower part and it is recorded in the notes dated 28.11.1996 NC/FA/424/2010 & 427/2010 Page | 76 that there were no other perforations. The appellant maintains that the perforation was spontaneous due to severe infection of the colon, as such the accumulated puss was removed and cleaned. The subsequent procedure of peritoneal toileting which was carried out on 13.12.1996 also records that there were no other perforations. A similar procedure as recorded on 14.12.1996, again records that the bond looked healthy and there were no other perforations. The dressing which took place with the peritoneal toileting on 16.12.1996 records that the sigmoid colon looked healthier and there was less distension. Accordingly, the wound was dressed. There was no other development when the toileting was again conducted on 18.12.1996. There was no other complication observed, yet on inspection on 20.12.1996, two fresh perforations were found in the large intestine as recorded on 20.12.1996. Thus, the emergence of two perforations was sighted for the first time on 20.12.1996. The said proceedings have already been extracted hereinabove. The process therefore had to be undertaken to divert the intestinal contents outside the abdomen and then remove the perforated colon. During this process, the wound was not completely closed, so as to allow the infected material to drain out. In order to remove the perforated part of the large intestine, the same was suggested to the patient, but he did not agree and got himself discharged against medical advice.
91. From the above, it is clear that the allegation that the patient was discharged with an open abdomen may not be attributable to the doctor, but between 20.11.1996 to 20.12.1996, the surgical procedures carried out do NC/FA/424/2010 & 427/2010 Page | 77 indicate that the large intestine (colon) of the patient had been infected with the perforations and the complications had commenced.
92. The only issue is as to whether such complications arose only on account of the symptoms of colitis as urged on behalf of the appellant doctor or was an outcome of the alleged surgical injuries that might have occurred during the laparoscopy on 24.10.1996.
93. It is clear from the operative records as discussed above that the first perforation was detected on 28.11.1996 and was attended to. A regular peritoneal toileting was being conducted according to protocols and as is evident the two fresh perforations were observed for the first time on 20.12.1996. The only perforation that had occurred earlier had been detected on 28.11.1996 and it is therefore a possibility of the Colitis subsisting. There is a probability of some other complication that may have led to the witnessing of two other perforations long thereafter, that is almost after 23 days on 20.12.1996. These two perforations are therefore almost after two months of the original laparoscopic surgery on 24.12.1996. This time span between the laparoscopic surgery and the emergence of two perforations on 20.12.1996 on the basis of the literature cited by the complainant, which is almost two months, cannot possibly be combined to construe the genesis of these subsequent perforations witnessed on 20.12.1996 to be medically connected to the laparoscopic surgery on 24.10.1996. The State Commission has nowhere discussed this evidence and the time span separating the occurrence of these subsequent two perforations which have emerged almost two months after the surgery.
NC/FA/424/2010 & 427/2010 Page | 78
94. These two perforations can at best be idiopathic in characteristic, the cause whereof may not in all probability be related to any surgical negligence two months ago for all the reasons stated above. We are therefore convinced that the subsequent two perforations in the absence of any clinching material do not seem to be related to any act of alleged negligence of the laparoscopic surgery performed on 24.10.1996.
95. The reasoning given by the State Commission as extracted hereinabove therefore omits to analyse or assess the aforesaid aspects. The Doctor in his statement as discussed in paragraphs 36 to 39 of the impugned order has categorically stated his stand, but the State Commission failed to dwell on the fact that regular toiletering and cleaning had been carried out as extracted hereinabove. The State Commission has nowhere discussed this entire procedure that was conducted by the doctor after the Enterectomy on 19.11.1996 upto 20.12.1996. Instead the State Commission has construed that since fluid was getting collected and there was abdominal sepsis, therefore the patient had not received the required relief in spite of the procedures adopted. The State Commission has treated this procedure performed as six surgeries. This inference drawn by the State Commission that the peritoneal toileting were all regular surgeries may not be a correct assessment in the sense that even though consent was taken for all the procedures as is evident from the records, it was for flushing out and cleaning the abdominal area of the puss and the fluids that had collected therein.
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96. Apart from this, on 20.12.1996, the doctor had planned to conduct resection of the colon on 21.12.1996, but the patient did not agree and got himself discharged and went to another hospital.
97. The State Commission has then relied on the certification of the doctor of the subsequent hospital namely Dr. Rangabashyam to construe that there was negligence on the part of the doctor. Neither the contents of the said certificate have been discussed and as noted above, neither was Dr. Rangabashyam introduced as a witness nor his affidavit was filed to prove the contents of the said certificate. Accordingly, placing reliance on such a certificate may not be appropriate. Sri Ramana Surgical Clinic also has not been made a party by the complainant in the proceedings which is the subsequent hospital. Thus, it was imperative on the part of the State Commission to have obtained some expert opinion.
98. We could have attempted this in this appeal, but unfortunately Dr. Hariharan has passed away and therefore any expert opinion being obtained at this stage cannot be of any use as the Doctor is not available to contest or defend even if a report arrives at this stage. Needless to say that the appeal had remained pending before this Commission for 16 years and the incident is of the year 1996. We do not find it expedient for any further exploratory investigation for an expert opinion with the passage of three decades at this stage as it may further procrastinate this legal battle.
99. With the observation hereinabove and the circumstances indicated, we partly agree with the State Commission that the onus lay on the doctor to have explained the occurrence of the perforation in the colon of the size of 5mm NC/FA/424/2010 & 427/2010 Page | 80 that was detected on 28.11.1996. This oval shape of the perforation could have been construed as spontaneous had the medical record indicated any symptoms of constipation where such a perforation occurs that has been described in the literature filed by the learned counsel for the complainant explaining the characteristic of Stercoral Colonic perforation. An injury could cause such a perforation if the Veress needle or the Trocar could or might have reached the Colon. The contention of Mr. Padhi is that the colon site where the perforation occurred, was 6 - 8 inches below the umbilical region where the Trocar and the needle had been inserted. We may refer to the medical literature relied on by the complainant where the mechanism, management and prevention of laparoscopic bowel injury had been explained and stated hereinabove. The same does not discuss or demonstrate that such an injury could be caused with a laparoscopic instrument with the aforesaid gap of 6-8 inches, but in the present case as recorded in paragraph 36 of the impugned order and also extracted hereinabove, the Doctor RW-1 has indicated that it is possible that during a laparoscopic procedure a damage could be caused to the portion of the area, but he has denied puncturing the large intestine / Colon, presumably because the tumour was located on the small intestine and therefore the instrument may or may not have touched the Colon.
100. The State Commission has arrived at the conclusion that the Doctor has been unable to explain the perforation, and on the other hand the arguments of the learned counsel on behalf of the doctor, that it was a spontaneous perforation does not seem to be convincing in the background that the nature NC/FA/424/2010 & 427/2010 Page | 81 of the oval perforation could have been possible if the patient had symptoms of constipation. We therefore do not find any convincing explanation coming forth about the spontaneity of the perforation that emerged on 28.11.1996. On the other hand, the symptoms of pain had been reported on 08.11.1996 even though the patient went to the hospital on 16.11.1996. On the opening of the wound the complications were observed on 28.11.1996 and not only this, there was a continuous formation of pus and fluids which was treated by the doctor by flushing it out and which continued till 20.12.1996. This period of the complications, the formation of pus and the repeated toiletering therefore does indicate the probability of a deficiency or negligence on the part of the treatment meted out, which could not successfully cure the diagnosed symptoms. These subsequent interventions therefore indicate that complications on account of some faulty procedure or line of treatment had caused the infections which ultimately resulted in septicaemia and then the consequential deterioration of the patient who ultimately died on 29.04.1998.
101. We have also assessed the evidence on the facts of the present case keeping in view the principles observed by the Apex Court in the case of Virender Nath Gautam vs. Satpal Singh & Ors., (2007) 3 SCC 617. Paragraph 50 of the said case is extracted hereinunder:
50. There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or NC/FA/424/2010 & 427/2010 Page | 82 evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.
102. While arriving at the said conclusion we have also been guided by such piquant situations in surgery and the principles of res ipsa loquitur that have been discussed by Michael A. Jones in his book "Medical Negligence"
Sweet & Maxwell where under the heading of operations while dealing with errors in treatment under Chapter-IV Standard of Care - Specific Instances, he has dealt with the same as follows:
The courts have long-recognised that the mere fact that something has gone wrong during the course of an operation is not per se indicative of negligence. Thus, where a surgeon accidentally cut the patient's retina in the course of an operation on his eye this was held not to be negligent, because the surgeon was working within an extremely small margin of error. Similarly, the fact that a patient sustained damage to a facial nerve does not indicate that the surgeon used excessive force in removing granulated tissue from the eardrum. On the other hand, a surgeon who accidentally knocked out four of patient's teeth during a tonsillectomy had fallen below a proper standard of care. Perforation of the uterus during the course of performing a Dilatation and Curettage is relatively common, and not in itself indicative of negligence, but damage to the small bowel during the operation is so rare as to be outside the range of normal practice and is indicative of negligence. In Hendy v Milton Keynes Health Authority (No.2), during the course of an abdominal hysterectomy, a suture was unintentionally passed around the right ureter, ultimately causing the occluded ureter to burst from a build up of pressure. The evidence indicated that it is possible for ureteric damage to occur despite the use of a competent surgical technique, but these rare instances of non-culpable ureteric damage were attributable to anatomical variations that were outside the normal range.
103. The said observations of the learned Author are in relation to the techniques of surgery. In the instant case, there is no allegation about the NC/FA/424/2010 & 427/2010 Page | 83 technique of laparoscopy and laparotomy adopted for carrying out the surgery on 24.10.1996 or even thereafter. The allegation is about the same having not carefully performed that might have caused an injury.
104. In the above circumstances, even though the subsequent perforations cannot be attributed to any such negligence in surgery on 24.10.1996 as concluded hereinabove, but a partial negligence on the principles of res ipsa loquitur seem to have been correctly assessed by the State Commission on the basis of the analysis of the evidence regarding the occurrence of the perforation that emerged on 28.11.1996.
105. We would have interfered with the quantum of compensation, but as is evident from the record, the complainant had filed F.A. No. 8/2011 that had been dismissed for want of prosecution on 03.12.2024. It is only the appeals of the hospital and the doctor that survived. We therefore find no reason for enhancing any amount of compensation keeping in view the findings that have been recorded hereinabove and the dismissal of the appeal filed by the complainant, but at the same time, it would be appropriate to refer to the interim orders passed in these appeals.
106. We may point out that when the Appeal No. 427/2010 was filed by the Doctor, the following interim order dated 04.05.2011 was passed:
We have heard learned counsel for the appellant.
Admit.
Notice on stay application. Call for record.
Ad interim relief by way of the execution of the operative order rendered by the State Commission if the appellant deposits 50% of the amount awarded, to the extent of Rs. 2.5 lacs.
Stand over to 18.08.2011.
NC/FA/424/2010 & 427/2010 Page | 84
107. Initially no interim orders had been passed in F.A. No. 424/2010 filed by the Hospital. From the records, including the correspondence file that is maintained for administrative purposes, we also do not find the statutory pre-
deposit of Rs. 35,000/- having been made as required for the filing of an appeal under Section 19 of the Consumer Protection Act, 1986. The proviso to Section 19 is extracted herein under:
Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:2
[Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees thirty-five thousand, whichever is less.]
108. The same requires that an appeal shall not be entertained unless the appellant deposits either 50% of the decretal amount or Rs. 35,000/-
whichever is less. The hospital in F.A. No. 424/2010 is nowhere reported to have tendered the statutory pre-deposit of Rs. 35,000/-. However, without noticing the aforesaid facts, an interim order was passed on 04.05.2011 in the appeal filed by the doctor i.e. F.A. No. 427 of 2010.
109. In the absence of the statutory pre-deposit in F.A. No. 424 of 2010, this Commission again passed interim orders on 30.06.2015 in F.A. No. 424 of 2010 which is extracted hereinunder:
Appellant has filed I.A. No. 3133/2015 for grant of stay. None appeared for Respondent No. 2 even after service of notice of application. In such circumstances, operation of the impugned order is stayed subject to depositing NC/FA/424/2010 & 427/2010 Page | 85 Rs.2,50,000/- with State Commission within four weeks, which may be kept in FDR initially for a period of one year.
As Respondent No. 2, who has also filed Appeal No. 8/2011 is not appearing; in the interest of justice matter is adjourned.
Adjourned to 05-10.)-2015 for final hearing.
110. There is an office report dated 30.09.2014 that no proof of deposit of the amount of Rs. 2,50,000/-as directed by this Commission has been tendered. The direction was to deposit it before the State Commission.
111. The Commission even though had passed an interim order on 04.05.2011 in F.A. No. 427 of 2010 again passed the same order on 30.06.2015 in F.A. No. 427 of 2010 after noticing that a similar interim order has been granted to the hospital. The order dated 30.06.2015 in F.A. No. 427 of 2010 is extracted hereinunder:
Counsel for the appellant has filed Vakalatnama, I.A. No. 3615/2015 for granting stay and I.A. No. 3616/2015 for taking additional documents on record. As stay has already been granted in favor of one of the opposite party - Vijaya Health Centre, I deem it appropriate to stay impugned order, subject to depositing Rs.2,50,000/- with State Commission within four weeks, which may be kept in FDR initially for a period of one year.
Put up on 05-10-2015 for disposal of I.A. No. 3616/2015 as well for final hearing along with FA No. 424 of 2010.
112. The Office report dated 30.09.2015 records that no proof of deposit before the State Commission has been filed.
113. There is no other material on record to verify as to whether both the appellants have complied with the said order or not.
114. We have traversed these facts, as having held that there is a partial negligence in the treatment of the deceased patient, even though the appeal of enhancement F.A. No. 8/2011 filed by the complainant has been dismissed, NC/FA/424/2010 & 427/2010 Page | 86 yet to that extent and given the reasons recorded by us hereinabove in the background that the Doctor has passed away and his heirs are contesting these appeals, we find it expedient and just on the facts of the present case to proportionally limit the compensation only to the extent it has been directed to be deposited under the interim orders referred to hereinabove.
115. We could have dismissed the appeal of the hospital as not entertainable in the absence of the statutory pre-deposit of Rs. 35,000/-, but the appeal having been admitted 15 years hence and subsequent interim orders having been passed, we are disposing off both these appeals with a direction that the quantum of compensation as awarded by the State Commission shall stand modified to the extent that the amount directed to be deposited vide interim orders dated 30.06.2015 in both the appeals shall stand substituted as the compensation payable to the complainant / legal heirs of the deceased complainant. Accordingly, instead of the entire decretal amount as imposed to the tune of Rs. 10 lakh, the same shall stand reduced to the amounts that were directed to be deposited under the interim orders dated 30.06.2015 quoted above.
116. In the event the appellants have deposited the said amounts respectively before the State Commission, and the same has been invested as directed under the said orders, then the said amount shall be released to the respondents - complainants together with any interest accrued thereon in satisfaction of the decree as modified under this order.
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117. We have modified the awarded amount as we have partly differed with the findings of the State Commission on the extent of negligence in the light of our partial disagreement with the findings recorded by the State Commission.
118. We further clarify that in the event the appellants have not deposited the said amount before the State Commission as per the interim orders dated 30.06.2015, then they shall within two months pay Rs. 2,50,000/- each to the respondents complainants along with 6% interest thereon to be calculated with effect from the date of the award made by the SCDRC, Chennai i.e. 05.10.2010 till the date of actual payment.
119. The amount of Rs. 35,000/- of statutory pre-deposit in the appeal filed by the doctor i.e. F.A. No. 427 of 2019 shall be remitted to the State Commission by the Registry along with any interest accrued thereon within a month from today to be adjusted towards the decretal amount against the liability as determined for payment in F.A. No. 427 of 2019 in terms of this order.
120. Both the appeals therefore stand disposed of in the terms indicated above.
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(A.P. SAHI, J) PRESIDENT .............................................
(BHARATKUMAR PANDYA)
MEMBER
Pramod/Court-1/CAV
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