State Consumer Disputes Redressal Commission
R.Sasi & 2 Others vs Sundaram Medical Foundation, ... on 7 June, 2023
1
Date of filing :05.10.2005
IN THE TAMIL NADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, CHENNAI.
Present: Hon'ble Thiru Justice R.SUBBIAH ... PRESIDENT
Thiru.R VENKATESAPERUMAL ... MEMBER
C.C. No.50 of 2005
Orders pronounced on:07.06.2023
1. R.Sasi,
W/o. Late R.Mahesh.
2. M.Sweatha, Aged 4 years,
D/o. Late R.Mahesh
3.M.Gokulakrishnan, Aged 2 Years,
S/o. Late R.Mahesh,
Minor Complainants-2 & 3 rep.
by Mother & Natural Guardian
1st Complainant - R.Sasi.
(All residing at No.45,
Vivekanandar Street,
MGR Nagar,
KK Nagar,
Chennai 600 078. ... Complainants.
vs.
1.Sundaram Medical Foundation,
Dr.Rangarajan Memorial Hospital,
Shanthi Colony,
4th Avenue,
Anna Nagar,
Chennai 600 040,
Rep. by its Managing Director - Durai.
2
2. Dr.R.Parivalavan,
Sundaram Medical Foundation,
Dr.Rangarajan Memorial Hospital,
Shanthi Colony, 4th Avenue,
Anna Nagar, Chennai 600 040. ... Opp. Parties
For Complainants : M/s.G.Ravikumar
For Opposite Parties : M/s.T.K.Bhaskar.
This Complaint came up for final hearing on 05.08.2022
and, after hearing the arguments of the counsels for the
parties and perusing the materials on record and having
stood over for consideration till this day, this Commission
passes the following:-
ORDER
R.Subbiah, J. - President.
The complainants herein/wife and 2 minor children of one R.Mahesh have filed the present case, alleging that the death of the said Mahesh had happened due to the failure on the part of the Opposite Parties in diagnosing his bone marrow cancer at the earliest point of time and, on that basis, they seek this Commission to direct the OPs to pay to them a total sum of Rs.42.72 lakh under four different heads viz., medical expenditure incurred, compensation for the loss of the family head, 3 educational/future expenses of the children and costs of the complaint.
2. In brief, the case of the complainants is as follows:-
On 13.04.2003, the husband of the complainant/R.Mahesh (hereinafter referred to as 'patient / deceased') had severe abdominal pain, for which, he had consulted the 2nd OP, who prescribed certain medicines apart from taking a KUB Scan. On 27.08.2003, again he had severe abdominal pain and, after consultation with the 2nd OP, he was admitted in the 1st OP Hospital, where, he was diagnosed by the 2nd OP to be suffering from appendicitis. Although it was stated by the 2nd OP that a laparoscopic surgery would be performed, the said OP contrarily performed the incisive procedure by opening the stomach. After the said open surgery performed on 28.08.2003, the 2nd OP informed the 1st complainant that her husband was operated only for removal of obstructions in the intestine and that he would become alright in few 4 days. Even after his discharge from the Hospital on 01.09.2003, the patient was suffering from unbearable abdominal pain at intervals and he took periodical treatment for the same from the 2nd OP. On 22.09.2003, at the advice of the 2nd OP, he was once again admitted in the 1st OP where the 2nd OP performed a surgery on 30.09.2003 to remove an intestinal obstruction and thereafter, he was discharged on 04.10.2003. While the patient's condition was deteriorating day-by-day thereafter, during the review on 09.10.2003, the 2nd OP stated that he improved well. On 10.10.2003, the patient swooned in the bathroom at 7 PM., whereupon, he was immediately rushed to the 1st OP and admitted as an in-patient under the care of the 2nd OP, who informed the 1st complainant that the patient's hemoglobin level was not normal and asked her to arrange for blood transfusion, for removing the blood clots through another surgery. It was the relatives of the complainants who arranged for blood and platelets and even one unit of O+ blood was not available in the 1st OP to manage an emergency situation. On 17.10.2003, the 2nd OP informed 5 that they are not in a position to give any accurate treatment at the 1st OP and asked the 1st complainant to take her husband for further management to Apollo Hospital. The 2nd OP did not even provide the details of the ailment and also the reasons for the transfer of the patient from the 1 st OP to Apollo, where he was treated by Dr.Varadarajan from 17.10.2003 to 27.10.2003 and, during that time, the 1st complainant came to know that the OPs did not treat her husband properly with due care and caution. On 27.10.2003, the authorities of the Apollo Hospital directed the 1st complainant to shift her husband to the Cancer Research Centre, Adyar. Only at that time, she came to know that her husband was suffering from Cancer which was in uncontrollable stage. After examining the patient on 27.10.2003, the Doctors at the Adyar Cancer Centre opined that they were not in a position to give any treatment as it was an end-stage cancer and thereupon, he was shifted to Jeevodaya Hospital/Supportive Care Centre where he died on the next day on 28.10.2003. If the 2nd OP had properly diagnosed the cancer at the earliest point of time, the life of 6 the patient could have been saved. Due to such failure and negligence on the part of the 2nd OP, the death of the patient had occurred at the young age of 35 years, leaving the complainant aged about 30 and the two little kids of 4 and 2 year old respectively. The 2nd OP consciously misled the 1st complainant about the disease of her husband, thereby depriving the patient of prompt, necessary and correct treatment that could have averted his death; as such, his demise had become inevitable only on account of the negligence and carelessness of the OPs, who exhibited gross negligence by not taking up necessary clinical investigations/tests to detect cancer at the earliest point of time. On that basis, the complainants have come up with the present Complaint, seeking for a direction as aforementioned.
3. The OPs have filed a written version, wherein, among other things, it is stated thus:-
It is true that the patient had visited the 1 st OP on 13.04.2003 with the complaint of abdominal pain, however, 7 that time, he was not attended by the 2nd OP and the treatment was given at the Emergency Room for the symptoms and, as the investigations were normal, he was sent home thereafter.
For the first time, the patient had consulted the 2nd OP on 24.04.2003 for vague abdominal pain which was not localizable to any particular site and he also complained of occasional vomiting. The ultrasound abdomen and upper gastrointestinal endoscopy reports taken outside the 1 st OP were also normal. The 2nd OP had asked the patient to take the barium meal test to rule out any obstruction in the intestine and to report to him after the results of the test, however, the patient never followed up such advice of the 2 nd OP.
The patient had visited the Emergency Room also on 07.06.2003 and sought the opinion of the Consultant Physician on 20.06.2003; however, the said details have been concealed by the 1st complainant. The said Physician had also conducted blood test and noticed nothing abnormal and treated the patient symptomatically. As such, the OPs 8 had given the most appropriate management and conducted all necessary investigations warranted under the circumstances. It is the patient, who failed to subject himself to barium meal test as advised by the 2nd OP and, for such failure on his part, the 2nd OP cannot be held responsible for any later consequences.
On 27.08.2003, with complaints of fever and abdominal pain for the past 5 days, when the patient presented himself quite late for treatment with the 2nd OP at the 1st OP, the symptoms were new, severe and different from his previous complaints. His blood tests revealed signs of infection but his blood cell counts and levels were perfectly normal. The patient's clinical picture was suggestive of appendicitis but the diagnosis was not clear- cut. In the given situation, diagnostic laparoscopy was suggested and the nature of the procedure was clearly explained and the patient himself had signed the consent form which mentions the procedure as "diagnostic laparoscopy and proceed". The laparoscopy revealed 'small bowel entangled' and as it was not safe to proceed further by 9 laparoscopic route, the 2nd OP decided to do an open surgery. At the time of surgery, the patient had features of appendicitis as confirmed by Histopathology, which is the final confirmatory evidence that the patient had appendicitis and, due to late presentation, the infection had spread outside the appendix and involved the small bowel which was found entangled. Therefore, the allegation of the 1st complainant that the 2nd OP had informed her that the patient was operated only to remove the obstructions in the intestine is false and without any basis. After the surgery, the patient had no post-operative issues and he was eating normally and his urine and bowel movements were normal and he was able to move; whereupon, the 2nd OP had reassured the patient to expect a good recovery.
The allegation that once again the patient suffered unbearable abdominal pain and thereafter, he was rushed to the 1st OP and took periodical treatment is not true. The patient was reviewed on 04.09.2003 when he reported no pain but only complained of fullness of abdomen after eating. During the review on 11.09.2003, as the patient 10 reported back pain that was radiating upto the legs, he was referred to the Ortho Specialist, who examined him on 20.09.2003 and the clinical examination was normal.
The patient was admitted on 22.09.2003 predominantly for his back pain and he was jointly observed by the 2nd OP as well as the Ortho Surgeon between 22.09.2003 and 29.09.2003 and the MRI reports showed compression in spinal cord as the cause for his back pain and the cause of compression was not apparent on the MRI. During the subsequent days, he was seen by various other specialists including Neurologist, Urologist, etc. and none of the Consultants could come to a conclusion regarding the cause of the patient's symptoms. As there was difficulty in arriving at a firm diagnosis, the situation was explained to the patient and his relatives and, in order to find out as to whether the patient has intestinal distension as a reaction to his back-pain/Paralytic Ileus or actual obstruction to his intestine, a diagnostic laparoscopy was suggested, for which, the patient had given consent and the said procedure performed on 30.09.2003 revealed bowel adhesions which 11 were released through laparoscopy itself. The patient recovered well on the 4th day after the procedure and his intestinal obstruction was cured and he passed motions and started eating well.
On 10.10.2003, the patient was brought to the emergency room after a fainting attack in the bathroom at 7.30 PM and immediately, all resuscitative measures were taken. The diagnosis revealed that he was having fluid collection within the abdomen and, during the procedure, it was found that the patient had 2 liters of blood in his abdomen. After the surgery, the blood-clotting function failed and the 2nd OP sought consultation from the Hematologist for further treatment and the investigation revealed marrow failure which never came up in any of the blood investigations or MRI that was done earlier. After closely observing the patient in the following days, it was suspected that the marrow failure might be due to cancer. The hematologist had further discussions with the relatives of the patient and the latter decided to transfer him to Apollo Hospital and, at no point of time, the OPs had ever asked 12 the patient to get transferred to another hospital and it was the decision of his family in consultation with the Consultant Hematologist to do so. The patient had terminal incurable illness that had consumed him within a short period of seven months. The fact that the deceased had appendicitis during his first operation is proved by histopathology findings. The issue of marrow failure never came up in any of the blood tests done several times or in the MRI that was done earlier. Unfortunately, no tests or human intellect could help in the diagnosis of the patient's condition till the very end in spite of the best and collective efforts of the 2nd OP and various other Specialists, who had taken all necessary care and acted with the reasonable skill and prudence that was necessary under the law to be exercised in the given circumstances. The allegation that the OPs failed to do cancer investigation at the earliest point of time is superfluous having regard to the manner in which the patient had presented himself with totally different complications. There is no negligence or shortcoming on the 13 part of the OPs and hence, the complaint is liable to be dismissed.
4. In order to substantiate their claim and case, both sides have filed their respective proof affidavits and, while the complainants have filed 8 documents as Exs.A1 to A8, on the side of the OPs, 14 documents have been filed as Exs.B1 to B14.
5. Learned counsel for the complainants primarily argues that there is a visible failure on the part of the OPs in diagnosing the Bone Marrow Cancer at the earliest point of time and that, without doing proper diagnosis in that regard, the negligent conduct of the OPs in performing a series of procedures and surgeries upon a cancer-affected patient had further deteriorated his health condition and considerably minimized his survival chances. Though it was informed by the 2nd OP to the 1st complainant that the 1st procedure, which was scheduled on 28.08.2003, would be performed laparoscopically, totally contrary to such information, an 14 open surgery was performed by him under general anesthesia and similarly, the 2nd procedure/laparoscopic Adhesiolysis performed by him during the spell of patient's admission at the 1st OP between 22.09.2003 and 04.10.2003 was also under general anesthesia. In the third instance, after the patient's admission on 10.10.2003, upon the diagnosis of Hemoperitoneum or intra-abdominal hemorrhage, Laparotomy was performed to drain out the blood accumulated in the abdomen and this time, the cause for the bleeding was not explained. Subsequent to Laparotomy, the patient continued to have oozing from the surgical site and he had also developed hematuria/presence of blood in urine, followed by noticeable drop in hemoglobin and platelet counts. The above recorded details would go to show that the too-fragile patient was not even diagnosed of the actual illness of cancer and he was performed painful surgeries at the hands of the 2nd OP that had adversely affected his prospects of survival. In fact, no Oncologist was available in the 1st OP to diagnose cancer. It was on 14.10.2003, opinion was obtained from Consultant 15 Hematologist - Dr.Varadararajan, who found for the first time that the patient was suffering from acute bone marrow cancer. Very conveniently, in Ex.A4-Discharge Summary, dated 17.10.2003, there is no mentioning or discussion about the Haemogram Report and the Bone Marrow Aspiration Morphology Report, both dated 14.10.2003, which shows the non-diagnosis of cancer at the earliest point of time by the 2nd OP and, due to such glaring lapse and negligence, the patient had resultantly died on 28.10.2003. The facts of the case as well as the documents filed by the complainants clearly establish that the OPs are liable for medical negligence in diagnosing/treating the patient and, in the given scenario, the principles of res ipsa loquitur clearly get attracted. In V.Krishna Rao vs. Nikhil Super Specialty Hospital & Another (2010 - 5 - SCC
513), it is categorically held by the Apex Court that, where the facts speak for themselves, there is no need to call for an expert evidence. In the present case also, there is no need to adduce any expert opinion owing to the self-speaking facts and light-throwing documents about the glaring medical 16 negligence of the OPs. Since the complainants, after the loss of their family head, still continue to live under mental agony, trauma, misery and stress, it is just and necessary that the relief sought for may be granted by allowing the complaint in its entirety, in line with the core basis adopted by the Supreme Court in Balram Prasad Vs. Kunal Saha and others (2014 - 1- SCC - 384) that the pecuniary and non-pecuniary losses suffered by the claimant as well as the future losses upto the date of trial must be considered for the quantum of compensation; learned counsel pleaded ultimately.
6. Countering the above submissions, learned counsel for the OPs, at the outset, by referring to a part of Ex.B1/Acute Abdomen Structure Data Sheet, dated 13.04.2003, states that the first time the patient had visited the 1st OP/Hospital was on the said date with the complaints of nausea/vomiting and abdominal pain, for which, he was seen by Dr.Manikandan and, upon giving medication, he became better. As such, the claim of the 17 complainants that the patient's first-time consultation and treatment were with the 2nd OP is rendered a blatant falsehood.
By referring to Ex.B3/Progress Notes of the Patient on 24.04.2003, learned counsel states that, on the said date, the patient had consulted the 2nd OP for the first time for a vague abdominal pain that was not localizable to any particular site. After examining the previous ultrasound report, dated 17.04.2003, and the blood/urine test reports that were normal, the 2nd OP had advised the patient to come back after taking a barium meal test to rule out any obstruction in the intestine, however, he failed to comply with the said medical advice given by the 2nd OP.
While so, on 27.08.2003, the patient was admitted with abdominal pain and fever for the past 5 days, which would go to show that the patient came for treatment quite late. Various blood tests and examinations done at the instance of the 2nd OP revealed signs of infection but the blood cell counts and levels were perfectly normal then. Since the clinical picture of the patient suggested 18 appendicitis and the diagnosis was not clear, the 2 nd OP advised for a diagnostic laparoscopy with a clear explanation to the patient as well as his relatives that, based on the laparoscopic findings, appropriate surgery would be performed. The laparoscopic findings showed 'small bowel entangled by the inflamed appendix', which is evident from Ex.B10 and, as it was not safe to proceed any further by laparoscopic route, the 2nd OP clinically decided to do an open surgery. On the face of such final confirmatory evidence that the patient had appendicitis, there cannot be any dispute about the line of diagnosis and about the fact that the patient had a complicated case of appendicitis. The appendix removal surgery was successful and thereby, the life of the patient was saved. The removed appendix was sent to the Lab and the biopsy report, dated 29.08.2003, which forms part of Ex.B5, also confirmed the diagnosis of appendicitis. It was after a clear recovery, the patient was discharged on 01.09.2003 and further, he had no post- operative issues. His condition was reviewed on 04.09.2003 and 11.09.2003, when he complained of back pain which 19 was running down to both his legs and hence, he was referred to the Ortho Specialist, who examined him on the same date and issued necessary prescription with an advice to take bed rest.
He was again admitted on 22.09.2003 for back pain and the MRI Scan report revealed compression in his spinal cord, however, the case was unclear. Therefore, he was examined by other Specialists like Neurologist, Spine Surgeons and Urologist, which is evident from the reports under Ex.B11. To find out whether the patient had intestinal distension as a reaction to his back pain called 'paralytic ileus' or actual obstruction to his intestine, he was advised a diagnostic laparoscopy, which was performed on 30.09.2003 after due consent and, in that course, the bowel adhesions found were released laparoscopically. Thereafter, the patient gained recovery and his intestinal obstructions were cured.
Subsequent thereto, on 10.10.2003, he is said to have fainted in the bathroom and brought for admission in the 1st OP and the scan report revealed fluid collection 20 within the abdomen and, without any delay, by making all necessary arrangements for blood and platelets, he was performed Laparotomy by which the accumulated blood was drained out successfully. It was shortly thereafter, the blood clotting mechanism of the patient failed; whereupon, the Hematologist was consulted and the investigation done by him revealed loss of blood forming cells in the bone marrow, but the cause of the same could not be ascertained. Such finding of marrow failure never came up in any of the previous blood investigations or in the MRI that was done earlier. Even the Hematologist could not explain such recent development.
According to the learned counsel, the above sequence of events in the patient's case, which have been duly recorded, would self-speak that the OPs had taken extreme medical care and attention in treating the patient whenever he presented himself at intervals for abdominal pain and intestinal issues. It was only after the Laparotomy which was performed to drain out the accumulated blood in the abdomen, the patient suddenly encountered failure in his 21 blood clotting mechanism, whereupon, close observation was made by the Medical Team at the 1 st OP and, upon engaging a doubt that it might be cancer, further investigations were taken up in coordination with the Hematologist and finally, the actuality was detected. It was after the discussion with the Hematologist, the relatives of the patient decided to shift him to Apollo and, at no point of time, the OPs had ever asked the patient or his relatives to transfer him to another Hospital. Similarly, the 2nd OP never stated to anyone including the 1st complainant that he was not in a position to treat the patient or make any diagnosis, at any point of time.
Learned counsel, after specifically pointing out the above sequence of events, would submit that, in this case, the patient presented himself with different problems at intervals and the same were treated in fact with great care & attention as well as surgical precision, which is evident from the medical records that the inflamed appendicitis was removed by way of Open Appendectomy and also the bowel adhesions were removed through Adhesiolysis. At no point 22 of time, either the 2nd OP or any other Doctors from the Medical Team that treated the patient at the 1 st OP had ever noticed even a mild suggestive symptom in the patient to suspect cancer. He re-states that, none of the cancer symptoms were fathomable by a reasonable clinical intellect at any point of time before the failure of the blood clotting mechanism after the Laparotomy performed to drain out the large amount of 2 Ltr. blood that got stagnated in the peritoneal cavity. Therefore, when the treatment period between 24.04.2003 and 10.10.2003 was in respect of general ailments that had no relevance at all to suspect cancer and, when the line of treatment for the presented ailments had really worked for the patient, in that, the inflamed appendicitis was removed and the bowel adhesions were released respectively by way of Open Appendectomy and Adhesiolysis, there is no justification to allege medical negligence by stating that the OPs could have diagnosed cancer at the earliest point of time. Learned counsel has placed much reliance upon a handful decisions and the respective texts therein, which are given below:- 23
i) V.Narayana vs. the Director - SVI Institute of Medical Science & Another (2012-3-CPR-340) - Decided by the National Commission:-
" ... it can be seen that there is no evidence to conclude that the Respondents were guilty of either medical negligence or deficiency in service since the patient was comprehensively examined both clinically and through various diagnostic and related tests and all efforts were made by a competent group of professional doctors to treat his medical condition. Failure to detect the patient with Acute Myeloid Leukemia occurred either because at that time the disease had yet not developed or because it was in such an early stage and with symptoms indicative of various other medical ailments that no definite diagnosis was possible for which Respondents cannot be held responsible."24
ii) Nallam Chandra Sekhar Reddy vs. Dr. Desai Thippa Reddy Desai Hospital (First Appeal No. 358 of 2008 in Complaint No. 134 of 2002 - Decided by the National Commission on, 03 March 2017):-
" In my opinion, it was a case of acute abdomen and the failure to diagnose HCC by OP at initial stage was an error of judgment, it would not be construed as a medical negligence. The OP, with his clinical acumen made efforts clinically diagnosed it and performed appendectomy surgery. Even if we presume that the OP would have diagnosed HCC at the first instance, chance of survival of patient was bleak. "
iii) Jacob Mathew Vs State of Punjab - (2005 (6) SCC
1):-
" The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. Several relevant considerations in this regard are 25 found mentioned by Alan Merry and Alexander McCall Smith in their work "Errors, Medicine and the Law" (Cambridge University Press, 2001). There is a marked tendency to look for a human actor to blame for an untoward event a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood.
An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequacies of the 26 system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. Human body and its working is nothing less than a highly complex machine.
Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine."27
According to the learned counsel, in the present case also, the physique of the patient started to show the signs of cancer only during the treatment spell after his admission for Hemoperitoneum on 10.10.2003 and, soon after noticing the failure in the blood clotting mechanism of the patient's body, earnest steps were taken in coordination with the Hematologist and the actuality came to surface that the cancer was at the end-stage. As such, when no occasion had ever arisen for the OPs to clinically doubt or to take up an attempt to screen the patient for cancer anytime before the last spell of treatment at the 1st OP in October, 2003, the argument of the complainants that the OPs ought to have resorted to such an exercise even during April or August, 2003, is quite illogical and highly preposterous. The entire line of the complainant's allegations are totally unsubstantiated and not supported by any expert opinion and the pleadings clearly reflect the feeble understanding of the 1st complainant about the complex clinical issues; as such, she cannot be allowed to succeed in a case that is 28 completely bereft of any cause of action, learned counsel urged ultimately.
7. In the light of the rival submissions made and that of the materials available on record, the following interconnected questions arise for consideration:
" i) Was there any evocating material available or did any revelatory clinical clue exist either on 13.04.2003 when the patient had initially visited the 1st OP or in the later duration between 24.04.2003 and 10.10.2003 when he was treated by the 2 nd OP and other Specialists in the 1st OP, to suspect any symptom of cancer in him ?
ii) Whether a Medical Team or a Doctor, who treated a patient for his ailments of general nature 29 based upon a series of diagnosis which, at that initial point of time, were not even suggestive of any other underlying serious disease like cancer, can be held to be clinically negligent for not screening the patient for cancer during such initial period when the patient remained asymptomatic and his physique started to show the signs of cancer only at a later point of time?
8. It is not in dispute that the patient was around 34 or 35 years at the time of visiting the 1 st OP on 13.04.2003 with the complaint of abdominal pain. His medical records show that he was neither a diabetic nor was suffering from hypertension. Thus, other than the abdominal pain with which he presented himself initially at the 1st OP, obviously, he was hale and healthy otherwise. From Ex.B1, 30 we find that, for the said complaint, after examination by one Dr.Manikandan, he was administered Inj. Rantac (meant to reduce the excess amount of acid in the stomach)/Inj.Emset, an antiemetic drug for controlling nausea and vomiting, and prescribed Mucaine Gel, which is specifically meant for stomach ulcers. As such, during his initial visit to the 1st OP/Hospital, he did not consult the 2nd OP but some other Doctor and hence, the claim of the 1 st complainant that he had consulted the 2nd OP on that date is not borne out by records.
Thereafter, as could be seen from Ex.B3/Progress Notes of the Patient, he came to the 2nd OP on 24.04.2003 with abdominal pain and vomiting. Although the 2 nd OP advised him to come back with the report of Barium Meal Test, it seems, the patient did not comply with the said medical advice. While so, on 27.08.2003, he was admitted at the 1st OP with the complaints of abdominal pain and fever. It is the specific contention of the OPs that the patient had those complaints for the past five days and thus he came for admission/treatment quite late. Various tests 31 taken at the instance of the 2nd OP suggested appendicitis, however, the diagnosis was unclear and hence, diagnostic laparoscopy was adopted and the findings revealed entangled small bowel. It is relevant to reproduce below the following contents from the Histopathology Report under Ex.B10, dated 29.08.2003:-
"SPECIMEN : APPENDIX MACROSCOPIC : Appendix measuring 4 cms. in length.
The serosa is much congested and focally covered with exudates. Lumen contains greyish material.
MICROSCOPIC: Section shows appendix with focally denuded mucosa. The wall contains a mild infiltrate of eosinophils, few neutrophils and plasma cells. The periappendicular 32 tissue shows a fibroblastic reaction and contain a dense inflammatory infiltrate. Areas of haemorrhage are seen in the adipose tissue covered by neutrophilic exudates.
IMPRESSION: Subacute appendicitis with periappendicular inflammation and fibroblastic reaction.
The said report clearly shows that the diagnosis confirmed appendicitis. As the laparoscopic procedure was rendered unviable due to the fact that the patient had a complicated case of inflamed appendix, to save his life, the 2nd OP proceeded with the open surgery that was inevitable in the given clinical scenario for the removal of appendicitis as well as obstructions in the intestine. In fact, the removed appendix was also sent to the pathology department for testing and the biopsy report, dated 29.08.2003, which forms part of Es.B5, also confirms the factum of inflamed appendix. After his discharge on 01.09.2003, the patient 33 came for review with the 2nd OP on 04.09.2003 and, at that time, as could be seen from Ex.B4, he complained no pain except the issue of fullness of abdomen after eating. While so, during the next review on 11.09.2003, he complained of back pain, for which, treatment was given by the Ortho Specialists. Still, as the patient was in between the pangs of intestinal distension and back pain, he was once again admitted in the 1st OP on 22.09.2003 and one more diagnostic laparoscopy was performed on 30.09.2003 and as it was revealed that the patient had bowel adhesions, the same were released laparoscopically and thereafter, he was discharged on 04.10.2003.
The patient had suffered a fainting attack on 10.10.2003 and thereupon, he was rushed to the 1st OP where Laparotomy was performed to drain out the blood accumulation in the abdomen and, it was only after the said procedure, the patient's body mechanism suffered a sudden blood-clotting failure, which drove the OPs to seek the opinion of the Hematologist, at whose investigation, it came 34 to surface that the patient was suffering from bone marrow cancer.
9. From the above details available in the medical records of the patient, it is apparent that, right from his first day visit to the 1st OP on 13.04.2003 and before he was brought in an unconscious condition on 10.10.2003, the main complaint of the patient was severe stomach pain coupled with nausea/vomiting/fever, for which, he was subjected to laparoscopic diagnosis which revealed small bowel entanglement warranting an open surgery without any further scope for laparoscopic route treatment and, at the time of surgery, the inflamed appendix/appendicitis was also removed and thereafter, in the next spell, the intestinal obstruction was removed laparoscopically. In fact, the problems with which the patient had visited the OPs at different intervals were very specific to the intestinal site or bowel area, for which, proper treatment and care were given and, more importantly, during the review on 04.09.2003, the patient reported no pain except stomach fullness after 35 eating. We could infer, probably, shortly sometime before he was brought for admission with Hemoperitoneum on 10.10.2003, the effects of bone marrow cancer started to show up in the form of acute back pain that was radiating down to his legs, but, since it resembled the ortho problem and the Ortho Specialists had also taken up investigations and conducted tests including MRI which showed spinal canal stenosis at L4-L5 and L5-S1 levels with root compression and simultaneously, as the patient also had intestinal distension, no suspicion for cancer could be engaged by the Doctors who were influenced by the then clinical condition of the patient to diagnose whether he had the intestinal distension as a reaction to his back pain or actual obstruction to his intestine. But, subsequent to the failure of the blood clotting mechanism that developed after the Laparotomy performed to drain out the blood collection, rightly, the OPs immediately coordinated with/consulted the hematologist, who engaged a suspicion and the further investigations carried out confirmed that the patient was suffering from bone marrow cancer, which was then at the 36 end-stage. As such, no occasion had arisen for the 2nd OP or any other Member of the Medical Team that handled the patient, to ever suspect cancer as the patient remained asymptomatic all the time before 10.10.2003 and when the symptoms started to appear subsequent thereto, it was too late then. Even according to the complainants, both the haemogram and the bone marrow aspiration morphology reports were taken only on 14.10.2003, which is obviously after the patient's admission on 10.10.2003 for intra- abdominal hemorrhage/Hemoperitoneum. The progress notes under Ex.B4 shows that, on 16.10.2003, it was noted 'verbal report of the bone marrow biopsy was given and it revealed metastasis'. While so, when the earlier line of treatments provided to the patient prior to the last spell of treatment that commenced after 10.10.2003 was specific to the properly diagnosed complications suffered by the patient at the relevant intervals for appendicitis, intestinal obstructions and bowel adhesions, the question of subjecting the patient to any cancer screening never arose at that point of time, since the whole focus of the Doctors was 37 then to save his life by successfully removing the appendicitis. No person of logic & prudence would expect a Doctor diagnosing/treating a patient suffering from the pain of appendicitis and bowel adhesions to right away suspect for cancer or subject him to a cancer screening test. The primary duty cast upon a Doctor is to provide required medical care and treatment to the patient, who presented himself with an illness, by exercising a reasonable degree of professional skill that includes proper diagnosis. No prudent doctor would randomly suggest an extra diagnosis without any necessity in a situation where he had already diagnosed the cause for the painful illness or ailment with which the patient had come to him. As we have already mentioned, if the complications/sufferings of the patient due to the inflamed appendix with which he was presented at the initial stage were not addressed immediately by the OPs, he might have lost his life and, in that instance, the complainants would have turned the table with the same allegation of medical negligence as a double-edged weapon. At this juncture, it is apt to add the following observation of the 38 Apex Court made in Kusum Sharma & Others vs. Batra Hospital & Medical Research Centre and Others (2010 - 3 - SCC - 480):-
" 78. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. This court in Jacob Mathew's case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.39
81. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. "
Similarly, the following observations from Jacob Mathew's case (cited supra) are absolutely relevant to be reproduced below:-
" .... If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason whether attributable to himself or not, neither a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a 40 physician successfully administer the life- saving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society."
In the present case, the overall facts and circumstances of the case show that the husband of the 1 st complainant was treated by the 2nd OP and by other different Specialists at the 1st OP, where all necessary diagnostic tests were done for the complained ailments and treatment was given to him from time to time. We find no evidence on record to suggest that there was any negligence in the performance of duty on the part of the OPs or there was any element of duty in the 41 chain of events that was neglected in the course of treating the patient. As rightly pointed out, the consultation/treatment period prior to 10.10.2003 cannot be claimed as the earliest point of time to suspect/diagnose cancer for the reason that the patient was asymptomatic throughout the said period. The element of medical negligence against the OPs is, thus, totally invisible looking at the facts and circumstances of the case.
10. Further, upon examining the clinical follow-up that was pursued from 10.10.2003 onwards, we find nothing to infer any negligence on the part of the OPs in particular the 2nd OP. From the pleadings and arguments of the complainant, we find that many a times they endorse the diagnosis and findings rendered by the Hematologist- Dr.Varadarajan. It seems, they took the decision to shift the patient to the Apollo after deliberating with the said Specialist. Hence, it is relevant to quote below the following text from his consultation report available under Ex.B11, 42 which concisely covers the whole medical history of the patient:-
" CONSULTANT'S REPORT & RECOMMENDATIONS Dear Sir,
1. Many thanks for the reference 35 year old male has been having perumbilical abdominal pain and vomiting occurring once in 3 months lasting for 2 to 3 days. He had been evaluated on 28.08.2003 and appendectomy performed. HPE of the specimen revealed features of subacute Appendicitis. He has developed features of ?subacute intestinal obstruction after 15 days Necessitating adhesiolysis. During both these surgeries there has been no excessive bleeding tendency. No previous H/o any 43 spontaneous excessive post traumatic bleed. No family H/O bleeding diathesis. 12 days after the Laparoscopy, he has developed acute vague abdominal discomfort followed by progressive abdominal distension, hypotension & unconsciousness.
USG Abdomen revealed Hemoperitoneum and 2 litres of fresh blood has been evacuated. In the past three days he has received 9 units of packed cell, 16 units platelets and 7 units FFP.
In spite of this, his CBC done shows persistent anemia & thrombocytopenia & mild leukopenia with lymphocytic predominance peripheral smear shows circulating nucleated RBCS.
.....44
IMPRESSION:
1. Acute Intraperitoneal haemorrahage due to thrombocytopenia - possible excessive peripheral destruction with coexisting recalcitrant anemia - to R/o TTP-Preceded by Septicemia.
2. PNH to be excluded.
3. Marrow infiltration.
.....
Will suggest treatment after receiving reports. ......"
The above report of the Hematologist would go to show that the pre-Hemoperitoneum stage treatment was in respect of appendicitis/intestinal obstruction/bowel adhesions and it further reveals that his condition was then managed clinically well as there was no excessive bleeding during the two surgeries performed by the 2nd OP. Therefore, the argument of the complainants that the 2 nd OP ought not to have performed the two surgeries for appendix removal / intestinal obstruction / bowel adhesions is not in line with 45 logic for the reason that it is common knowledge, if the infected/inflamed appendix is left unremoved, it may rupture or burst open and result even in death of the patient. In other words, any delayed medical response in removing the infected appendix might endanger the life of the patient, in which case, the complainants would allege medical negligence otherwise by stating that the actual complication/appendicitis, for which the patient was diagnosed, was not given timely treatment. Secondly, when the diagnosis is very clear that the patient was suffering from appendicitis and intestinal obstruction, the argument that the 2nd OP ought to have first screened for cancer is contrary to sense and logic for the reason that the patient was asymptomatic at that point of time and also, he had no previous medical history of adverse nature. When there was no way open for the OPs during the initial periods to suspect cancer and when it is not known, from when the patient developed the cancer cell growth in the bone marrow, to say that the OPs ought to have taken steps at the earliest point of time to diagnose cancer is nothing but an empty 46 argument, particularly when the first-time signals of cancer started to show only at a later stage and sadly, it was an end-stage. Also, the complainants miserably failed to adduce an expert opinion, by which, they could have presented a case that, even during August, 2003, there were clinical clues & options open for the OPs to do a cancer diagnosis for the patient, which the OPs failed to do negligently and that the procedures of appendectomy & adhesiolysis were absolutely uncalled for. But, the complainants miserably failed to adduce any such opinion which vitiates their fragile claim built upon vague and vexatious allegations. After a careful scrutiny, we find nothing to suggest any medical negligence on the part of the OPs, who in fact provided the required treatment to the patient at the relevant points of time and further, the problems suffered at that point of time also seemed to have been clinically addressed as the patient had responded well then. In fact, soon after detecting cancer, combined efforts were taken by the Medical Team as a whole and, from the records we find, after consultation with the hematologist, it 47 was the relatives of the complainant who had decided to shift the patient to the Apollo. The discharge summary of Apollo under Ex.A5 falsifies the pleadings of the 1 st complainant that she was directed by the said Hospital's Authorities to shift the patient to the Cancer Research Centre at Adyar, and the same shows otherwise that, due to financial constraint, the patient was discharged at request with an advice to continue further treatment at the Adyar Cancer Research Centre. The other grievance of the 1st complainant that the 2nd OP resorted to the open surgery/appendectomy without doing the procedure laparoscopically, that her husband was seen weak after the removal of intestinal obstruction and that she was not told the reason for accumulation of blood in the abdomen of the patient is bereft of any merit as such allegations are self- serving in nature that do not point towards any medical negligence against the OPs. Deprecating the practice of filing vexatious litigations against the Medical Professionals, the National Commission, in Ranjit Sarkar vs. ILS Hospitals 48 & Ors (Manu/CF/0063/2021), has made the following observations:-
" 92. The attitude / intention of Complainant is quite apparent from the complaint that the Complainant herein has used a litany of words and phrases in his pleadings and arguments which far from creating an impression upon us is acting rather to the contrary. It also demonstrates the extent to which a litigant can go to ramp up his grievances and complaint in misplaced attempt to influencing a judicial decision in his favour. He could not be more wrong. At the outset, such a practice is strongly deprecated. In several cases, while acting in zeal to present the case in a way which appears to most damning against the medical professional, some litigants or their representatives seem to be losing 49 sight of what damage, distress or mental stress that they cause to the treating physicians who are equally affected by uncensored choice of words to describe them. It should be borne in mind that whether in this particular proceeding, there is negligence or otherwise is a question of the peculiar facts, the circumstances of the case supported by relevant evidence presented by both parties before any competent forum. Herein, the Consumer courts or other Hon`ble Courts as the case may be, are the sole adjudicating authority in what can or could be considered as negligence or otherwise.
93. It is settled view, that, "The Consumer Protection Act should not be 'a halter round the neck' of doctors to make them fearful and apprehensive of taking 50 professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death", as observed by the Hon'ble Supreme Court in Kusum Sharma and others v. Batra Hospital and Medical Research Centre and Others (2010) 3 SCC 480. The Hon'ble Bench further stated that 'doctors in complicated cases have to take chances even if the rate of survival is low.
A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act.' Thus the Bench stated that, 'Courts have to be extremely careful to ensure that unnecessarily, professionals are not harassed and (or else) they will not be able to carry out their professional duties 51 without fear. 'it is the matter of common knowledge that after some unfortunate events, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closed linked with the desire to punish.' In the said judgment, the Hon'ble Supreme Court held that the medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals".
In a case of medical negligence, to succeed, a complainant has to prove three elements, whereby, a duty of Doctor's care is owed to a patient and as a consequence of breach of that duty, the patient suffered the consequences of damage; but here, those aspects are per se absent. As we have 52 repeatedly pointed out, when no occasion had ever arisen for the OP Doctors anytime before the last spell of treatment at the 1st OP during October, 2003, to suspect cancer, the prime allegation of the complainants that, instead of performing the two surgeries viz, Appendectomy and Adhesiolysis, the OPs ought to have subjected the patient to cancer screening, is rendered highly absurd and imbecilic. We hold that, merely because an asymptomatic patient, who initially received treatment for specifically complained ailments, becomes symptomatic to a major illness like cancer only at a later point of time, neither the right course of treatment that was given for the actual previous illness can be brought to questioning nor the medical professionals be dragged to unnecessary legal proceedings based on an empty allegation that they failed to screen the patient for cancer at the earliest point of time, when no clinical scope or suspicion or necessity actually had existed to do any such screening. As such, we find no merit whatsoever in the Complaint and the same is liable to be dismissed. 53
11. In the result, the complaint fails and it is dismissed as devoid of any merit. No costs.
R VENKATESAPERUMAL R.SUBBIAH, J. MEMBER PRESIDENT.
LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANTS Sl.No. Date Description of Documents Ex.A1 17.04.2003 Copy of Abdomen and KUB Scan Report given by the opposite parties Ex.A2 01.09.2003 Copy of Discharge Summary given by the 2nd opposite party Ex.A3 04.10.2003 Copy of Discharge Summary given by the 2nd opposite party Ex.A4 17.10.2003 Copy of Discharge Summary given by the 2nd opposite party Ex.A5 27.10.2003 Copy of Discharge Summary given by the Apollo Hospital Ex.A6 12.12.2003 Copy of Death Certificate Ex.A7 -- Copy of bills showing the expenses incurred during the outpatient and inpatient at 1st opposite party Ex.A8 -- Copy of bills showing the expenses incurred at the Apollo Hospital LIST OF DOCUMENTS MARKED ON THE SIDE OF THE Ops Sl.No. Date Description of Documents Ex.B1 -- Copy of Investigation Reports 54 Ex.B2 -- Copy of Examination Reports Ex.B3 -- Copy of Emergency Department Records Ex.B4 -- Copy of Progress notes and Nurses notes Ex.B5 -- Copy of inpatient Test Reports Ex.B6 -- Copy of physicians order sheet Ex.B7 -- Copy of in-patient Discharge Summary Ex.B8 -- Copy of Consent Form Ex.B9 -- Copy of Operation Reports Ex.B10 -- Copy of Pathology Reports Ex.B11 -- Copy of Consultation Reports Ex.B12 -- Cop of Investigation Charts Ex.B13 -- Copy of Blood Records Ex.B14 -- Copy of Critical Care Flow Charts R VENKATESAPERUMAL R.SUBBIAH, J.
MEMBER PRESIDENT.
ISM/TNSCDRC/Chennai/Orders/June/2023.