National Consumer Disputes Redressal
C.K. Pandian & Ors. vs S.R. Trust & Ors. on 17 September, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 674 OF 2007 (Against the order dated 30.08.2007 in OP No. 160/1998 of the Tamilnadu State Consumer Disputes Redressal Commission) 1. C.K. Pandian No.13, Manali Salai Ezhil Nagar, B-Block Kodungaiyur Chennai-600118 2. P. Vinayakaselvi No.1, Anna Road, K.K. Colony Kodungaiyur Chennai-600118 3. C.K.P. Parmasundari 4. C.K.P. Aiyan Ram 5. C.K.P. Srinivasalingam Appellants 3 to 5 are residing at No.13, Manali Salai Ezhil Nagar, B-Block Kodungaiyur Chennai-600118 Appellants Versus 1. S.R. Trust Rep. by Founder Chairman Dr. N. Sethuraman Meenakshi Mission Hospital and Research Centre (Run by S.R. Trust) Lake Area, Melur Road Madurai-625107 Tamil Nadu 2. Meenakshi Mission Hospital and Research Centre (Run by S.R. Trust) Lake Area, Melur Road Madurai-625107 Tamil Nadu 3. Dr. Ramesh Meenakshi Mission Hospital and Research Centre (Run by S.R. Trust) Lake Area, Melur Road Madurai-625107 Tamil Nadu 4. Dr. Pandian Meenakshi Mission Hospital and Research Centre (Run by S.R. Trust) Lake Area, Melur Road Madurai-625107 Tamil Nadu 5. M/s New India Assurance Co. Ltd. No. 242-B, Kamarajar Salai Madurai Tamil Nadu Respondents BEFORE: HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For Appellants : Mr. V. Ramasubramanian, Advocate with Mr. A. Lakshmi Narayanan, Advocate and Mr. V. Balachandran, Advocate For Respondents : Mr. K. Perumal, Advocate for R-1 to 4 Mr. Nitesh, Advocate for R-5 Pronounced : 17th September, 2013 ORDER
PER VINEETA RAI
1. This appeal has been filed by C.K. Pandian, Appellant herein and Complainant No.1 before the Tamil Nadu State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) and others being aggrieved by the order of that Commission which had dismissed their complaint of medical negligence, which resulted in the death of Appellant No.1s wife Parvathi, against Meenakshi Mission Hospital and Research Centre (hereinafter referred to as the Respondent Hospital), its founder Chairman and concerned Doctors.
2. In his complaint before the State Commission, it was stated by Appellant No.1 that his wife Parvathi (hereinafter referred to as the Patient) was a heart patient with diabetes. Following an advertisement issued by the Respondent Hospital regarding their Meenakshi Health Care Scheme, Patient joined the scheme on 05.06.1996 and the Duty Doctors of the Respondent Hospital after examining her informed Appellant No.1 that she had a minor problem in her ECG and she should seek admission in the Respondent Hospital to undergo various tests. The next day, Patient was informed that apart from the earlier medical problems she was also detected with stones in the gallbladder for which immediate surgery was advised since a delay could endanger her life. Appellant No.1 and the Patient specifically enquired from the concerned Doctors whether in view of her heart ailments and diabetes Patient could withstand the surgery, to which they were informed that it will be done under laparoscopic method which only required a small hole and the stones could be removed within 10 minutes and she would be discharged the next day. Appellant No.1, therefore, reluctantly gave consent for this procedure. During the course of surgery on 12.06.1996 before the Patient could even complete the glucose drip administered to her, she started complaining of chest pain, following which the nurse on duty removed the glucose drip and the surgery was postponed. Appellant No.1 expressed concern about this incident to Respondent Doctors i.e. OPs 3 and 4, who, however, reiterated that it was necessary to remove the gallbladder stones by laparoscopic procedure and the procedure was refixed for 14.06.1996. Following the surgery the Patient was taken to Intensive Care Unit and was in a coma.
When Appellant No.1 met the Patient, he was shocked to see a big plaster about 6 to 7 inches on the right side near the hip of the Patient. Appellant No.1 thereafter immediately approached OP-3 seeking clarification as to why the procedure was not conducted through laparoscopic method since consent for the same had been given. It was only on 19.06.1996 that Respondents informed him that the laparoscopic procedure could not be done because gas was required to be infused which the Patients heart would not withstand and, therefore, an open surgery was conducted. Patients condition continued to deteriorate. On 20.06.1996 Patient was taken in an ambulance for a CT scan (head) to Vita Diagnostics Limited, MR & CR Imaging Centre and though the result of the scan was made available to the Doctors at the Respondent Hospital, they failed to furnish the same to Appellant No.1 and instead shifted the Patient to a separate ICU Room on additional payment.
Patient remained there from 21.06.1996 to 26.06.1996 without any improvement in her comatose position. On 26.06.1996 Appellant No.1 was informed by the Founder and Chairman of OP-1/Trust that Patients heart and lung were on artificial support and advised that she be taken to home. After obtaining signatures of Appellant No.1, Patient was put in the ambulance with a ward boy holding a rubber pump in his hand and pumping a tube inserted in the nose of the Patient. During the course of the journey, Patient breathed her last.
Appellant No.1 thereafter approached the Respondents to obtain the discharge summary and other medical papers which were not given to him on the grounds that the Patient was discharged against medical advice and in order to get the discharge summary he should pay Rs.6312/-. However, till date the discharge summary was not given. Appellant No.1 contended that the Patient passed away because an open surgery for which no consent was taken and which was contraindicated in patients with diabetes and heart ailments was conducted on her instead of a surgery by laparoscopic procedure to remove the gallbladder stones. Alleging medical negligence, Appellants filed a complaint before the State Commission and requested that Respondents be directed to pay them Rs.10,00,000/- towards the loss of life of the Patient and for medical expenses, mental agony etc.
3. In the written rejoinder filed by Dr. Ramesh Ardhanari (Respondent No.3) on his behalf and that of Respondents No.1, 2 and 4 the allegations of medical negligence were denied. While admitting that the Patient had been admitted to the Respondent Hospital, it was denied that the operation was to be performed only through laparoscopic method and Appellant No.1 as well as the Patient had been clearly informed that it would be performed by open cholecystectomy method because a laparoscopic surgery could lead to gas infusion which can be unsafe for patients with heart ailments. The operation was conducted on 14.06.1996 after all the necessary tests confirmed that the sugar level and other indicators were normal. The operation through open cholecystectomy was successfully concluded and the Patient was shifted in a satisfactory condition to the post-operative general ward and she was given liquid food on 17.06.1996 and solids on 18.06.1996. Her condition was normal till 19.06.1996 when Patient suddenly became unconscious and started frothing from the mouth. She was immediately shifted to IMCU and preliminary tests indicated that there were some problems with the brain for which a CT scan was taken which confirmed that there was a brain stroke. Since the condition of the Patient did not improve, she was shifted to IRCU on 23.06.1996. Appellants were not prepared to spend money on the Patient and kept demanding for her discharge. Despite having explained her serious condition, Appellants continued to be adamant and, therefore, Patient was discharged against medical advice and she passed away during transit. Appellants contention that Respondents had informed him that it was necessary to urgently remove the gallbladder stones is not correct. Patient was never forced to undergo the operation which was conducted after full consent of the Patient and Appellant No.1. It was also denied that Appellant No.1 was not given the discharge summary. In fact, he was requested to come personally to the Respondent Hospital and collect the same after clearing the necessary bills. Respondents contended that they work in a super-speciality hospital having all the facilities with fully qualified doctors and the surgery was conducted taking into account all important facts including the co-morbidities from which the Patient suffered. The brain stroke which caused the death of the Patient was not related to the surgery in any way.
4. The State Commission after hearing the parties and considering the evidence produced before it dismissed the complaint by observing as follows:-
10. It was for the experts namely the opposite parties in the instant case to decide on which method would suit the patient best. Merely because it had been mentioned as lop Cholecystectomy, it would not mean that the opposite parties had agreed to do only laparoscopy. The consent letter given by the first complainant is also to the effect that permission was granted for the performance of any diagnostic examination, biopsy, transfusion or operation and for the administration of any anaesthetics as may be deemed advisable in the course of the hospitalization. PW1, the first complainant, has also admitted in his evidence in cross-examination that he had gone through the consent letter, read it and signed it. It is also to be noted further that the patient had blood pressure, ischemic heart disease and diabetes mellitus. The first complainant had also taken away the patient against medical advice. There was no post mortem conducted. He did not give any complaint to the police. Even in the correspondence, he had not alleged that there was deficiency in service on the part of the doctors and that only because of that, the patient died.
11. When the complainants have not substantiated the case of medical negligence on the part of the opposite parties, we are unable to give any relief to the complainants. OP3 examined as RW1 has given clear and cogent evidence as to the circumstances under which the developments took place. They had satisfied themselves that the patient was fit to undergo operation and only thereafter suggested surgery. They had not decided on laparoscopic surgery but only on open surgery. It is also not correct to say that they have convinced the patient and her spouse only for laparoscopic surgery. In the consent letter, the mode of operation was not mentioned. Since the patient had a history of heart problem, they thought that open surgery should be the better option. The patient got discharged against medical advice and bills were also pending and that was the reason why discharge summary was not furnished to the patient or her spouse immediately. Ex.B4 series would show that after surgery, the patient took solids.
Since the physician had given the green signal for the surgery and other tests also had been done, they went ahead with the surgery. In view of the discussion above, we hold that the complainants have not established any deficiency in service on the part of the opposite parties.
Hence, the present First Appeal.
5. Learned Counsels for both parties made detailed oral submissions.
6. Counsel for the Appellants recounted the submissions made before the State Commission and earlier in their written statement and reiterated that when the Patient had gone to the Respondent Hospital, it was for a general medical check-up and there were no complaints in respect of her gallbladder. Even when the gallbladder stones were detected following ultrasound, consent to remove the same was given primarily because the Respondent Doctors stated that delay in surgery could cause severe complications and further the gallbladder stones could be removed through a laparoscopic procedure, which is only a key hole surgery with minimum risk and Patient would be discharged next day.
However, behind the back of Appellant No.1 and without the consent of either Patient or Appellant No.1, an open surgery was conducted which is clearly contraindicated as per medical literature for patients suffering from diabetes and heart ailments and this was reiterated before the State Commission by a medical expert Dr. M. Saravanabhavnantham, who is Assistant Professor (Surgery) in Government Stanley Hospital, Chennai.
Counsel for the Appellants also brought to our notice medical literature on the subject and quoted from Clinical Course and Complication (MORTARN), which had emphasized as follows :-
Patients with diabetes mellitus have an increased operative risk with elective and emergency cholecystectomy, largely because of concomitant cardiovascular disease.
Prophylactic cholecystectomy in diabetic persons is not recommended.
Further, as opined by the above expert Doctor since gallstones are fairly common but everyone does not necessarily suffer because of them, it is not always necessary to operate unless otherwise indicated since the benefit of prophylactic cholecystectomy may sometimes outweigh the risk of conducting the surgery. In the case of the Patient, as per the ultrasound report, there was only a single stone which may not have warranted an emergent open surgery. Further, the opinion of an expert Cardiologist was not taken prior to the surgery on the Patient even though her LV Ejection Fraction was 56% while the normal is 70% and, thus, the operation was conducted without adequate pre-operative evaluation. The evidence of the medical expert was not given due importance and credence by the State Commission primarily on the grounds that the medical expert Dr. Saravanabhavnantham had not physically examined the Patient and his evidence was based on the clinical and surgical records and secondly in his cross-examination he had admitted that the normal LV Ejection Fraction is 50% and not 70%, which, therefore, contradicted his deposition that evaluation of a Cardiologist was necessary which was obviously not required in the instant case. However, according to the Counsel for the Appellants, the State Commission should have taken note of his expert opinion backed by medical literature that open surgery in patients with diabetes and other co-morbidities is clearly contraindicated.
Counsel for the Appellants also stated that the State Commission erred in concluding that the Patient was taken out of the operation theatre in a satisfactory condition. This was not factually correct and she was critical right from the time of the surgery till she expired and it was because of this that Appellant No.1 had also complained to the Chairman of the Respondent Hospital about the medical treatment of the Patient.
Finally, it was reiterated that consent for open cholecystectomy was never taken and the medical records prior to the surgery clearly indicated that the procedure was to be conducted through laparoscopic method. All these facts were indicative of medical negligence and deficiency in service since the Respondents had initiated open surgery without even considering the laparoscopic method and without taking into consideration the serious medical problems in the Patient because of which the surgery was contraindicated. All this contributed to the Patients demise.
7. Counsel for Respondents at the outset denied that there was any coercion or misrepresentation in respect of Respondents conducting the gallbladder surgery. In the interest of Patients health, the surgery to remove the gallbladder stones was strongly advised. The surgery was conducted after conducting the pre-operative tests and it was clear from the consent letter that there was no assurance of the surgery being done through a laparoscopic method which was ruled out because the Patient having suffered a heart attack may not have been able to sustain the gas pressure if the laparoscopic method was adopted. Respondents wanted to avoid conversion of the surgery midway and, therefore, decided on the open surgery. Counsel for the Respondents further stated that the State Commission had rightly not given credence to the evidence of Dr. Saravanabhavnantham inter alia because of the contradictory statements made by him in respect of the normal level for LV Ejection Fraction. His statement as an expert thus lacked credibility. Further, the textbooks referred to by the expert Doctor were of recent publication and not available in the year 1996. In fact, the Respondent Doctors followed the standard practice acceptable in the medical field and in this connection Counsel for the Respondents brought to our notice the medical literature cited before the State Commission and contained in the Textbook of Essentials of Surgical Practice, IV Edition wherein it is clearly mentioned that if gallstones are associated with Cholecystectomy even if there are no overt symptoms, surgery must be performed. There is no evidence that the Patient was in a critical condition after the surgery. As per the medical records, she was in a satisfactory condition after the same.
Patients death due to brain stroke was not the result of any negligence in performing the surgery and she was given the best possible treatment. It was also contended that the Patient was taken away against medical advice without the Appellants even settling the medical bills that were due.
8. We have considered the submissions made by Counsels for both parties and have also carefully gone through the evidence on record.
Patients admission in the Respondent Hospital for a medical check-up since she had a previous case history of diabetes and had earlier suffered a heart attack is not in dispute. Respondents have contended that they had never decided to remove the gallbladder stones through laparoscopic procedure and, therefore, it was done through an open surgery in the interest of Patients health.
We are unable to accept this contention of the Respondents. While it is a fact that in the consent form no specific type of surgery has been mentioned, it is clearly stated in the notings made by the Doctors on 14.06.1996 i.e. on the day of the surgery that the Patient is posted for lap cholecystectomy. Therefore, the Respondents contention that this was never an option is not borne out by their own medical records. In the medical literature which has been filed on the subject it has been clearly indicated that open cholecystectomy is contraindicated in patients with a history of diabetes and other specific co-morbidities. The literature pertains to the year 1995 and was thus available prior to the year when the surgery was conducted and was not subsequent to that as contended by the Counsel for the Respondents. In view of the above facts, particularly the notings made by the Respondent Doctors that the surgery was proposed to be conducted by laparoscopic procedure, we are of the view that Respondents have not been able to satisfactorily explain why this earlier decision was recalled and an open cholecystectomy was done. It has, of course, been mentioned by the Respondents that a surgery by laparoscopic procedure could have led to problems in the Patient because of the required gas infusion in such procedures which the Patient being a heart-patient may not have been able to withstand it. On the other hand, it is also documented that there are several major risks in conducting a surgery through open cholecystectomy method in patients with history of diabetes and heart diseases. Respondents have not been able to displace these documents by any other medical literature giving a contrary view. All surgeries carry some inherent risks and in the instant case it appears from the medical literature filed in evidence that the risks in conducting an open cholecystectomy in patients with heart and diabetes are higher than those listed for laparoscopic procedure. As stated earlier, Respondents being well qualified professional doctors have not adequately explained the reasons why they opted for an open surgery which was prima facie clearly contraindicated in such a Patient, particularly since as per their own medical records it was not their initial intent to conduct an open cholecystectomy procedure.
9. What constitutes medical negligence is now well settled through a number of judgments of this Commission as also of the Honble Supreme Court of India. One of the principles to test medical negligence is whether a doctor exercised a reasonable degree of care and caution in treating a patient [Supreme Court Case Indian Medical Association v. V.P. Shantha (1995) 6 SCC 651. In the instant case, there is no doubt that the Respondent Doctors are well qualified and there may not have been any technical mistake in conducting the open surgery. However, since as per their own records Respondents had decided on a laparoscopic procedure and without being able to satisfactorily explain why they thereafter decided to conduct the surgery through open cholecystectomy which is medically contraindicated in such patients, we are of the view that the reasonable degree of care and caution as required was not taken in the instant case. We are also not convinced that the Appellants and the Patient were duly informed that the procedure would be done only through an open surgery and not through laparoscopic method. No doubt, this was not specifically stated in the consent form but clearly since the surgery was posted for laparoscopic procedure as per the notings of the Respondent Doctors on the day of the surgery i.e. 14.06.1996, the Appellants contention that they had been assured by the Respondents that the procedure would be done only through a laparoscopic method appears to be plausible. The State Commission while noting these facts has discarded the same by observing that merely because lap cholecystectomy has been mentioned, it does not mean that the Respondent Doctors had agreed to do only Laparoscopic procedure. We also note that the State Commission has not given any credence to the statement of Dr. Saravanabhavnantham, who had given his expert medical opinion backed by medical literature that open cholecystectomy in patients with diabetes and other co-morbidities is contraindicated primarily on the grounds that he had not physically examined the Patient and had made a contradictory statement in respect of the normal LV Ejection Fraction level. Since this expert opinion was based after a study of the medical records of the Patient and after citing relevant medical literature, the opinion of Dr. Saravanabhavnantham did have evidentiary value, which was not fully appreciated by the State Commission.
10. In view of the above facts, we have no option but to set aside the order of the State Commission and partly allow the appeal/complaint. We order accordingly. Taking into view all circumstances of the case, including the medical expenses incurred, we are of the view that a lump-sum compensation of Rs.3,00,000/- would be fair and reasonable. Respondents are directed to pay this amount to the Appellants within a period of two months from the date of receipt of copy of this order. No costs.
Sd/-
(VINEETA RAI) PRESIDING MEMBER Sd/-
(VINAY KUMAR) MEMBER Mukesh