National Consumer Disputes Redressal
Smt. V. Bhavani vs Dr. S. Siva Subramaniam on 30 January, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 279 OF 2007 (Against the order dated 21.02.2007 in O.P. No. 108/99 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai) Smt. V. Bhavani W/o S. Vijayraja No. 18, Srirengapalayam East Kumarasamy Raja Nagar Rajapalayam Appellant Versus Dr. S. Siva Subramaniam M.S.M.R.S.H. (London) Karthik Nursing Home Chettiarpatti Rajapalayam Respondent BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER For Appellants : Mr. V. Prabhakar, Advocate For Respondent : Ms. Hetu Arora Sethi, Advocate Pronounced on 30th January, 2013 ORDER
PER VINEETA RAI, MEMBER
1. Smt. V. Bhavani, original complainant before the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (hereinafter referred to as the State Commission) and Appellant herein had filed this first appeal being aggrieved by the order of that Commission which had dismissed the complaint of medical negligence against Dr. S. Sivasubramaniam, Respondent herein and Opposite Party before the State Commission.
FACTS :
2. Appellant approached Respondent for treatment of irregular menstrual bleeding on 24.02.1998 and Respondent after examining her and conducting relevant tests advised that she be admitted in the Hospital for undergoing a Trans Cervical Endometrial Resection (TCER). She was required to purchase the medicines from Respondents clinic and also pay Rs.3000/- for the surgery. The surgery, which lasted nearly four hours, was conducted under epidural anaesthesia but because the surgical tools and apparatus were not sterilized in advance and there was no pre-arrangement for a generator in case of power failure, which failed four times during the surgery, she experienced severe pain during the surgery and on the third day from the surgery she developed Sepsis, resulting in high fever, body pain, retention of urine and abdominal swelling. Respondent prescribed some medicines but she suffered renal failure and her husband was advised to admit her to Meenakshi Mission Hospital for treatment of renal failure. She was shifted to that Hospital and admitted in the Intensive Care Unit, where she was treated for Septicaemia, Jaundice and Renal Failure and was also put on ventilator support. Because of the sincere and effective steps taken by a team of doctors at that Hospital, the Patient recovered from her coma and though she was discharged from the Hospital, she continues to have joint pains, nervous weakness and shrunken kidneys because of which she might need renal transplantation in due course.
Being aggrieved because of the medical negligence on the part of Respondent, which resulted in enormous pain and suffering as also heavy expenditure, Appellant issued a legal notice to him claiming a sum of Rs.15 Lakhs as damages and compensation for medical negligence and deficiency on his part. Respondent, however, sent an evasive reply and denied the charges.
Aggrieved by this, Appellant filed a complaint before the State Commission and requested that the Respondent be directed to pay her total amount of Rs.15 Lakhs as compensation under the following heads:
1) Medical expenses ..
Rs.3,50,000-00
2) Attendance and Nutrition till 6-5-98 ..
Rs.50,000-00
3) Pain and suffering and Transportation ..
Rs.4,00,000-00
4) Future attendance for transplantation, Nutrition and Hospital ..
Rs.3,00,000-00
5) Reducal of the normal span of life and damage ..
Rs.4,00,000-00 Total ..
Rs.15,00,000-00
3. Respondent on being served filed a written reply denying that there was any medical negligence on his part, as alleged by the Appellant. The charge that the equipments were not sterilized was specifically denied by Respondent, who stated that the Resectoscope, Telescope and Cautery Loops were sterilized by immersion in cidex solution prior to the surgery as also all other equipments, which included electrical cords, suction and irrigation tubes as per standard procedure. It was also specifically denied that there was any power-cut during the surgery, which was completed within an hour. Since the Patient was under epidural anaesthesia throughout the surgery, the possibility of her seeing anything, including her contention that there was a power failure, is not factually correct. After successful completion of the surgery, the Patient was recovering satisfactorily until the fourth day when it was noted that her urine output was very low and, therefore, her Blood Urea and Serum Creatinine were tested and found to be high. After medical examination, Appellant was diagnosed with Acute Renal Failure and immediately referred to Meenakshi Mission Hospital for Dialysis. Respondent stated that even after examination in Meenakshi Mission Hospital he visited her to check her progress and the doctors there informed him that she had developed Respiratory problems, Jaundice and Vomiting and, therefore, put on ventilator and kept in the Intensive Care Unit.
However, she never lost consciousness and subsequently recovered. Respondent gave the best possible medical treatment and care exercising the required professional skills needed in this case. The post-operative condition was because of her pre-existing renal problems, for which she was also taking treatment. Therefore, the charges of medical negligence and deficiency in service are totally baseless.
4. The State Commission after hearing the parties and considering evidence before it concluded that no case of medical negligence could be established against the Respondent. The relevant part of the State Commissions observations in this regard is reproduced:
In the present case the allegation that due to improper sterilization of instruments the complainant suffered septicaemia has also not been substantiated. The opposite party has clearly set out his stand in the version and in the proof affidavit to the effect that the instruments like Resectoscope Telescope and Cautery Loops were all sterilized by immersion in Cidex solution and that it was carried out in the morning of 26/2/98 and the Electrical chords, suction and irrigation tubes were all sterilized by keeping in Formaline tray in the previous night itself. Cidex is the brand name of Activated Glutaradehyde Solution which is used as a sterilant and high level disinfectant into which sensitive instruments could be immersed to attain fully sterilized conditions prior to surgical procedures. The opposite party had followed all accepted procedures with regard to sterilization of equipments prior to the start of the medical procedure on the complainant.
Even with regard to the post operative surgical care, it has already been noted that the complainant had been given proper medicines and she was also put on I.V. fluids. It is also to be noted that the opposite party had stated that the complainant brought to his attention her previous history of renal disorder and the treatment she was undergoing from Dr. Dhanam only after the operation was completed by him. This fact had not been controverted by the complainant. There was already a history of renal failure and treatment which the complainant had been following, which, for reasons best known to her, she had not disclosed to the opposite party. The complainant has not substantiated her case set out in the complaint. She has not established that the opposite party was negligent and consequently there was deficiency in service on his part while treating the complainant. She has not produced any expert evidence in support of her stand. She has not chosen to controvert the contents of the affidavit of Dr. Sampathkumar who treated her at the Meenakshi Mission Hospital and who has given a clean chit to the opposite party with regard to the treatment given to the complainant in Karthik Nursing Home.
Hence, the present first appeal.
5. Learned counsel for both parties made oral submissions.
6. Learned counsel for the Appellant reiterated that the State Commission erred in concluding that there was no medical negligence whereas it was clearly established that the infection leading to renal failure occurred because the surgical equipments were not properly sterilized and the situation was further aggravated because the electric supply failed four times during the critical surgery. In proof of these contentions, it was stated that prior to the surgery the blood test did not indicate the presence of any bacteria or infection whereas the Blood Culture conducted after the surgery and which takes 3 to 7 days to confirm, clearly indicated that there was infection. Obviously, this occurred during the surgery and because of the non-sanitary conditions in the operation theater and non-sterilized surgical equipments.
He brought to our attention the medical history of the Appellant, which did not indicate that she had any pre-existing problem, apart from the menstrual problems which necessitated the TCER. It was also specifically stated that the epidural anaesthesia being mild, the Appellant was fully conscious during the surgery and, therefore, her observation of power failure is based on facts.
7. Counsel for Respondent on the other hand reiterated that he was a well-qualified doctor, who had conducted several surgeries, and that after the clinical examination and laboratory investigations, the Appellant was diagnosed as suffering from chronic cervicitis with dysfunctional uterine bleeding because of which she underwent TCER, which is a standard management procedure in such cases. The surgery was conducted with properly sterilized state of the art equipments and there was no negligence or deficiency in conducting the surgery and there was also no power failure. During the surgery it was found that the entire Endometrium was badly affected due to infection and it was possible that the infection had spread to the bloodstream earlier and was in a dormant stage since the uterine cavity is not an absolutely sterilized area. Further, this also would explain the subsequent Sepsis which was not due to any negligence in the surgery or non-sterilization of the equipments.
Counsel for the Respondent further stated that the Nephrologist from the Meenakshi Mission Hospital, who had treated the Patient, had filed an affidavit before the State Commission as an expert, in which he clearly stated that the renal failure and other problems encountered by the Patient were not due to any negligence or deficiency in service on the part of Respondent but due to pre-existing endomentrial infection and because of which occurrence of Septicaemia is an inherent and accepted complication of TCER. The State Commission had, therefore, rightly concluded that there was no medical negligence on Respondents part and had rightly dismissed the Appellants complaint.
8. We have heard learned Counsel for both parties and have carefully gone through the evidence on record. Patients admission in Respondents clinic with complaints of irregular menstrual bleeding and related problems, where she underwent TCER surgery, are admitted facts.
It is also a fact that four days following the surgery, she suffered from symptoms of Septicaemia, retention of urine and renal failure, because of which she was referred to another Hospital, wherein she was treated for the same and discharged after recovery.
Appellants contention that the Septicaemia and the renal failure problems occurred because of insanitary conditions in the operation theater as also non-sterilization of the equipments, we note, is not borne out by any independent or credible evidence to prove the same. It is merely Appellants conjecture to explain the subsequent complications.
Apart from this, we agree that a Patient who is under epidural anaesthesia is unlikely to observe during that period that power was disrupted on four occasions during the surgery.
Therefore, this is also based on either conjecture or hearsay and cannot be relied upon. On the other hand, we note from the evidence on record that due care was taken in treating the Patient in respect of the diagnosis as also the medical treatment and the Respondents explanation that the Septicaemia occurred because a pre-existing infection is confirmed by the evidence of an expert, Nephrologist from the Meenakshi Mission Hospital and Research Centre, where the Patient was subsequently admitted, and who stated on affidavit as follows :-
9. it was a known fact that Mrs. V. Bhavani was suffering from chronic cervicitis and endometritis even before TCRE, for over a period of 6 months. She underwent TCRE for removing the infected endometrium. In such a situation, in spite of the reasonable care and skill exercised by the surgeon, there is every possibility that the pre-existing infection could enter into the blood stream through the cut ends of the capillaries (the terminal end of an arteriole which are fine hair-like blood vessels forming a network) in the inner wall of the uterus after the removal of the endometrium. This possibility can neither be fully anticipated nor prevented. In my view this should have been the most probable reason for septicaemia suffered by Mrs. V. Bhavani after TCRE. This septicaemia should have given rise to the other ailments including the acute renal failure suffered by Mrs. V. Bhavani.
10. I submit that the renal problems encountered by Mrs. V. Bhavani was not due to any negligence or deficiency of service on the part of Dr. S. Sivasubramanian; but it is due to the pre-existing endometrial infection and in such a situation occurrence of septicaemia is an inherent and accepted complication of the TCRE. Even when a surgeon exercises best care and skill, such complications do occur. In this case, Dr. Sivasubramanian responded with a sense of urgency and referred Mrs. V. Bhavani for further management to me within time. In fact it is because of this immediate response that we could prevent further deterioration in the clinical condition of Mrs. V. Bhavani thereby saving her life.
This evidence has not either been controverted or challenged by the Appellant, on whom there was onus to prove that there was medical negligence. On the other hand, from the evidence on record as also the expert opinion of the Nephrologist from a Hospital where the Appellant was admitted and in whom she admittedly had full faith clearly confirms that there was no medical negligence or deficiency in service in the medical diagnosis, treatment and post operative care of the Appellant.
9. What constitutes medical negligence is now well established [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be followed: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and
(iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.
10. In the instant case, there is adequate evidence as discussed in the foregoing paras to conclude that on all these counts the Respondent, who was a well-qualified doctor, used his best professional judgment and the required medical skills to diagnose the Appellants illness and thereafter conduct the required surgery and also take due post-operative care, including referring her to a higher medical institution when it was considered necessary. We, therefore, agree with the order of the State Commission that there was no medical negligence in this case and uphold the same.
11. The present first appeal having no merits is, accordingly, dismissed.
No costs.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Mukesh