National Consumer Disputes Redressal
Biswanath Das (Dr.) vs Bijoy Sinha Roy And Ors. on 12 September, 2007
Equivalent citations: IV(2007)CPJ223(NC)
ORDER
K.S. Gupta, J. (Presiding Member)
1. This order will govern the disposal of FA Nos. 462 of 2005, 463 of 2005 and 44 of 2006 which arise out of the same order dated 19.9.1995 of Consumer Disputes Redressal Commission West Bengal, Calcutta.
2. In nutshell, the facts giving rise to these appeals are these. Mrs. Bani Sinha Roy w/o Bijoy Sinha Roy, appellant in FA No. 44 of 2006 (complainant) developed some menstrual problem sometime in the month of June, 1993. She consulted the family physician Dr. Pran Shankar Saha who advised her to consult Dr. Biswanath Das, appellant in FA No. 462 of 2005 (OP No. 1), Gynaecologist. She visited Dr. Das who after physical check up advised her to have ultrasonographic test of the pelvis and some pathological tests. As advised by Dr. Das, Mrs. Bani Sinha Roy got the USG test done which revealed multiple fibroids of varying sizes in uterus. On perusal of that report on 22.6.1993, Dr. Das advised her to undergo Hysterectomy. After a lapse of about 5 months Mrs. Bani Sinha Roy again visited Dr. Das with the complaint of severe bleeding. Dr. Das advised for emergency Hysterectomy and he arranged for operation at Ashutosh Nursing Home. Mrs. Bani Sinha Roy was suffering from high blood pressure and her haemoglobin was around 7 gm% which indicated that she was severe anemic. For increasing haemoglobin, Dr. Das advised Zectofer and Tetvac injections. Mrs. Bani Sinha Roy was admitted in the said Nursing Home on 30.11.1993 to undergo Hysterectomy on 1.12.1993. On 1.12.1993, the operation started around 8.45 a.m. but Mrs. Bani Sinha Roy did not regain consciousness even after lapse of about 1 1/2 hours of the completion of operation. Nursing Home did not have the Intensive Care Unit. Dr. Debasis Sarkar, OP No. 3 booked a bed at Repose Nursing Home and Mrs. Bani Sinha Roy was shifted there at about 2.15 p.m. Even after treatment at Repose Nursing Home, she did not regain consciousness. Since day-to-day medical expense at the said Nursing Home was going beyond the means of the complainant, she was transferred to SSKM Hospital on 6.12.1993 where she eventually expired on 27.1.1994. Thereafter, alleging negligence complaint was filed which was contested by filing separate written versions by the opposite parties.
3. Complaint was dismissed by the State Commission by the order dated 18.8.2003. On FA No. 754 of 2003 being filed by the complainant, the appeal was allowed and case was remanded to the State Commission for being decided after allowing the report of Dr. Apurba Nandy being proved and Dr. Sagarmony Basu being cross-examined vide order dated 6.10.2004 by this Commission. In terms of the impugned order, the complaint was allowed holding OP Nos. 1 and 2 negligent in performing Hysterectomy of the deceased without controlling her high blood pressure and increasing the level of haemoglobin. OP No. 1 was directed to pay compensation of Rs. 3,00,000 while OP No. 2 the compensation of Rs. 2,00,000 to the complainant. Complaint against OP Nos. 3 and 4 was dismissed. Appeal No. 462 of 2005 has been filed by OP No. 1 while Appeal No. 463 of 2005 by OP No. 2 to set aside the impugned order. In FA No. 44 of 2006, the complainant seeks enhancement of compensation.
4. We have heard the parties' learned Counsel. Written submissions have also been filed by them.
On internal page No. 13 of the impugned order, the State Commission observed that the blood pressure of the deceased preceding the day of operation which was 30.11.1993, was 220/110. On internal page No. 15, the State Commission noted that even on the morning of 1.12.1993, before operation the blood pressure was within the range of 220/110. Observations made towards the end on internal page 14 of the order which are material, are reproduced below:
The OPs are relying upon the evidence of their expert Dr. S.M. Basu who has supported their action but he should not be taken as an authority who can proclaim the last word on such a subject. Moreover, his evidence is clear to show that what he says, he says on the basis of authority and he has also made a reference to such books, but unfortunately the citations made from such authorities are only generalisations which cannot and do not appear to cover the context or the perspective of the present case--the special features of the patient which were distinguishing.
5. Notes of OP No. 2, Anaesthetist (copy at pages 85 to 88 in Vol. Ill) notices that on 30.11.1993atabout7.00p.m.theblood pressure of Mrs. Bani Sinha Roy was 180 / 100 mm Hg and the haemoglobin was 7 gm %. Hysterectomy operation was started at about 8.45 a.m. and finished at about 9.45 a.m. Chart showing the blood pressure etc. on 1.12.1993 as reflected at page No. 87 of the notes which is material, runs as follows:
Time Pulselmin. B.P. mg Hg.
8.30 a.m. 120 180/100 9.00 " 120 190/100 9.15 " 92 200/110 9.20 " 96 150/100 9.30 " 80 150/100 9.45 " 76 150/100 10.00 " 76 220/130 10.15 " 76 150/90 10.30 " 76 140/90 10.40 " 76 120/80 10.45 " 76 110/80 10.55 " 76 100/80 11.10 " 76 120/80 11.30 " 76 120/80 11.45 " 76 140/100 12.00 Noon 76 140/100 12.15 p.m. 76 140/100 12.30 " 76 140/102 12.45 " 76 140/100 1.00 " 76 140/1006. At this juncture, it will be profitable to refer to the medical literature relied on behalf of OP Nos. 1 and 2. On permissible limit of blood pressure and level of haemoglobin in a case of surgery in the Book "Clinical Anaesthesiology" by G. Edward Morgan, it is Stated thus --"Surgical procedure on patients with sustained preoperative diastolic blood pressures higher than 110 mm Hg--especially those with evidence ofendorgan damage -- should be delayed until blood pressure is better controlled over the course of several days".
7. In the book "A Practice of Anaesthesia "by Thomas E.J. Healy and Paul R Knight, Seventh Edition, under the sub-heading "Guidelines for management of the hypertensive patient" it is stated that "preoperative management of hypertensive patients should be optimized and maintained. A diastolic blood pressure above 14.7 kPa (110 mm Hg) is considered a contraindication for elective surgery ".
8. In the book "A Synopsis of Anaesthesia" by R.S. Atkinson, G.B. Rushman and J. Alfred Lee, Ninth Edition, under the sub-heading "Hypertension and Arteriosclerosts" it is stated that "the diastolic blood pressure should be below 110 mm Hg".
9. In the Book "Anaesthesia" by Walter S. Nimmo, David J. Rowbotham and Graham Smith, Second Edition, under the sub-heading Haematology, it is stated:
Traditionally, the minimum acceptable haemoglobin concentration has been taken as 10 g/dl. However, the risk of transfusion-associated acquired immune deficiency syndrome (AIDS), although slight compared with that of non-A, non-B hepatitis (Grillner, 1988; lwarson, 1988), has prompted reassessment of this figure (Haljamae & Rosenberg, 1988). Recent studies indicate that a haemoglobin concentration of 7 g/dl provides sufficient reserve in most circumstances (Silberstein et al., 1989, Stehling, 1990).
10. In the "Handbook of Clinical Anesthesia" by/.C. Goldstoneand B.J. Pollard under the subheading "Correction of Anaemia", "What preoperative Hb level is acceptable?", it is noticed thus:
There is no Hb concentration which must be met by all patients in all circumstances. Although the figure of 10 g/dl was generally accepted for a many years, clinical experience, for example with patients in renal failure, suggests that in patients who are otherwise fit surgery may safely be carried out with Hb concentration as low as 6 g/dl.
11. Reference to the said books finds mention in the affidavit filed by Dr. S.M. Basu as also in the order of State Commission. From aforesaid notes of O.P. No. 2 the blood pressure of the deceased on 30.11.1993 and 1.12.1993, it may be seen that on 30.11.1993, day before operation at 7.00 p.m., it was 180/100 mm Hg. Before Hysterectomy operation was started on 1.12.1993 it continued to be the same. Only during the procedure the BP slightly rose to 190/100 at 9.00 a.m. and 200/110 at 9.15 a.m. which was controlled by giving medicines and it came down to 150/100. It was only at 10.00 a.m. that it again rose to 220/130 and, thereafter, came down within the normal limits. To be only noted that increase in BP of 220 /130 was noticed only after the procedure was finished at 9.45 a.m. As rightly pointed out by the learned Counsel of OP Nos. 1 and 2, the BP of the deceased was not 220/110 either on 30.11.1993 or in the morning before operation on 1.12.1993 as noticed by the State Commission on internal page Nos. 13 and 15 of the order. It will not be out of place to refer to the literature cited on behalf of the complainant. In Bailey and Love's Short Practice of Surgery by R.C.G. Russell and others--24th Edition under the chapter Preparing a patient for surgery under the sub-heading Hypertension, it is mentioned thus:
In the absence of renal or cardiac dysfunction, surgical risk is minimally affected by mild hypertension. Those patients with a blood pressure greater than 160 mm Hg systolic or 95 mm Hg diastolic should have elective procedures deferred until the pressure is under control.
12. In the 'Textbook of Surgery' by David C. Sabiston, Thirteenth Edition, it is stated that, indeed, if one could ascertain that no unforeseen blood losses or inadvertent hypoxia would occur, a patient could expect to safely undergo an elective operation with a distinctly low hemoglobin concentration. However, the risk of one of these unforward events is greater than the hazard of transfusion. Thus, patients being prepared for operation who have an anemia commonly associated with chronic disease should have replacement of the red cell mass up to 10gm per 100 ml.
13. In chapter 20 of the Book "A Practice of Anaesthesia" by H.C. Churchill- Davidson, Fourth Edition, it is stated that -- It is generally held that before an elective operation such as hysterectomy or prostatectomy a haemoglobin concentration of at least Wg. 100ml. (g/dl) is the minimum acceptable.
14. In the article 'Essentials of Surgery' by Dr. Sanjay Azad under the sub-heading 'Anaemia' it is stated--"Acceptable level of haemoglobin for anaesthesia lias been consideredas 10mg%. However haemoglobin levels of 8 mg% are now considered adequate, in a fit individual with an expected blood loss less than 500 ml.
15. At this stage, reference to paras 19 to 23 of the decision in Jacob Mathew v. State of Punjab and Anr. need be made. Same read as under:
19. An oftquoted passage defining negligence by professionals, generally and not necessarily confined to doctors is to be found in the opinion of Mc. Nair, J. in Bolam v. Friern Hospital Management Committee WLR at p. 586 in the following words: (AA ER p. 121 D-F):
Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have the special skill. A man need not possess the highest expert skill.... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth and Percy, ibid., para 8.02).
20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley V. Binnie summarized the Bolam test in the following words: (Con LR p. 79) From these general statements it follows that a professional mail should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet. (Charlesworth and Percy, ibid, para 8.04)
21. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (4th Edn.,Vol 30, para 35):
35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is on no professional man of ordinary skill would have taken had he been acting with ordinary care.
The above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth and Percy in their celebrated work on negligence (ibid, para 8.110).
22. In the opinion of Lord Denning, as expressed in Hucks V. Cole a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
23. The decision of the House of Lords in Marnard v. West Midlands Regional Health Authority by a Bench consisting of five Law Lords has been accepted as having settled the law on the point by holding that it is not enough to show that there is a body of competent professional opinion which considers that the decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. Lord Scarman who recorded the leading speech with which the other four Lords agreed quoted (at All ER p. 638 f) the following words of Lord President (Clyde) in Hunter V. Hanley, observing that the words cannot be bettered: (SLT p. 217) In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with ordinary, care....
Lord Scarman added: (All +ER p. 638g-h) A doctor who processes to exercise a special skill must exercise the ordinary skill of his specialty. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A Court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence.
His Lordship further added that: (All ER p. 639 d) A Judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficiency to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred.
16. On basis of medical literature referred to above relied upon on behalf of complainant, it was argued by the learned Counsel of the complainant that it being a case of elective surgery, the OP Nos. 1 and 2 should not have performed Hysterectomy operation of the deceased who was having high blood pressure and lower level of Hb without controlling the high BP and increasing the Hb level and the State Commission had, thus, rightly found both these OPs to be negligent in treating the deceased. According to the learned Counsel, in the facts and circumstances of case, the compensation as awarded by the State Commission deserves to be enhanced. On the other hand, it was contended by the learned Counsel of OP Nos. 1 and 2 that the BP and haemoglobin level of the deceased on 30.11.1993 and 1.12.1993 was within permissible limits as noticed in the literature filed by them and the State Commission acted erroneously in returning the finding of OP Nos. 1 and 2 to be negligent in treating the deceased. Reliance was placed on Jacob Mathew's case. Aforementioned medical literature submitted by OP Nos. 1 and 2 which was also before the State Commission, would show that the surgical procedure could be done on a patient with diastolic blood pressure of not more than 110 mm Hg and haemoglobin concentration of even upto 6 g/dl. However, the opinion given in medical literature submitted on behalf of complainant contradicts that statement. To be only noted that on 30.11.1993 and before start of procedure on 1.12.1993, the BP of the deceased was 180/100. In view of the statement made in Halsbury's Laws of England (para 21) and the decisions referred to inpara No. 23 in Jacob Mathew's case the OP Nos. 1 and 2 who acted in accordance with the practice accepted as proper by the authors of aforesaid books relied on their behalf cannot be held guilty of negligence. Judge's preference of the opinion expressed in the books relied on behalf of complainant over the opinion given in the books cited on behalf of OP Nos. 1 and 2 would not be sufficient to establish negligence against OP Nos. 1 and 2. Obviously, the approach of the State Commission, extracted above, in discarding the said medical literature filed on behalf of the OPs and in declining to accept the evidence of Dr. S.M. Basu, expert, is erroneous. In the criminal case, the opposite parties have been acquitted and the opinion as to cause of death of Mrs. Bani Sinha Roy given by Dr. Apurba Nandy was not accepted by the Criminal Court. Both the OPs are highly qualified. It may be stated that according to OP No. 1, the procedure performed was not elective as the deceased was having severe bleeding. Finding returned by the State Commission holding OP Nos. 1 and 2 to be negligent cannot be legally sustained.
17. For the foregoing discussion, while allowing Appeal Nos. 462 of 2005 and 463 of 2005, the order dated 19.9.2005 is set aside and complaint dismissed. FA No. 44 of 2006 filed by the complainant is dismissed. No order as to cost.