National Consumer Disputes Redressal
Dr. D.R.K. Prasad vs Smt. J. Janaki & Ors. on 27 May, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 289 OF 2009 (Against the Order dated 25/09/2008 in Complaint No. 9/2003 of the State Commission Andhra Pradesh) 1. DR. D.R.K. PRASAD M/s. Prime Hospital, Plot No.4, Mythrivihar, Behind Mythrivanam Building, Ameerpet Hyderabad - 500 038 ...........Appellant(s) Versus 1. SMT. J. JANAKI & ORS. W/o Sri J.Atma Ram, Special Assistant, State Bank of Hyderabad, Masab Tank, Hyderabad, R/o H.No. 12-2-418/3/38 (1425) Vishwas Nagar, Gudimalkapur Hyderabad - 500 028 2. M/S. YASHODA SUPER SPECIALITY HOSPITAL Rep. by its Executive Director, Rajbhavan Road, Somajiguda Hyderabad - 500 082 3. DR. V. NARESH (SURGEON) S/o V. Laxmaiah, R/o H.No. 6-1-132/61, Padmarao Nagar Secunderabad A.P. - 500 016 4. M/S. NEW INDIA ASSURANCE COMPANY LTD. Rep. by its Manager, D. No. 5-2-174/2, II Floor, Madhan Mohan Building, R.P. Road Secunderabad 5. M/S. NEW INDIA ASSURANCE COMPANY LTD. Rep. by its Manager, 206/207, Post Box No. 1708 Park Lane Secunderabad 6. INDIAN MEDICAL ASSOCIATION Rep. by its Secretary, A.P. State Branch Under Professional Protection & Welfare Scheme IMA Building, II Floor, Isamia Bazar Hyderabad - 500 027 ...........Respondent(s)
BEFORE: HON'BLE DR. B.C. GUPTA, PRESIDING MEMBER
For the Appellant : For Yashoda Hospital : Mr. Y. Rajagopala Rao, Advocate
For Smt. J. Janaki : Mrs. K. Radha, Advocate
For Dr. D.R.K. Prasad : Mr. Subba Rao, Advocate
For I.M.A. : Mr. Bharat Kumar, Advocate with
Mr. T. Bhaskar Gowtham,
Advocate
For New India Assurance Co.: Mr. A.K. Prasad, Proxy Counsel
for Dr. Sushil Kumar Gupta,
Advocate For the Respondent :
Dated : 27 May 2016 ORDER
These three appeals as detailed in the heading above, have been filed against the impugned order, passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad, (hereinafter referred as 'State Commission') dated 25.9.2008 in consumer complaint no. CD-09/2003, Smt. J. Janaki vs. Yashoda Super Speciality Hospital and others, vide which, while partly allowing the complaint, the opposite parties (OPs no.1 to 3) were directed to pay a sum of Rs.3 lakhs to the complainant alongwith Rs.5,000/- as cost of litigation. The case against the OPs no.4 to 6 was ordered to be dismissed. FA No.152/2009 has been filed by OP-1, M/s. Yashoda Super Speciality Hospital and OP-3, Dr. V. Naresh, whereas FA No.289/2009 has been filed by OP-2, Dr. D.R.K. Prasad, pleading for dismissal of the said complaint. FA No.356/2009 has been filed by the complainant, J. Janaki, seeking enhancement of the compensation awarded to Rs.15,50,702/-, alongwith interest.
2. The facts of the case are that the complainant, J. Janaki had pain in her stomach on 1.10.2001, whereupon she went to Premier Hospital, Hyderabad for treatment, where Dr. Mahesh Marda detected that she had stones in the gallbladder, which were required to be removed by surgery. He prescribed some medicines to the complainant for temporary relief. The complainant again felt pain on 16.8.2002, when she went to the same doctor, who suggested her to go for surgery for removal of stones in her gallbladder. She went to OP-1, Yashoda Super Speciality Hospital on 2.9.2002 to get operated for Laparoscopic Cholecystectomy. The OP-2, Dr. D.R.K. Prasad advised her that surgery was to be performed immediately and for that purpose, he arranged the services of OP-3, Dr. V. Naresh, who conducted the operation on 4.9.2002. It has been stated that Dr. V. Naresh removed the gallbladder itself, without informing her about the removal of gallbladder. After the operation, when she was brought back to her room in the OP-1 Hospital, she felt increasing pain in her stomach, which started bulging. It has been alleged that there was no post -operative care by the OPs, rather they discharged her from the hospital on 7.9.2002, although she was having persistent pain. The operating surgeon, Dr. V. Narersh never came to attend to her. The OP-2 Dr. D.R.K. Prasad asked her to go to Malakapet Branch of the OP-1 Hospital to meet Dr. V.Naresh. She and her husband went to that hospital on 11.9.2002, but the said doctor told them that everything was alright. The complainant says that one of their family friends brought her to another doctor Mr. Ashok Rao, who advised her to get admitted in Global Hospital, where she went on 12.9.2002. After performing certain tests, she was told by the doctors at Global Hospital that during the previous operation, staple was fixed to the bile duct, which connects the liver to stomach instead to gallbladder duct and due to wrong fixing of the staple, the duct of liver got damaged and bile juice started oozing into the stomach and caused infection. The doctor advised that Biliary Peritonitis -post cholecystectomy bile duct injury operation was to be performed to correct the same, and that, it was known as Hepatico Jejunostomy. The said operation was performed on 14.9.2002 and she had to be shifted to the ICU, where costly medicines were administered. The complainant was informed by various doctors, that there was negligence and callousness on the part of Dr. D.R.K. Prasad and Dr. Naresh in wrongly fixing of staple at the time of operation. The complainant filed the consumer complaint in question, seeking damages amounting to Rs.15,50,702/- on account of alleged medical negligence on the part of OPs. It was also stated that because of her medical condition, the complainant was not able to attend some interview in the Bank, by which, she could have been promoted in her service. It is also stated that looking at her condition, her mother got a heart attack and had to be admitted in Medwin Hospital.
3. The complaint was resisted by the OPs by filing a written statement before the State Commission, in which they denied the allegations against them and stated that they had explained to the complainant that she was suffering from acute cholesystitis and required removal of gallbladder with the stones, as she had the tendency of getting repeated infections. She and her husband signed the consent form for surgery, for which she was admitted in the hospital on 2.9.2002 and the date of operation was fixed on 4.9.2002. It is also stated that it was explained to the complainant and her attendants that Laparoscopic Cholecystectomy connotes the removal of gallbladder with stones and there could be post operational complications. According to OP-1 to 3, her condition after the operation was stable, and there was no complaint of stomach bulging. Dr. D.R.K. Prasad was making her check-up at regular intervals and she was attended by OP-3 Dr. Naresh also on 6.9.2002 and advised discharge on 6.9.2002 itself. On the request of the attendants of the complainant, she was kept in the hospital for one more day and discharged on 7.9.2002, when her condition was stable and comfortable and there was no complaint of pain in the stomach or any discomfort. The complainant came to the OP-1 hospital on 11.9.2002 for removal of sutures and at that time also, her condition was found to be stable. She went to Yashoda Hospital, Malakpet also to meet OP-3, where she was examined with full attention and it was found that there was no abnormal findings of the abdomen. However, OP-3, observing yellowish discoloration of eyes and suspecting jaundice, advised the complainant to undergo LFT and UGI Endoscopy tests. Despite that advice, the complainant was reluctant to get the tests done. OP-1 to 3 stated that they were unaware of the subsequent events that had taken place at the Global Hospital and that, there was no negligence etc. on their part. The OP also stated that the hospital as well as the doctors were insured with the New India Assurance Company Ltd. and the said Company should also have been impleaded as party in the case.
4. The State Commission, vide impugned order, partly allowed the complaint and directed the OP-1 to 3 to pay a sum of Rs.3 lakhs as compensation alongwith Rs.5,000/- as litigation cost. Being aggrieved against the said order, OP-1 to 3 as well as the complainant have filed the appeals in question, before this Commission.
5. During hearing before me, the learned counsel for the appellant stated that removal of gallbladder did not amount to any negligence on their part. He also stated that during the said operation, there was possibility of bile duct rupture as could be made out from the medical literature on the subject. Learned counsel has drawn attention to an article published in the 'American Journal for Surgery (2009)197, 829-832 with the title, "Is damage to the common bile duct during laparoscopic cholecystectomy an inherent risk of the operation?" . Learned counsel stated that injury to the common duct through such operation was inherent risk of the operation and it is mentioned in the said article that the person should be fully informed of this potential complication. According to the OPs, they explained everything to the complainant and her attendants, whereafter they had given their consent. Learned counsel also stated that the OPs were covered by the insurance policy and hence, the liability to make payment to the complainant should be on the insurance company. Learned counsel also stated that the State Commission had considered all aspects of the case, including the expenditure incurred by the complainant and hence, no case was made out for any enhancement in the amount awarded by it.
6. The learned counsel for the complainant on the other hand, stated that in the medical literature "Gallstones" it had been made clear that if any of the bile ducts remain blocked for a significant period of time, damage or infection can occur in the gallbladder, liver, or pancreas. Left untreated, the condition can be fatal. Warning signs are a serious problem like fever, jaundice and persistent pain. He stated that on examination, OP-3 found the possibility of jaundice; still they did not make efforts to get any test done. The complainant was, therefore, entitled to get the full amount as stated in the complaint.
7. The learned counsel for the insurance company stated that they had issued insurance policies for the hospital and the doctors, but the insurance company could make payment only, if claims were filed by the insured with them. Under the given circumstances, the OP should pay to the complainant first and then they could file claim with the insurance company, as per procedure.
8. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.
9. The delay in filing these three appeals has already been condoned, vide order of this Commission dated 17.9.2009.
10. The basic point for consideration in the present case is, whether there was any negligence on the part of OP-1 hospital and OP-2 and OP-3 doctors in the treatment of the patient, when she approached them for the said surgery. From the facts and circumstances on record, it is made out that following her surgery at OP-1 hospital after examination by OP-2 and OP-3 doctors, the complainant still had to go to the second hospital i.e., Global Hospital for her further intensive treatment, which gives rise to safe presumption that the patient was in bad condition, after the treatment at OP-1 hospital. There is statement of Dr. K. Ravindernath, Managing Director of the Global Hospital before the Advocate Commissioner, in which the said doctor stated that the patient was admitted in Global Hospital on 12.9.2012 with fever, pain, abdomen distension and jaundice. After conducting various tests upon her, they found disruption of common bile duct (CBD) at the level of cystic duct. The bile was leaking at CBD into abdominal cavity. They performed the operation on 14.9.2002, called 'Hepatico Jejunostomy' i.e. joining of bile duct to small intestine directly to stop bile leakage. The patient had to remain in the Global Hospital from 12.9.2002 to 17.9.2002 and during that period, she was in Intensive Care Unit for about 3 days. The patient was again admitted to their hospital on 17.12.2003 with recurrent biliary structures, which was operated again and through the intestinal loop and they dilated narrowing (strictures). The said doctor was cross-examined by the counsel for OP also, in which he stated that complications were associated with Laparoscopic Cholecystectomy operation.
11. In nut-shell, the defence taken by the OPs says that complication could occur during the procedure performed on the complainant and hence, the allegation of medical negligence against them was not true. However, this version of the OPs stands belied from the facts stated by them in the written statement. It has been categorically stated that both the doctors OP-2 and OP-3 found the patient to be in a stable, comfortable condition and hence, they decided to discharge her on 6.9.2002 itself, but following the request of the attendants of the patient, they kept her for one more day in the hospital and discharged her on 7.9.2002. It cannot be believed by any stretch of imagination that if the condition of the patient was stable and comfortable, then how she had to pass through the subsequent events and then get admitted in the second hospital, where further surgery was done. It is very clear, therefore, that the OPs miserably failed to manage the condition of the patient, following the operation done by them for the removal of stones from the gallbladder or the gallbladder itself. The State Commission in the impugned order have carried out detailed analysis of the facts and circumstances of the case and discussed the case law on the subject. It has been held in a number of landmark judgments made by the Hon'ble Supreme Court of India and this Commission that in the cases involving medical negligence, the standard of care expected from medical professionals has to be that of ordinary persons, possessing ordinary skills, In Jacob Mathew vs. State of Punjab and another reported in (2005) 6 SCC 1; their lordships carried out a detailed analysis of the doctrine of negligence in the context of medical profession. They also referred to the principle of res ipsa loquitur in the said case. In the facts and circumstance of the present case also, applying the principle of res ipsa loquitur, it is very clear that the patient was discharged by the OP-1 Hospital, even when her condition was not stable and she had to be admitted almost immediately in the other hospital for further treatment. The said hospital detected, after carrying out certain tests that there was negligence by the OPs, as there was disruption of bile duct at the level of cystic duct, which resulted in leakage of bile into abdominal cavity. It is very clear, therefore, that the allegation of medical negligence against OP-1 to 3 stands amply proved from the evidence on record. The State Commission, after carrying out a detailed analysis of the expenditure made by the complainant, rightly came to the conclusion that a sum of Rs.3 lakhs should be paid to the complainant by the OP-1 to 3 with cost of Rs.5,000/-.
12. On a careful consideration of the points raised in the appeals before me, I do not find any justification for making any modification in the order passed by the State Commission, in so far as payment of compensation is concerned. It is held, therefore, that the said order does not suffer from any illegality, material irregularity or jurisdictional error. The impugned order is, therefore, upheld. All the three appeals are ordered to be dismissed with no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER