State Consumer Disputes Redressal Commission
Dr. Pramod Naidu Son Of Late S. R. Naidu, ... vs 1.Smt. Charlotte Staunton, Wife Of ... on 5 June, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. A/383/2014 (Arisen out of Order Dated 15/10/2013 in Case No. CC/1068/2010 of District Hyderabad-II) 1. Dr. Pramod Naidu Son of Late S. R. Naidu, Asst. Prof. in Department of Surgery, Surgical Unit VI, Gandhi Hospital, Musheerabad, Hyderabad ...........Appellant(s) Versus 1. 1.Smt. Charlotte Staunton, Wife of Maxwell Staunton, Aged about 61 Years, Occ Teacher R.o. H.No.29.1407 by 4 by 9, Deendayal Nagar, Kakatiya Nagar, Neredmet X Road, Hyderabad 2. 2. Gandhi Hospital, Musheerabad Hyderabad Rep. by its Superintendent 3. 3. Dr. Uma Maheswara Rao, Prof. of Surgery Surgical Unit IV, Gandhi Hospital, Musheerabad, Hyderabad ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 05 Jun 2017 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD F.A.No. 383 OF 2014 AGAINST C.C.NO.1068 OF 2010 DISTRICT CONSUMER FORUM-II HYDERABAD Between Dr.Pramod Naidu S/o late S.R.Naidu Asst. Prof. in Department of Surgery, Surgical Unit-VI, Gandhi Hospital, Musheerabad, Hyderabad Appellant/opposite party no.3 A N D Smt Charlottee Staunton W/o Maxwell Staunton Aged about 61 years, Occ: Teacher R/o H.No.29-1407/4/9, Deendayal Nagar, Kakatiya Nagar Neredmet X Road, Hyderabad Respondent/complainant Gandhi Hospital Musheerabad, Hyderabad Rep. by its Superintendent Dr.Uma Maheswara Rao Prof. of Surgery, Surgical Unit-IV Gandhi Hospital, Musheerabad Hyderabad Respondents/opposite parties no.1&2 Counsel for the Appellant Sri K.R.Koteswara Rao Counsel for the Respondents No.1 Served Counsel for the Respondents No.2&3 Sri Y.Kondal Reddy QUORUM : HON'BLE SRI JUSTICE B.N.RAO, PRESIDENT & SRI PATIL VITHAL RAO, MEMBER
MONDAY THE FIFTH DAY OF JUNE TWO THOUSAND SEVENTEEN Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is an appeal filed by the opposite party no.3 aggrieved by the orders of District Consumer Forum-II, Hyderabad dated 15.10.2013 made in CC No.1068 of 2010 in partly allowing the complaint directing the opposite parties no.1 to 3 to pay an amount of Rs.1,00,000/- towards medical expenses, compensation towards mental agony and expenses together with costs of Rs.2,000/-.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that the complainant was admitted in opposite party no.1 hospital on 28.08.2007 with the complaint of abdomen pain. After examining by Dr.A.Deepak Das it was found that there were stones in the right gallbladder and conservative treatment was given to the complainant and she was discharged on 01.09.2007. The complainant due to abdominal pain again on 29.07.2008 was admitted in the opposite partyno.1 hospital and the opposite party no.2 suggested to undergo laparoscopic surgery. On 11.08.2008 the opposite partyno.2 performed laparoscopic cholecystectomy. During the course of operation, opposite party no.2 converted the laparoscopic surgery into open surgery but the opposite party no.2 did not inform what type of surgery is conducted and the complainant had a biliary leak from the day on of the operation from the drain as well as from the wound. After three days endoscopy test was done, the bile leak was stopped after 10 days. The complainant was discharged from the hospital on 06.09.2008. Again on 13.09.2008 the complainant visited the opposite party hospital for follow up treatment then opposite party no.2 informed that the operation was successful and that the complainant would be free from abdomen pain. Thereafter as the complainant noticed jaundice, she on the advice of Dr.T.Ravi Shankar undergone ultrasound scan of abdomen wherein it was diagnosed as "moderately dilated intra hepatic biliary radicals due to stricture at confluence of hepatic ducts at the proximal level". The complainant came back to Hyderabad and visited KIMS Hospital wherein the complainant was undergone MRI choliangiopancreatogrphy test on 15.04.2009. The said test gave an impression " status post Cholecystectomy. Abrupt cut-off of common hepatic duct just beyond the confluence with dilated right and left hepatic duct and intrahepatic biliary dilation". As per the reports at the time of performing Cholecystectomy by oppsotie party no.2, the common hepatic duct just beyond the confluence was abruptly cut-ff. Due to the said fault on the part of opposite party no.2 the biliary hepatic structure developed and the jaundice was also developed.
4. It was further case of the complainant that on 29.04.2009 the complainant was admitted in NIMS and the complainant was diagnosed that she was suffering from Benign Biliary Structure (Type-II) Post Cholecystectomy. On 04.05.2009 the consultant surgeon Dr.N.Bheerapa performed hepato-jejunostomy. During the course of operation he noticed that the transverse colon and omentum were adherent to subcoaspal scar. The duodenum was adherent to cystic fossa and had an attempted fistulization to the stump of transacted common hepatic duct (CHD), CHD was transacted 0.5cm below biliary confluence and was fistulizing into D-1. Right hepatic artery was transacted. RHD was narrowed as compelled to LMD. The complainant was discharged with an advice to come for review on 22.05.2009. The opposite party no.2 committed mistake while performing laparoscopic Cholecystectomy on 11.08.2008 as he negligently "abruptly cut off the common hepatic duct just beyond the confluence". Therefore due to negligent act of the opposite party no.2 the complainant mentally and physically suffered a lot and the complainant spent about Rs.25,000/- towards medicines, investigation at Gandhi Hospital, KIMS, NIMS, Karimnagar, Coimbatore etc. Hence, the complaint praying to direct the opposite parties to pay compensation of Rs.3,00,000/- and to reimburse Rs.25,000/- towards medical expenses and costs of Rs.25,000/-.
5. Opposite party no.1 did not make its appearance before the District Forum.
6. Opposite party no.2 resisted the case and contended that initially the complainant was admitted in opposite partyn.1 hospital on 28.08.2007 under the are of Dr.A.Deepak Raj and his team under the surgical unit-II and she was managed conservatively for calculous cholelithiasis and was discharged on 01.09.2007 with an advice to come back after three weeks for review. However, she did not turn back for review as advised by the doctors. The complainant again visited to opposite epartyno.1 hospital on 29.07.2008 with a complaint of abdominal pain for the past three days and she was admitted on the same day into the opposite party no.1 hospital. The disease was diagnosed s calculous cholelitiasis and a laparoscopic cholecystectomy was conducted by the doctors i.e., Dr.B.Raju and Dr.S.Nagesh on 11.08.2008 after bringing her blood pressure under control while conducting laparoscopic surgery as there was bleeding, the opposite partyno.2 was informed about the same and then he had observed the condition of the patient and immediately requested the opposite party no.3 to convert the laparoscopic surgery into open surgery to arrest the bleeding immediately in order to save the life of the patient the opposite partyno.2 was engaged in another operation at that point of time the opposite partyno.3 converted the laparoscopic surgery into open surgery and arrested the bleeding from an anomalous artery and saved the patient i.e., complainant from life risk. Since there was bleeding form an anomalous artery the laparoscopic cholecystectomy was converted into open surgery not withstanding she had lot of adhesions including that to the stomach wall. Therefore, the laparoscopic surgery had to be necessarily converted into open surgery to save the life of the complainant. The operation was successfully completed and the patient was saved from life threat and as such there was no negligence on the part of the doctors attended to the complainant. Post operatively the patient had minimal bile collection suggestive of injury to biliary free however, it did not merit immediately intervention. The patient was managed conservatively for the bile leak. A subsequent surgery was planned for the patient at opposite party no.1 hospital but unfortunately the patient refused to undergo surgery and therefore requested for discharge from opposite partyno.1 hospital and as such opposite party no.1 completed to discharge the patient on 06.09.2008 with an advice to attend to hospital for follow up and the complainant had visited the opposite epartyno.1 hospital on 13.09.2008 and on examination it was found that there is no bile discharge and wound healed. Hence, conservative treatment was administered to her and later on she did not turn up for reviews though advised. Therefore there was no negligence on the part of opposite parties.
7. It is further contended that the son of the complainant was informed about the conversion of laparoscopic surgery into open surgery and asked for his consent for transfusion of blood if necessary. The consent for transfusion of blood was obtained in writing from the complainant's son on 11.08.2008. Hence, there was no negligence on the part of the opposite party no.2 and as such prayed for dismissal of the complaint.
8. The opposite partyno.3 resisted the case contended the similar contentions as mentioned in opposite party no.2 and in addition the opposite party no.3 contended that as the complainant was diagnosed as calculus cholelithiasis and a laparoscopic cholecystectomy was conducted by the doctors, Dr.B.Raju and Dr.S.Nagesh on 11.08.2008 after bringing her blood pressure under control. While conducting laparoscopic surgery as there was bleeding opposite parytno.2, the unit head was informed about the same and he observed the condition of the patient and immediately he requested opposite partyno.3 to assist Dr.Raju to convert the laparoscopic surrey into open surgery to arrest the bleeding immediately in order to save the life of the patient. Then they converted the laparoscopic surgery into open surgery and arrested the bleeding from anomalous artery and saved the life of the patient from life risk. Since there was bleeding from anomalous artery the laparoscopic surgery had to be necessarily converted into the open surgery not withstanding she had lot of adhesions including that to the stomach wall. Therefore the laparoscopic surgery had to be necessarily converted into open surgery to save life of the complainant and there was no negligence on the part of the doctors who attended the patient/complainant. Post operatively the patient was managed by opposite partyno.2, Head of the Unit and Dr.Raju as after the operation, he was promoted as Professor of Surgery, Osmania Medical College and transferred. Hence, the opposite party no.3 prayed for dismissal of the complaint.
9. During the course of enquiry before the District Forum, in order to prove his case, the Complainant filed her evidence affidavit and the documents Ex.A1 to A9 while the opposite parties no.1 and 2 have filed their respective affidavits and got Case Sheet marked as Ex.B1
10. The District Forum after considering the material available on record, partly allowed the complaint bearing CC No1068 of 2010 by orders dated 15.10.2013 as stated in para 1 supra.
11. Aggrieved by the said decision, the opposite party no.3 filed this appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum ought to have dismissed the complaint on the ground of non- joinder of proper parties since it was clearly established that the initial surgery was done by Dr.B.Raju and Dr.S.Nagesh. The District Forum erred in holding the appellant as guilty of deficiency in service and negligent when the opposite party no.3 did not perform surgery but the surgery was performed by Dr.B.Raju and Dr.S.Nagesh. The District Forum erred in coming to the wrong conclusion that the opposite parties no.2 and 3 were negligent even though they did not perform the operation in the first instance. The District Forum could not have come to a final conclusion on the basis of Ex.A7 when the Radiologist who had given the report was not examined at all and further the Radiologist is not the surgeon to state as to whether there can be a negligent cut or an accidental cut which can be made for such operations. There is no even the evidence of Dr.N.Bheerapa, who is said to have performed hepato-jejunostomy. Hence, the opposite party no.3 prayed to allow the appeal.
12. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
13. The undisputed facts are that the complainant suffered from abdominal pain for some time. On ultrasonography of the abdomen, she was diagnosed with stones in her gallbladder. The complainant approached the OP No.1 Hospital for consultation on this problem. The opposite party no.2 advised laparoscopic surgery and fixed it for 11.08.2008. Some necessary preliminary tests were also advised. The surgery was conducted on 11.08.2008 by the opposite party no.2 as scheduled and during the course of surgery, the opposite party no.2 converted the laparoscopic surgery into open surgery and the patient was discharged on 06.09.2008 with the advice of follow-up visit on 13.09.2008. Accordingly the complainant visited the opposite party no.2 and he informed that the operation was successful and that the complainant would be free from abdomen pain.
14. The main allegation of the complainant is that as the complainant developed the symptoms of jaundice, pruritus and fever, she visited her daughter where she consulted Dr.T.Ravi Sankar who after performing ultrasound scan it gave an impression "moderately dilated intra hepatic biliary radicals due to stricture at confluence of hepatic ducts at the proximal level". The complainant came back to Hyderabad and consulted Dr.Prasad Behra at Poulomi Spuper Specialty Hospital where Dr.Prasad diagnosed that the complainant developed obstructive jaundice with symptoms at times nagging and that the LFT showed a raised ALP with mild Hyper Bilurubinaemia and that the US abdomen showed a stricture at confluence with proximal dilation. The complainant visited KIMS, Secunderabad wherein Dr.Y.Nagarjuna refrrd the complainant to undergo MR Choliangiopancreatography test on 15.04.2009. The said test gave an impression " Status Post Choecystectomy Abrupt cut-off of common hepatic duct just beyond the confluence with dilated right and left hepatic duct and intrahepatic biliary dilation". It means at the time of performing Cholecystectomy by opposite partyno.2 the common hepatic duct just beyond the confluence was abruptly cut-off. Due to the said fault on the part of opposite party no.2 the biliary hepatic stricture developed and the jaundice was also developed. The opposite partyno.2 committed mistake while performing Laparoscopic Cholecystectomy on 11.08.2008 by cutting the common hepatic duct just beyond the confluence due to the said reason the opposite partyno.2 in the middle of laparoscopic surgery converted it into open surgery. Because of the improper surgery, it resulted into bile-leak, hepatic duct stricture, development of jaundice, necessitating second surgery Hepato-jejunaustomy at NIMS on 4.5.2009.
15. On the other hand the appellant/opposite partyno.3 contended that the disease was diagnosed as calculous cholelithiasis and a laparoscopic cholesystectomy was conducted by the doctors Dr.B.Raju and Dr.S.Nagesh on 11.08.2008 after bringing her blood pressure under control. While conducting surgery as there was bleeding opposite party no.2 was informed about the same and he observed the condition of the patient and immediately he requested the appellant/opposite partyno.3 to assist Dr.Raju to convert the laparoscopic surgery into open surgery to arrest the bleeding immediately in order to save the life for the complainant. They converted the laparoscopic surgery into open surgery and arrested the bleeding from anomalous artery and save the patient/complainant from life risk. Since there was bleeding from anomalous artery the laparoscopic surgery had to be necessarily converted into open surgery, notwithstanding she had lot of adhesions including that to the stomach wall. Therefore, the laparoscopic surgery had to be necessarily converted into open surgery to save the life of complainant. It is not out of place to mention here that there is a possibility of open surgery in any laparoscopic surgery to an extent of 5% to 10% and the patient is explained about the same. Therefore the operation was successfully completed and the patient was saved from life threat and as such there was no negligence on the part of the doctors who attended on the patient/complainant.
16. The learned counsel for the complainant on the other hand, stated that while performing laparoscopic cholecysteomy on 11.08.2008 the opposite party no.2 committed mistake by negligently cutting the common hepatic duct just beyond the confluence due to which the complainant was admitted in NIMS where Dr.N.Bheerapa performed hepato-jejunostomy and was discharged wth an dvice to come for review on 22.05.2009. All the complications developed in the complainant only because of the negligent and lack of care, lack of proper skill on the part fo the opposite parties and due to which the complainant was subjected to serious inconvenience, hardship and mental agony therefore the complainant was, therefore, entitled to get the full amount as stated in the complaint.
17. 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 other hospitals 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. T.Ravishanker, Consultant Gastroenterologist & Endoscopist, Coimbatore referring the complainant to Dr.Venkat as the complainant is a case of stricture common hepatic duct for favour of ERCP. , After conducting ultrasound Scan of Abdomen dated 28.01.2009 in Best Scan Centre it was found it was found " moderately dilated intra hepatic biliary radicals due to stricture at confluence of hepatic ducts at the proximal level". She consulted Poulomi Super Specialty Hospital, Secunderabad where she was diagnosed that she developed obstructive jaundice with symptoms at times nagging and that the LFT showed a raised ALP with mild Hyper Bilurubinaemia and that the US abdomen showed a stricture at confluence with primal dilation. She visited KIMS Hospital where Dr.Y.Nagarjuna referred the complainant to undergo MR Choliangiopancreatogography test which gave an impression " status post Cholecystectomy Abrupt cut-ff of common hepatic duct just beyond the confluence with dilated right and left hepatic duct and intrahepatic biliary dilation. It means at the time of performing cholecystectomy by oppsoti eparty no.2 the common hepatic duct was cut off due to the said fault the biliary hepatic stricture developed and the jaundice was also developed. Thereafter the complainant was admitted at NIMS where Dr.N.Beerappa performed hepato-jejonostomy and relieved of all the complications created by the opposite parties.
18. 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 opposite parties stand belied from the facts stated by them in the written statement. It has been categorically stated that both the doctors opposite party no.2 and opposite party no.3 found the patient to be in a stable, comfortable condition and hence, they decided to discharge her on 01.09.2007 itself. 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 various hospitals, where further surgery was done. It is very clear, therefore, that the opposite parties 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. 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 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 the complainant was suffering from Benign Biliary Stricture (Type-II) post cholecystectomy . Benign strictures develop due to damage to the bile ducts during surgery or trauma to the abdomen; a recurring condition, such as pancreatitis or bile duct stones; or a chronic disease, such as primary sclerosing cholangitis (PSC).
19. We are conscious of the fact that vicarious liability however, cannot be mixed up with the primary liability of the Hospital when there is breach of its own duty. Primary liability of the Hospital remains if it is deficient in service like failure to supply the equipment necessary for the treatment of the patient. Therefore is no difficulty in holding that Hospital would be vicariously liable when doctors or the Hospitals staff on its role is negligent or deficient in providing services. In our view, however, Hospital would be even liable when negligence is alleged against consultants. Patient would not know the arrangement between the doctor and the hospital when he is being treated in the Hospital by the doctor concerned. It is settled law that hospital is vicariously liable for the acts of the doctor vide Savita Garg Vs. National Heart Institute, (2004) 8 SSC 56, it was also followed in case of Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 .
20. It is very clear, therefore, that the allegation of medical negligence against opposite parties no.1 to 3 stand amply proved from the evidence on record. The District Forum, after carrying out a detailed analysis of the expenditure made by the complainant, rightly came to the conclusion that a sum of Rs.1,00,000/- should be paid to the complainant by the opposite parties no.1 to 3 with cost of Rs.2,000/-. . 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. Accordingly, we answer the point framed for consideration at paragraph No.12, supra, against the Appellant and in favour of the respondent no.1/complainant.
In the result the appeal is dismissed confirming the order of the District Forum. Time for compliance four weeks. There is no order as to costs.
PRESIDENT MEMBER Dated:05.06.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER