National Consumer Disputes Redressal
C.V.S.R. Prasad vs Vasudha Nursing Home And Anr. on 31 August, 2007
Equivalent citations: IV(2007)CPJ58(NC)
ORDER
B.K. Taimni, Member
1. This is a complaint filed by the husband of the deceased Doctor K. Sailaja, alleging medical negligence on the part of the opposite parties, Sri Vasudha Nursing Home (hereinafter referred to as OP No. 1) and Dr. Section Jagadeeswari (hereinafter referred to as OP No. 2).
2. The facts leading to filing the complaint are that the deceased Dr. Sailaja, who herself was a post-graduate student of Gynaecology in the Government Medical College at Kakinada (A.P.), after getting married had a baby of seven months. She noticed a boil near her private part, for which she allegedly contacted the OP No. 2 Dr. S. Jagadeeswari, who is a Senior Obstetrician and Gynaecologist in the Government General Hospital attached to the Medical College in Kakinanda, who after diagnosing the ailment as Perianal Abscess, allegedly with an ulterior motive to make money, referred the deceased to the OP No. 1 Nursing Home. The deceased was operated upon on 23.5.1997 in the OP No. 1 Nursing Home under general anaesthesia at about 8.30 a.m. After surgery it is alleged that, the OP No. 2 left the Nursing Home, and it is at this stage that the deceased developed rigours and her condition progressively grew worse to the extent that the OP No. 2 had to be called, who came and advised her immediate shifting to the Government General Hospital, Kakinada and it was done at about 10.15 a.m. and wherein she was treated by Dr. M. Siva Sankar, who administered some injections and other treatments but it was of no use as the deceased expired at 11.00 a.m. The acts and omissions and commissions relating to medical negligence have been referred to in paras 10 and 11 of the complaint which read as under:
10. That the opposite party No. 2 had been grossly negligent and callous in taking pre-operative care, performance of the surgery as well as in taking post-operative care due to which the wife of the complainant had met with her premature demise at very early and young age of 26 years.
11. That the opposite party No. 1 Nursing Home had also failed or neglected to possess basic and minimum facilities for operative and post-operative care for even minor surgery like the present one. Dr. V. Seshumamba and the para-medical staff of the hospital failed to take such pre-operative and postoperative care as to make the patient come out of surgery healthy as any ordinary patient of common prudence would hope for; but caused the premature death of the wife of the complainant.
3. Thus, alleging medical negligence a complaint has been filed with a prayer to grant Rs. 60,10,000, break-up of which is as follows:
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I. Loss of Medical Career of the deceased as a Gynaecologist and loss of earnings @ Rs. 10,000 per month for 25 years (assuming that she secured a job in Combined Medical Services or as a Gynaecosome hospital and worked for 25 years Rs. 30,00,000 II. Loss of consortium, compenionship, mental agony and suffering to the complainant for about 40 years (assuming that she lived for an average span of life of 65 years). Rs. 10,00,000 III. Loss of motherly care and love of the baby-boy for about 40 years Rs. 20,00,000 IV. Expenses:
(a) Medical Expenses including the fees, hospital charges and medicines Rs. 5,000
(b) Incidental expenses Rs. 5,000 Rs. 10,000
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Total Rs. 60,10,000
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4. The notices were issued to the opposite parties who filed common written version and denied any medical negligence on their part.
5. It is the case of the first opposite party that their Nursing Home is fully equipped and has all the facilities including the para-medical staff and all pre-operative and post-operative care was taken. It was their case that when the deceased came for consultation on 21.5.1997, the OP No. 2 found this to be a case of 'Bartholin's abscess' which occurs in vaginal regions. Opposite party who is a Head of the Unit 2 of Gynaecology in the Government Medical College, after examination advised 'incision and drainage of the abscess' at the Government General Hospital but in order not to divulge the problem to the medical faculty or other staff in the medical college she preferred to be treated in Private Nursing Home, i.e., OP No. 1 as it was also close to her house. It was the case of the OP No. 2, that on 23.5.1997 at about 8.30 a.m., incision and drainage of the abscess was done at the OP No. 1 and 200 ml of foul smelling pus was drained under general anaesthesia. The surgery was successful after which the OP No. 2 left the Nursing Home. At about 10.15 a.m., she received a message from the Nursing Home that the deceased had gone into complications of septic shock, for which emergency treatment was started but as the condition did not improve, she was shifted to the Government General Hospital where succumbed at about 11.00. a.m. Post-mortem was conducted on 24.5.1997 and the findings suggested a large Bartholin's abscess and that all the organs in the body showed chronic infection and that the patient died of 'septic shock'. All other allegations on the part of the opposite parties were denied.
6. Rejoinder was filed by the complainant reiterating the allegations on medical negligence and further alleging that the operating surgeon had not taken any pre-operative care except prescribing some capsules on 21.5.1997, no preoperative checkup was done or test carried out. It was further alleged in the rejoinder that no nurse was provided in that room where the deceased was shifted after surgery and the OP No. 2 was not present to attend on the deceased when the complications arose and reactions was noticed at 10.15 a.m. on 23.5.1997.
7. Affidavits by way of evidence were filed by both the parties and there was cross-examination of the deponent by both the parties through interrogatories.
8. We heard the learned Counsel for both the parties at considerable length and perused the material on record.
9. As already referred to earlier the act of medical negligence on the part of the opposite parties has been enumerated in para 10 and 11 of the complaint, which have been reproduced earlier. As per settled law when a case of negligence is alleged there ought to be specific instances of acts of omission or commission on the part of the doctors and hospitals and onus of proof lies on the complainant. When we go through paras 10 and 11 of the complaint there is no specific act of negligence alleged against the opposite parties except that the preoperative and post-operative care was not taken. No evidence of whatsoever nature has been led before us in support of this allegation as to what should have been done and was not done by the opposite parties or what was done by the opposite parties, which should not have been done by them? As per material on record, OP No. 1 is a full-fledged Nursing Home and surgery was carried out by a qualified Obstetrician and Gynaecologist. Anaesthesia was administered by a qualified Anaesthetist and she was removed after surgery to the room. In the complaint, and in the evidence filed by the brother of the deceased, who was the only male member of the family present there from the time of operation till the death of the deceased, constant refrain is that the complications which had arisen were being brought to the notice of the sister(s) concerned and also to the Dr. Seshamamba, who is also the proprietor of the OP No. 1 Nursing Home and is a qualified doctor. In these circumstances, we are unable to appreciate as to what else was required as far as pre-operative and postoperative care is concerned, i.e., on the presence/availability of Nurse in the Nursing Home.
10. Admittedly, the hospital record was seized by the Police and part of the handwritten hospital record has been brought before us. Admittedly, the blood test was done and antibiotics in the form of MOL was given to the deceased after complications were noticed at post-operative stage; injection of Avil was also given. As per the complaint filed by the complainant, the husband of the deceased, who was not present before or during the surgery, has relied upon the information given by the brother of the deceased, whose evidence is on record. In the complaint filed before us, the complainant has clearly stated that certain tablets were administered to the deceased on 21.5.1997, which as per the written version filed by the OPs was capsules ZAANCT, a good antibiotic.
11. Even though, it is not part of the pleadings, it was argued before us that when the patient developed complications in the post-surgical period, no oxygen was given. But our attention has been drawn towards the F.I.R. lodged by the brother of the deceased in which it is clearly stated "thereafter they brought her to the room below and gave oxygen...." hence this contention of the Counsel for the complainant is belied by the FIR lodged by the brother who was the sole male member present during the surgery.
12. There is no disputing the fact that complainant herself is a qualified doctor and was a post-graduate student of Gynaecologist in the Government Medical College, when she had developed glands located on either side of the vulva with cyst formation, which in this case had become infectious leading to abscess formation which in medical terminology is called "Batholin's Abscess". As per medical literature brought on record by both the parties the only remedy is 'incision and draining out the pus', and this is exactly what was done in this case. As per medical literature when the germs get into the blood through infection and body organs and when immune system is not working well it leads to septic shock due to toxin produced by bacteria severally damaging the cells or organs and tissues in the body and the symptoms of septic shock as per medical literature are high fever, low B.P., rapid pulse. The development of septic shock is related with the individual immune system. As per medical authorities, i.e., American Academy of Family Physician, states that while dealing with the cases of management of 'Batholine's Gland Cyst' in some cases septic shock cannot be prevented. Early treatment of infections can prevent many cases. It is also stated that infection almost anywhere in the body can spread into blood stream and cause septic shock and it has been clearly stated that the primary risk of septic shock is death.
13. Admittedly, in this case the postmortem was carried out on 24.5.1997 and the deduction of the forensic expert is that the deceased died of the 'septic shock'. The viscera was also examined chemically and along with other items it showed residue of deri-phyllin as well as Avil, which only support the contention of the OPs that once the complications were noticed after the surgery and the deceased having brought to the recovery room immediately, antibiotics were given and Avil injection was also administered.
14. The literature produced by the complainant primarily relates to Batholine's Abscess. The material brought on this point "Septic Shock Complicating Drainage of a Batholine's Gland Abscess" produced by the complainant is also relied upon by both the parties in which it is stated that a computer generated review of the literature provided only three cases of sepsis associated with a Batholine's Gland Abscess. In all three cases sepses became evident before the abscess was drained. In the present instance as per material on record, the Batholine's Gland was noticed for the first time by the OP No. 2 on 21.5.1997. It is very difficult to accept that the deceased who was an M.B.B.S. and was a Post-graduate student of Gynaecology would not have noticed the gland in her private part, for which she consulted the OP No. 2 for the first time on 21.5.1997. She was advised antibiotic and she was operated upon at 8.30 a.m. on 23.5.1997, which as per hospital record took only less than ten minutes, for the draining out the pus and the patient was removed to the room where as per the FIR lodged by the brother of the deceased, she spoke to him for some time, i.e., she had recovered from anaesthesia. Once the complications arose and as per material on record, she developed high fever of 106°F (report of the Lok Ayukta - on record) and other complications like rigours she was given MOL antibiotic and Avil injection. The OP No. 2 was called, who reached within a reasonable time and advised her to be shifted to Government Hospital, where unfortunately, she died. In this sequence of events the complainant has completely failed to show us any negligence on the part of the opposite parties.
15. Before we conclude we also like to bring on record three separate findings by the three different agencies, namely, the Lok Ayukta of Andhra Pradesh, the judgment passed by the Criminal Court, Kakinada as also the inquiry report, got conducted by the Director of Medical Education, Andhra Pradesh.
16. If we go through the Lok Ayukta report, which is on record, we find that while it has exonerated the Government Hospital, but without any material on record or without any evidence led by the parties, the Lok Ayukta seems to find the opposite parties negligent and advised the complainant to proceed before a Civil Court against them. Instead of going to Civil Court, the complainant has filed complaint under Consumer Protection Act, before us.
17. We see that complainant also went before the Criminal Court where the opposite parties have been acquitted. As per judgment in the criminal case, record was seen by two Doctors namely, M. Shivashanker and Dr. Satya Vanthulu. As per the report of Dr. M. Shivashanker, the deceased died of hyperpyrexis with circulatory failure, which means that the deceased died of high fever and due to non-circulation of blood through circulatory system. As per Nursing Home record produced before the Criminal Court it was recorded by the Government Medical College that the deceased was having temperature of 106°F, which is directly relatable to the septic shock arising from the infection which had spread to other parts of the body on account of delay on the part of the deceased...herself being a doctor and a budding gynaecologist and not coming for the treatment of cyst on her private part earlier.
18. As far as the evidence of Dr. Vanuthulu is concerned he had given his evidence before the Criminal Court, admittedly without seeing, the Nursing Home record and during his cross-examination and after seeing the case-sheet he admits that the operation was conducted on the patient only after antibiotic therapy. In this context it is the case of the complainant that the doctor initially had given a fair report, which favoured them, but was won over by the opposite parties. We do not buy this argument. Before a Criminal Court, this doctor has given the evidence in his cross-examination after seeing Exhibit P-1 which was the hospital record, which admittedly, earlier he had given the report without seeing, being shown the hospital record.
19. We reproduce below the order of the Government of Andhra Pradesh with regard to inquiry conducted by them against the opposite parties:
In the reference 2nd read above, articles of charges were issued to Dr. S. Jagadeswari Devi, Professor of Obstetrics and Gynaecology, Rangarya Medical College/Government General Hospital, Kakinada on the allegation of negligent acts caused to suspicious death of Dr. K. Sailaja, P.G. Student. In the reference 3rd read above the Director of Medical Education has forwarded the explanation submitted by Dr. Section Jagadeswari Devi. After examination of the explanation, in the reference 4th read above, the Commissioner, A.P. Vaidya Vidhana Parishad, Hyderabad has been appointed as Inquiry Officer to conduct inquiry into the matter. The Inquiry Officer has conducted the inquiry and submitted his report to Government in the reference 5th read above.
2. Government after having examined the enquiry report have decided that further action against Dr. Section Jagadeswari Devi, Professor of Obstetrics & Gynaecology, Rangaraya Medical College/Government General Hospital, Kakinada be dropped.
3. Accordingly, Government hereby drop further action against Dr. Section Jagadeswari Devi, Professor of Obstetrics & Gynaecology, Rangaraya Medical College/ Government General Hospital, Kakinada.
4. The Director of Medical Education, shall take necessary further action in the matter accordingly.
(By Order and in the name of the Governor of Andhra Pradesh)
20. If we see these three documents, they do not favour the complainant at all.
21. It was also alleged by the complainant in the complaint that while the deceased was keen to get her surgery done in Vizag, but leave was not granted by the OP No. 2, who was the officiating head, as the concerned head of the Gynaecology Unit in the Medical Hospital, Dr. Karuna, was on leave and secondly, it was on the instance of OP No. 2 that surgery was got done in a Private Nursing Home. Both the facts have been denied by the 2nd OP. OP No. 2 has clearly stated in the evidence produced before us that Dr. Karuna was not on leave on 21, 22 and 23 May, 1997, which remains unrebutted in any manner, which only supports the case of the OP No. 2, since she was not the Head of the Department of the deceased, the question of her sanctioning leave or otherwise does not arise. In the complaint it was stated that the OP No. 2 advised surgery in the Private Nursing Home and not in a Government Hospital for personal pecuniary gain, which was denied by the OP No. 2 in the written version filed as also in the evidence filed before us. If we see the interrogatories sent by the complainant to the OP No. 2, there is no interrogatory relating to this issue. Hence the reply filed by the OP No. 2 in this regard remains unrebutted.
22. In the aforementioned circumstances, based on medical literature brought on record with regard to Batholine's Abscess and Septic Shock as also several inquiry reports, Postmortem reports, no specific act of medical negligence has been shown much less proved by the complainant.
23. The law laid down by the Hon'ble Supreme Court in the case of Jacob Mathew v. State of Punjab and Anr. III , wherein it was held that in order to prove a case of medical negligence one must pass the Bolam test. The observation of the Supreme Court reads as under:
20. The water of Bolam test has ever since clown and passed under several bridges, having been cited and dealt within 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 summarised the Bolam test in the following words:
From these general statements it follows that a professional man 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 must bring to any professional tasks 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 & Percy, ibid, para 8.04)
24. In Roe v. Ministry of Health (1954) 2 All E.R. 131, Denning L.J. (ibid, at p. 137) has held as under:
Medical Science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefit without taking the risks. Every advance in technique is also attended by risks....
And goes on to hold....
One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.
25. The 'Duty of Care' has been best defined by "Halsbury's Laws of England - Vol. 26 (3rd Edition) Pages 17 - 18" which reads as under:
22. Negligence: Duties owed to the patient--A person who holds himself oat as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment, (b) a breach of any of these duties will support an action for negligence by the patient(c).
26. It is neither the case of the complainant that the OP No. 2 was not qualified to handle the case nor for that matter the treatment given was wrong and nor for that matter, that was not administered properly.
27. In the aforementioned circumstances we are of the view that the complainant has completely failed to prove the case of negligence on the part of the opposite parties, in view of which this complaint is dismissed.