State Consumer Disputes Redressal Commission
Apollo Nursing Home, Rep. By ... vs V.Rama Devi, W/O.Late Laxman Rao, ... on 26 February, 2010
FA
BEFORE THE ADDITIONAL BENCH OF
A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA.No.73/2007 AGAINST C.D.No.33/2006 DISTRICT FORUM, KARIMNAGAR.
Between:
1. Apollo Nursing
Home,
Rep. by Dr.Sardarunnisa,
W/o.Ziauddin Ahmed, age 45 years,
Occ:Doctor, 3-3-96, Civil Hospital Road,
Karimnagar-505 001.
2. Dr.M.S.Naveen
Kumar, S/o.M.V.Shanker,
Age 45 years, Occ:Consultant Surgeon,
Apollo Nursing Home, 3-3-96,
Civil Hospital Road, Karimnagar-505 001. Appellants/
Opposite
parties
And
V.Rama Devi,
W/o.late Laxman Rao
Age 52 years,
Oc:Household wife,
R/o.H.No.9-1-193/2,
Bhagathnagar
Locality,
Karimnagar-505 001. Respondent/
Complainant
Counsel for the
Appellants: Mr.V.Shankara Rao
Counsel for the Respondent:Mr.Gundi Ramulu
QUORUM: SMT.M.SHREESHA, MEMBER
& SRI K.SATYANAND, MEMBER FRIDAY, THE TWENTY SIXTH DAY OF FEBRUARY, TWO THOUSAND TEN Oral Order(Per Smt.M.Shreesha, Honble Member) *** Aggrieved by the order in C.D.No.33/2006 on the file of District Forum, Karimnagar, the opposite parties preferred this appeal.
The brief facts as set out in the complaint are that the complainant suffered from severe pain in the abdomen and consulted opposite party No.1 ON 29-6-2005 who advised her to take ultrasound scanning and the report was suggestive of:
-CHOLELITHIASIS AND GALL BLADDER POLYP
-LEFT RENAL CALCULUS AND CORTYCAL CYST
-CBD NORMAL
-NO FOCAL LESIONS/IHBD After 2 and half months once again the complainant developed abdominal pain and this time she consulted opposite party No.1 on 15-9-2005 and he advised her to undergo Cholecystectomy. Accordingly the complainant was admitted in opposite party No.1 nursing home and the surgery was performed by opposite party No.2 on 17-9-2005 under general anaesthesia. The complainant submits that opposite party No.2 was engaged by opposite party No.1for performing the said surgery. On the second post operative day i.e. i.e. 19-9-2005, the complainant developed jaundice and itching and an ultra sound scanning was done and once again the same test was repeated. On 22-9-2005 the complainants son was informed by opposite party No.1 that there may be problem in the internal system of the complainant and this could be identified through MRCP or ERCP and the complainant was advised to go and meet Dr.Vasif Ali for further investigations. The said doctor advised the complainant to get the MRCP done at Kamineni Hospitals who gave the following impression:
-STATUS POST CHOLECYSTECTOMY OBSTRUCTIVE JAUNDICE
-SMOOTH STRICTURE OF COMMON HEPATIC DUCT (CHD)
-1.5 CM BEYOND THE CONLUENCE A/W MILD INTRAHEPATIC BILIARY DILATION (HBD)
--THE MID CBD (COMMON BILE DUCT) IS NOT SEEN On 24-9-2005 once again the complainant developed abdominal pain and she was admitted in Hyderabad Kidney and Laparoscopic Centre and Dr.Vasif Ali treated the patient conservatively after conducting investigations like CBP LFT etc. and discharged the patient on 26-9-2005 but the pain and itching continued and the whole body became yellowish The complainant was taken to AIG hospital, Hyderabad and Dr.Nageswar Reddy conducted ERCP on 27-9-2005 and the report stated:
-POST CHOLECTYSTECTOMY
-ABRUPT CUT OFF OF THE CBD Various investigations like x-ray, CBP, ESR, Blood grouping, Rh factor, random blood glucose and USG of the abdomen were conducted and the USG stated:
-Status Post surgery
-IHBD and dilated CHD The complainant was discharged on 03-10-2005 and was admitted again in AIG on 14-10-2005 and discharged on 17-10-2005 and the report was suggestive of:
-Status Post surgery
-IHBD and dilated CHD
-Hepatomegaly with fatty infiltration
-Left Renal Calculus Once again the patient was admitted on 02-11-2005 in AIG and ultra sound scan was done and Hepatica Jejunostomy was performed to overcome the problem of obstructive jaundice and the liver biopsy was also done and the report was suggestive of Cholecystatic Hepatitis. She was discharged on 21-11-2005 and reviewed on 7-12-2005 once again with USG which is suggestive of
-Mild hepato-splenomegaly
-No focal lesions
-no IHBD
-Portal Vein thrombosis The complainant submits that she paid Rs.50,000/- to opposite party No.1 and opposite party No.1 did not issue any cash receipt and did not even give the discharge summary and she spent about Rs.2,00,000/- towards her treatment and also loss of earning of about Rs.32,000/- to the complainants son who had attended on her through out. Prior to the surgery, the Hepatic and biliary ducts were intact and healthy and it is only after the surgery by opposite party no.2 that she had to undergo corrective surgery again in AIG hospital and she got issued a legal notice demanding compensation of Rs.10,00,000/- on 05-11-2005 for which opposite party No.1 replied on 02-12-2005 that they informed the complainant that surgery would be conducted by the said surgeon on 19-9-2005 and the complainant denies that she received any such information. Vexed with their attitude, she approached the District Forum seeking direction to the opposite parties jointly and severally to pay Rs.10,00,000/- with interest at 18% p.a. and other costs.
Opposite parties filed counter admitting that the complainant approached opposite party No.1 on 15-9-2005 with complaint of pain in the abdomen but opposite party No.1 submits that she also approached her in the month of August, 2005 and sought her advise and she approached her to undergo Cholecystectomy. On 17-9-2005 the complainant and her son was informed that the surgery would be conducted by opposite party No.2. They deny that on 19-9-2005 the complainant developed jaundice and itching through out the body but they contend that during the course of post operative check up, opposite parties noticed that jaundice was suspected and blood for serum bilirubin was sent and after that both opposite parties called the complainants son and other attendants and told about the suspected jaundice and sent the complainant for ultra sound scanning. Thereafter, they advised the complainant to approach Dr.Vasif Ali since MRCP test was available at Hyderabad only and on the same day the patient left to Hyderabad the complainant paid only Rs.5,000/- with discharge summary and reference letter given to the complainant to be handed over to Dr.Vasif Ali and every precautionary step was taken by them. They also contended that all her organs like gall bladder, CBD, Cystic artery, show maximum variations inflammations and edema and the task of cholecystectomy is made more difficult. In cases where there is more fat tissue, edema, altered anatomy, inflammation and adhesions complications can occur even in the hands of most experienced surgeons. Hence they submit that there is no negligence on their behalf and they prayed for dismissal of the complaint with costs.
The District Forum based on the evidence adduced i.e. Exs.A1 to A140 and also the evidence of opposite parties 1 and 2 and Dr.D.Nageswar Reddy and the case sheet allowed the complaint in part directing the opposite parties 1 and 2 to pay Rs.5,00,000/- towards compensation and loss of earning of her son with interest at 9% p.a. from the date of filing of complaint i.e. 31-1-2006 and costs of Rs.1,000/-.
Aggrieved by the said order, the opposite parties preferred this appeal.
Both parties filed written arguments.
The point that arises for consideration is whether the CBD was abruptly cut off and whether this can be construed as negligence on behalf of opposite party no.2 or that it is a common complication?
The facts not in dispute are that the complainant approached opposite party No.1 on 15-9-2005 with severe pain in her abdomen and she was advised surgery. It is also not in dispute that the complainant was admitted in opposite party no.1 nursing home on 15-9-2005 and the surgery was carried out on 17-9-2005. It is the case of the complainant that on the second post operative day i.e. on 19-9-2005, the complainant developed jaundice and itching throughout her body. The complainant contends that this problem was reported but opposite party no.2 was not available after surgery and opposite party no.2 informed that the problem would be relieved within 2 to 3 days and on 22-9-2005, opposite party no.2 informed the complainants son that there may be some minor problems in the internal system of the complainant and that could be identified through MRCP or ERCP and advised them to go to Hyderabad and consult Dr.Vasim Ali. R.W.1, Dr.Sardarunnisa Begum stated that they did not conduct any investigations for anatomy of biliary system prior to the operation and she also did not file the consent letter given by the complainant. She also denied that there was jaundice on 19-9-2005 and as per Ex.A6 report of urine test given by their lab, Eurobilinogin was present in the urine.
She denied that she failed to detect the cause of jaundice. She denied that cause of jaundice can be detected by CT scan or MRI which is available at Karimnagar. She also denied that Ex.A24, which is ERCP report of AIG, Hyderabad is suggestive that the biliary system was cut off at CBD level while operating at karimnagar but she deposed that Ex.A24 reveals that there is a discontinuity of CBD at a particular segment.
R.W.2, Dr.M.S.Naveen Kumar, opposite party No.2, deposed in his examination that prior to the surgery, U.S. scan examination was done to know the condition of biliary system but did not file this report taken prior to the operation. Ex.A5 is the operation notes in his own handwriting and R.W.2 denied that he has failed to trace out the CBD and cystic duct and due to his fault the biliary system was cut off at the level of CBD. The biliary system was not cut of due to his fault but it might have cut off while he was separating adhesions of CBD, cystic artery and common hepatic duct, cystic and the lot of fat around those parts. He denied that the patient developed jaundice because of his fault and he further volunteered only CHD was not injured and only CBD was injured. The tests conducted by them only suggest about obstructive jaundice and denied that as per Ex.A24 he was at fault or that there was any negligence on his behalf.
The affidavit of Dr.D.Nageswar Reddy, who is expert witness, states that the complainant was having post cholecystectomy Biliary structure. She underwent ROUX-EN-Y HEPATICO JEJUNOSTOMY at Asian Institute of Gastroenterology on 7-11-2005. Biliary stricture is a known complication after cholecystectomy. She has been managed adequately by previous surgeon at Karimnagar. He further stated in his cross examination as follows:
The incidents of Bile duct injury is an open Cholecystoctomy varies from 0.3% to 0.6% as per the surgical notices I am of the opinion that the Bile duct Strictures can be two types after Cholecystoctomy, either partial or complete.
Complete cut off of bile duct indicates complete strictures. Abrupt cut off means complete stricture. The stricture is post Cholecystoctomy status.
In this particular case I was not present at the time of surgery and therefore it is not right on my part to comment what led to Biliary stricture. Generally injuries can occur because of vascular causes mechanic causes or congenital anamalysis of the ducts and vessels. If the injury is recognized at the time of surgery, the surgeon will take adequate precaution. The dilatron of duct takes place in the upper region of the stricture. It is not true to suggest that the opposite party No.2 has failed to identify cystic duct and CBD because of ignorance of anatomy and anatomical variations.
From the aforementioned examinations, it is clear that opposite party No.2 could not have identified the cystic duct and CBD because of ignorance of anatomical variations which clearly indicates that opposite party No.2 doctor was aware that CBD being cut off.
Opposite party No.2 denies that there was any negligence on his part in the cut off the biliary system at the level of CBD. From the material on record, it is clear that the complainant developed jaundice on the second day of operation because of this complication. Ex.A9 is the MRCP report of Kamineni Hospital dated 23-9-2005 which confirms the stricture of common Hepatic duct. Ex.A23 reveals that the complainant was suffering with recurrent vomiting since 23-9-2005 and pain the lower abdomen. Ex.A24 which is the ERCP report of Asian Institute of Gastroengrology dated 27-9-2005 shows the evidence of abrupt cut off the biliary system at the level of CBD. Opposite party No.2 in his deposition states that the biliary system was not cut off due to his fault but it might have cut off while he was separating the adhesions of CBD.
It is clear from the material on record that this was not explained to the complainant and her son at the time of discharge and no informed consent was taken from them prior to the operation. These risks and complications were not explained to the complainant and her son and there is nothing on record to prove that the opposite parties have explained to the complainant the inherent and probable risks involved and also did not state anywhere the cause for jaundice except for referring to Dr.Vasim Ali for MRCP and ERCP. When it is a clear case of injury caused to CBD during surgery and was well within the knowledge of opposite party No.2, firstly, he ought to have explained to the complainant and her son and secondly he ought to have taken corrective steps during post operative management when the CBD was cut off by him he ought to have identified the injury, explained the prognosis and risks to the complainant and her son instead of simply referring them to Dr.Vasim Ali. We rely on the judgement of the Apex court in Civil appeal no.1949/04 dt.16.1.2008 between Simira Kohli and Dr.Prabha Manchanda & Anr. Reported in (2008) 2 SCC-1 discussed consent and informed consent and discussed informed consent as follows:
The doctor, therefore, is required to communicate all inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the likely effect if the patient remained untreated. This stringent standard of disclosure was subjected to only two exceptions:
(i) where there was a genuine emergency, e.g. the patient was unconscious; and
(ii) where the information would be harmful to the patient, e.g. where it might cause psychological damage, or where the patient would become so emotionally distraught as to prevent a rational decision. It, however, appears that several States in USA have chosen to avoid the decision in Canterbury by enacting legislation which severely curtails operation of the doctrine of informed consent.
The appellants also relied on the judgement of the apex court in 2009 ACJ 2284, 2009(2) AWC 1734 (SC in Ms.Ins.Malhotra v. Dr.A.Kriplani and Ors. but the facts are not relevant to the instant case. From the aforementioned judgements, it is clear that the informed consent is mandatory prior to the conduction of the operation which in the instant case was not taken and also the second judgement clearly lays down that when there is a prima facie case which in the instant case is cutting of CBD, the burden of proof shifts on the doctor to establish that his treatment was as per the normal practice of medical parlance.
Therefore, we are of the considered view that the opposite parties could not establish that they have taken informed consent, explained the prognosis and risks to the complainant and further that they have identified the cutting of the CBD but did not take corrective steps post operatively. However, we are of the considered view that the compensation of Rs.5,00,000/- awarded by the District Forum is on the high side and we find it commensurate to reduce it to Rs.3.50 lakhs to meet the ends of justice. This amount is inclusive of medical expenses, loss of earnings of her son and mental agony. We also confirm the costs of Rs.1,000/- awarded by the District Forum.
In the result the appeal is allowed in part and the order of the District Forum is modified by setting aside the interest aspect of 9% p.a. and for reasons aforementioned, we reduce the compensation amount from Rs.5,00,000/- to Rs.3.50,000/- and confirm the costs of Rs.1,000/-. Time for compliance four weeks.
Sd/-MEMBER.
Sd/-MEMBER.
Dt.26-2-2010