National Consumer Disputes Redressal
Sunil vs Om Multispeciality Hospital & Research ... on 14 October, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1140 OF 2014 (Against the Order dated 04/08/2014 in Complaint No. 14/2011 of the State Commission Maharastra) 1. SUNIL S/O. VISHNU SURASE, R/O. SINDHI KALEGANJ, TQ. & DIST- JALNA, MAHARASHTRA ...........Appellant(s) Versus 1. OM MULTISPECIALITY HOSPITAL & RESEARCH CENTRE PVT. LTD. NEAR THE NEW SHIVAJI MAHARAJ STATUE, JALNA (MAHARASHTRA), THROUGH ITS PROPRIETOR DR. NILESH AGARWAL /O. OM MULTISPECIALITY HOSPITAL & RESEARCH CENTRE PVT. LTD., NEAR THE NEW SHIVAJI MAHARAJ STATUE, JALNA MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Appellant : Mr. Pradeep Ramdasrao Adkine, Advocate For the Respondent : Mr. Ajay Gupta, Advocate Dated : 14 Oct 2015 ORDER DR. S. M. KANTIKAR, MEMBER
1. There is delay of 18 days in filing this appeal.
2. In view of grounds taken in the application, the delay is hereby condoned.
3. Mr. Vishnu Surase, aged about 53 years, since deceased, (hereinafter referred as the 'patient') was operated for appendectomy at 4.20 pm on 10.2.2011 by Dr. Nilesh Aggarwal in the OP-hospital/ OM Multispecialty Hospital & Research Centre Pvt. Ltd. Jalna. The patient died on same day night at about 10.30 p.m. Mr. Sunil, the complainant, son of deceased shocked by the demise of his father, hence he filed a complaint with police station Jalna. The post mortem (PM) was conducted in the morning on 11.2.2012. As per PM report, cause of death was 'due to hemorrhagic shock in operated case of Appendectomy'. Therefore, the complainant alleged about the negligence of Dr. Nilesh Aggarwal during surgery, causing excessive bleeding and death of patient. Accordingly, complaint was filed on 5.4.2011 before the Maharashtra State Commission for claiming compensation of Rs. 30 lakhs.
2. The State commission dismissed the complaint. Hence, aggrieved by the order of State Commission, the complainant filed this first appeal.
3. We have heard the learned counsel for the parties. Counsel for the appellant/complainant vehemently argued that, the OP performed a laparoscopic operation in the afternoon, which was uneventful. Thereafter, the patient became serious. There was need of emergency blood transfusion, hence around 20-25 units of blood was transfused. Therefore, it is alleged that, it as minor operation, due to negligence of OP the patient became serious. The OP did not inform the complainant about exact status or seriousness of the patient's condition. The patient died due to hemorrhagic shock.
4. The argument on behalf of the OP is that there was no negligence. The patient was treated properly for the abdominal pain. After proper investigations and pathological tests it was case of appendicitis, hence laparoscopic surgery was performed. After surgery, the patient recovered from the anesthesia, but he suddenly developed bradycardia followed by cardiac arrest and became unconscious at 10.00 p.m. The OP gave proper CPR for 50 minutes, but despite of all cardio respiratory resuscitative measures, patient could not survive. The patient expired at 10.50 p.m. on 10.02.2011. The cause of death was hemorrhagic shock, which is a natural cause and it was not due to negligence of OP. In this regard, the counsel for OP produced few medical literatures about hemorrhagic shock from different Research Journals. Counsel further submitted that complainant did not produce any expert evidence to prove his case. Hence, the complaint has to be dismissed.
5. We have perused the medical record and the post mortem report. It is admitted fact that OP performed laparoscopic appendectomy. The PM was conducted by Dr. P.S.Ujagare at Civil Hospital, Jalana. Careful perusal of PM report clearly revealed about a tear about ½ a centimeter away for ileocecal (IC) junction. Also, there were multiple hematomas in the lateral wall of abdominal cavity, ascending colon and sub hepatic area. There was evidence of retroperitoneal hematoma on both the sides, about 1000 ml blood with tiny clots. The liver showed a small tear ½ cm of Rt lobe near porta hepatis.
6. It is very strange because a laparoscopic surgery is one of the safest surgeries. There will be rarely mortality. The doctrine of reasonable care imposes an obligation or a duty upon a doctor to care for the patient and this duty attains a higher degree during laparoscopic operations. It is axiomatic to say that while operating by laparoscopy, there is an implicit duty cast on the surgeon to see that procedure does not endanger the life of patient. We have perused the medical literature on hemorrhagic shock. It is a condition produced by rapid and significant loss of blood which lead to hemodynamic instability, decreases in oxygen delivery, decreased tissue perfusion, cellular hypoxia, organ damage and can be rapidly fatal. Early treatment is essential in such cases; the patient with massive hemorrhage may experience conditions ranging from severe hypovolemia which cause extreme decrease in hemoglobin.
7. In the instant case, as per PM report, there was an injury to liver and small intestine which led to intra-abdominal bleeding. Clinically there was oozing of blood from surgical wounds, which the OP failed to investigate it immediately. OP ought to have performed abdominal USG or X-ray to rule out the causes of hemorrhage intra-abdominally. It was a primary goal to stop the bleeding, which the OP failed to do so. Subsequently, the patient rapidly progressed to fatal hemorrhagic shock and cardiac failure.
8. Therefore, in the instant case, we would like to invoke the doctrine of "res ipsa loquitur" where no direct evidence was brought on record. No act need be explicable only in terms of negligence in order for the rule of res ipsa loquitur to be invoked. The rule deals only with permissible inferences from unexplained events.
Hon'ble Supreme Court in V.Kishan Rao vs. Nikhil Super Speciality Hospital [(2010) 5 SCC 513 held that ;
47. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
9. Hon'ble Supreme Court considered the applicability of Res Ipsa Loquitur to the case of medical negligence in Jacob Mathew (Dr.) Vs. State of Punjab & Anr., III (2005) CPJ 9 (SC) and has observed:
"27. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur."
28. Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant."
10. In the case before us, that usually most of patients prefer laparoscopic operation as one of the safe and short procedure. In the instant case, OP performed a laparoscopic procedure, but it is apparent from the record that, the patient was transfused about 20-25 units of blood. It was because of severe internal hemorrhage in the abdomen. The same was confirmed by the Post Mortem findings.
11. What constitutes Medical Negligence has been discussed in a plethora of rulings of the Hon'ble Supreme Court, this Commission and the international courts. In the Bolam's case (Bolam Vs. Frien Hospital Management Committee (1957)1 WLR 582), the locus classicus of the test for the standard of care in law, required of a doctor, developed from this landmark case. Mr Justice McNair, in his direction to the jury, said:
[a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art ...Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.
12. In V.P.Shantha's Case (1995) 6SSC 651 and Jacob Mathew's Case (2005) 6 SSC 1, it was held that a medical practitioner is expected to bring a reasonable degree of skill and knowledge and must also exercise a reasonable degree of care and caution in treating a patient. It was concluded that, " a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess."
13. In the instant case, the OP doctor failed to apply his reasonable skills and reasonable degree of care during laparoscopic operation which resulted into injury to liver, and intestine led to intra-abdominal hemorrhages.
14. Based on the discussion above, we hold the OP responsible for medical negligence, therefore we set aside the impugned order of State Commission. Regarding compensation to take a cue from the landmark judgment Dr Balram Prasad Vs Kunal Saha (2014)1SCC 384 case. Accordingly, we are of the considered view that award of Rs 10 lacs being 'just and reasonable' compensation in this case.
15. The appeal is allowed, the OP is hereby directed to pay Rs.10 lacs to the complainant within 90 days, otherwise thereafter, it will carry interest @ 12% per annum till it's realization. However, there shall be no order as to costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER