National Consumer Disputes Redressal
St. Antony Hospital vs C.L. D'Silva on 2 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 39 OF 2007 (Against the order dated 01.12.2006 in OP No.17/2001 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai) St. Antony Hospital Rep. by its Administrator Madhavaram High Road Chennai-60 Appellant Versus C.L. DSilva No. 31 (Old No. 54) Arul Nagar, Madhavaram Chennai-60 Respondent BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For Appellant : Mr. S. Vijayakumar, Advocate & Mr. Sumit Kumar, Advocate For Respondent : NEMO Pronounced on 2nd April, 2013 ORDER
PER VINEETA RAI, MEMBER
1. This first appeal has been filed by St. Antony Hospital, Appellant herein and Opposite Party before the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (hereinafter referred to as the State Commission) being aggrieved by the order of that Commission, which had partly allowed the complaint of C.L. DSilva, Respondent herein and Complainant before the State Commission alleging medical negligence against the Appellant.
2. FACTS :
In his complaint before the State Commission, Respondent-Complainant had stated that his wife Corrine DSilva (hereinafter referred to as the Patient), who was gainfully employed in a foreign company in Chennai, complained of pain in the lower abdomen on the right side. Suspecting it to be a case of Appendicitis, Respondent-Complainant took her to Pavithra Hospital, Erukkanchery, Chennai, wherein an ultrasound scan indicated that she had a small cyst on her right ovary and fibroid uterus was suspected. Respondent-Complainant took a second opinion from St. Thomas Hospital where removal of ovaries was advised, which required surgery and 10 to 15 days hospitalization. Since Respondent-Complainant and the Patient were living in Madhavaram, they decided to go to the nearby Appellant in April, 2000 for fixing a date for admission and surgery. Appellant conducted preliminary tests like Chest X-ray, ECG etc., the results of which were normal. The Assistant Administrator of the Appellant advised the Patient to postpone the surgery till 12.05.2000, as a reputed and experienced Doctor from USA, one Dr. Samuel Parra, was visiting their Hospital to demonstrate his skills.
Patient, therefore, applied for medical leave for 4 weeks from 12.05.2000 and was examined by Dr. Samuel Parra on that date, who after diagnosis stated that he would remove the cyst by Laparoscopy method and, if required, thereafter a surgery would also be done. Since the Appellant did not have the Laparoscopy instrument required by Dr. Parra, it was arranged from a hospital in Tuticorin and the surgery was fixed for 24.05.2000. Patient got admitted on 23.05.2000 and was thereafter allotted a room which was very unhygienic as sewage water was stagnating nearby. At 8.30 a.m. on 24.05.2000 Patient was taken to the operation theater for surgery and on its completion, she was brought back to the room at 12.45 p.m. Same night, she developed high fever and also later complained of discomfort and severe pain in the abdomen. She was assured by Dr. Parra that this was a routine pain after surgery. However, when her condition worsened, she was again examined on 26.05.2000 by Dr. Parra who asked the Respondent-Complainant to arrange for 2 Pints of blood. Patients condition continued to deteriorate and breathing became belabored and, therefore, she was put on oxygen. When Respondent-Complainant returned with the blood required for transfusion, he found that the Patient had been taken to the operation theater for the second surgery.
Thereafter at 11.20 p.m. Dr. Parra informed the Respondent-Complainant that by mistake, colon of the Patient was ruptured during the first surgery, as a result of which her body fluids and faecal matters had leaked into her system, but this was cleaned up and the mistake rectified during the second surgery.
Respondent-Complainant was also informed that both ovaries had been removed and sent to the laboratory for tissue culture. Patient was breathing with great difficulty and the external incisions following her surgery were also not fully closed, which according to the Doctor was necessary in case another emergency surgery was required. Respondent-Complainant stated that he was fully confused with these sudden developments and on 27.05.2000 when he was permitted to see the Patient, he found her in semi-conscious state. He also reliably understood from discussions among Doctors that his wifes first surgery was an experimental one and the equipments used were not functioning properly. On 27.05.2000 at 7.00 p.m. Dr. Parra and other Doctors from Appellant informed the Respondent-Complainant that they were not equipped to cope with Patients critical condition since there were no intensive care facilities and advised him to transfer her to Sri Ramachandra Medical College Hospital at Porur. When the Patient was shifted late at night to Sri Ramachandra Medical College Hospital, she was taken to ICCU and put on ventilator there and Doctors informed the Respondent-Complainant that his wifes recovery chances were only 5% as the internal organs were in septic condition due to presence of faecal matter etc. causing severe internal damage.
The Doctors at Sri Ramachandra Medical College Hospital also advised that the wounds may have to be reopened and cleaned but this was very risky procedure, for which the Respondent-Complainant was required to sign a consent form.
However, despite all efforts Patient passed away on 16.05.2000 at 2.20 a.m. As per the medical record, the cause of death was Septicemia leading to multi organ failure. Being aggrieved by the medical negligence and deficiency on the part of the Appellant and Doctors therein, including Dr. Parra who used the Patient as a guinea pig, in conducting a Laparoscopy with ill equipped equipments, which resulted in the rupturing of the colon of the Patient, Respondent-Complainant issued a legal notice to the Appellant claiming Rs.15 Lakhs as compensation. However, since no reply was received from them, Respondent filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that the Appellant be directed to pay him (i) Rs.15 Lakhs as compensation towards loss, hardships and mental agony suffered by him on account of gross deficiency in service and the medical negligence on the part of Appellant and its Doctors; (ii) Rs.1,81,911/- being the refund in respect of medical treatment; and (iii) Rs.10,000/- as litigation costs, as also any other relief as deemed appropriate in the interest of justice.
3. Appellant on being served filed a written rejoinder denying that there was any medical negligence on their part. It was stated that the Appellant is a charitable hospital which was rendering service to deserving and poor patients.
Respondent-Complainants wife had been admitted in the Appellant hospital where after examination she was diagnosed with Endometrial Cyst and fibromas of the uterus. Patient had agreed to the Laparoscopy after she was clearly informed about the pros and cons of the same, including the possible complications, which could require converting it into an open procedure. On 24.05.2000 after conducting all the pre-operative tests, the Laparoscopy was conducted, which confirmed that Patient had extensive Endometriosis, inflammatory changes and also pelvic inflammatory disease. There was extensive adhesions and some fibrinous fluid. All these were attended to through a time consuming procedure. At 8.00 p.m. on the same day, Patients haemoglobin dropped to 9.3 and she complained of shoulder pain which was common after Laparoscopy. However, there were no other problems. She was given IV fluids and antibiotics. The next day when she was not responding to conservative management and was showing systemic sepsis and peritonitis, Respondent-Complainant was advised about the need for exploratory surgery. It was denied that Dr. Parra had informed the Patient or the Respondent that her colon had ruptured during the first surgery and faecal matter and other body fluids had leaked into the system which needed to be immediately rectified. The second surgery was conducted by Dr. Parra assisted by other qualified Doctors and it was found that she had severe sepsis with peritonitis endometriosis associated with pelvic inflammatory disease, from which she had been suffering prior to the surgery. Because Patient required prolonged ventilator support and other intensive care facilities, which were not available in the Appellant hospital, she was in her own interest advised admission in an advanced medical centre for which necessary arrangements were made by the Appellant and she was transferred to Sri Ramchandra Medical College Hospital at about 9.00 p.m. accompanied by Dr. Parra, an Anaesthetist and a nurse. It was reiterated that there was no medical negligence or deficiency in the treatment of the Patient and the entire medical expenses came to only Rs.25,330/- which was borne by the Appellant.
4. The State Commission after hearing the parties and on the basis of evidence filed before it, particularly the statement of Dr. Parra, who admitted that there were some technical problems and defects with the Laparoscopy equipments which he had faced while conducting the Laparoscopy, concluded that medical negligence and deficiency in service was clearly established. In this connection, the State Commission, inter alia, observed as follows :
So far as the present case is concerned, there is concrete unimpeachable evidence in the shape of the report of Dr. Parra.
The equipment was not in good shape; the person who were assisting him were novices and had no previous experience with the use of laproscope; during the surgery, there was some malfunctioning of the equipment; there was a tear in the colon and as to how it happened Dr. Parra could not explain; the opposite party hospital was unhygienic.
There is least doubt that the opposite party had been negligent and there was deficiency in service..
The State Commission while recording that it would be difficult to quantify the amount of compensation in the case of death of ones spouse, after taking into account all the facts of the case, held that a compensation of Rs.5,00,000/- would be just and reasonable and accordingly directed the Appellant to pay the Respondent-Complainant the said amount together with Rs.5000/- as litigation costs within a period of two months.
5. Aggrieved by the order of the State Commission, the present first appeal has been filed.
6. Learned Counsel for the Appellant made oral submissions. Learned Counsel for the Respondent-Complainant was not present but written submissions were taken on record.
7. Counsel for the Appellant stated that the medical records filed in evidence clearly indicated that there was no deficiency or negligence on the part of the Appellant in the treatment of the Patient, including the Laparoscopy as also the surgery. It was stated that the Patient had been brought to the Appellant with Endometrial Cysts and fibromas of the uterus, for which a diagnostic Laparoscopy was necessary, and the procedure was conducted after all the pre-operative tests. It was found during the Laparoscopy that the Patient also had pelvic inflammatory disease which caused complications leading to sepsis and peritonitis. This was not the result of any negligence as alleged, including accidental perforation of the colon, and despite the best medical care and treatment, including a second surgery, these complications persisted. No payment was taken from the Patient by Appellant which was a charitable institution and which also paid for her entire treatment at Sri Ramachandra Medical College Hospital, where she expired. All the Doctors, including Dr. Parra, were well qualified and professional Doctors and, therefore, the findings of the State Commission were not based on correct appreciation of the facts as also the evidence on record.
8. Counsel for the Respondent-Complainant in the written arguments contended that from the statement of Dr. Samuel Parra before the State Commission it was clear that the Laparoscopy procedure conducted by him was totally botched up. There was malfunctioning of the equipments and during the procedure colon of the Patient got ruptured resulting in the faecal matters entering into her system, because of which another emergency surgery had to be conducted on 27.05.2000, which was also not conducted properly and even the surgical wounds were not properly incised and closed.
These facts were confirmed by the Doctors in Sri Ramachandra Medical College Hospital, who despite their best efforts could not save the Patient because by then the whole system of the Patient had collapsed. The State Commission had, therefore, rightly concluded in its well-reasoned order that during the surgery there was a mistake which resulted in the tearing of the colon and subsequent complications which could not be managed and rectified by the Appellant and its Doctors.
9. During the pendency of the present first appeal before this Commission Respondent-Complainant died and his legal representatives were brought on record.
10. We have considered the oral and written submissions made by learned Counsels for the Appellant and the Respondent-Complainant respectively. Patients admission in the Appellant hospital with a diagnosis of ovarian cyst and her examination by a Doctor from USA, Dr. Samuel Parra, who confirmed the diagnosis and offered to remove the cyst by Laparoscopic method, is not in dispute. It is further a fact that following this procedure, complications developed, because of which a second surgery became necessary, during which it was found that body fluids and faecal matters had leaked into the system and also that both ovaries had to be removed and sent to a laboratory for tissue culture. It is further a fact that on the Appellants own advice Patient was shifted to a higher health facility i.e. Sri Ramachandra Medical College Hospital, where despite her being in the ICCU, she could not be saved. Dr. Parra while denying that there was any medical negligence and deficiency in service on Appellants part in conducting the Laparoscopy as also the subsequent surgery had also admitted on oath before the State Commission that the Laparoscopy equipment was not available in the Appellant hospital and had to be obtained from another hospital just two days prior to the surgery. It was further admitted by Dr. Parra that right from the beginning there were technical difficulties while conducting the procedure since the insulator needle was not working properly so the umbilical trochar was placed by open technique. Further, there were problems with the suction irrigation system as the rubber tubing of the suction were collapsing when applying the suction which was time consuming. Dr. Parra has also admitted that on 26.05.2000 there were intra-abdominal infections and there was also possibility of Peritonitis, which was not responding to conservative management. Therefore, a second exploratory surgery was conducted, wherein Dr. Parra stated that the Patient was explored with the finding of a small tear of the sigmoid colon and there was also a residual fluid from the irrigation during the Laparoscopy. However, despite stating all these facts, Dr. Parra concluded that Patients death was not because of any complications that can arose in such surgeries and was because of pelvic inflammatory disease. We are not able to accept this contention of Dr. Parra in view of the fact that he has clearly stated that there were serious technical difficulties while conducting the Laparoscopy which confirmed the Respondent-Complainants contention that the Patient was used as a guinea pig. Further, the Appellant and Dr. Parra were not able to satisfactory explain the tear in the colon which led to the sepsis and peritonitis, except to say that a non-fault irreparable damage had occurred.
From the evidence of Dr. Parra, it is also clear that soon after the surgery, the Patient continued to face a number of medical problems and blood was also transfused to her. These facts are confirmed from the medical records of both Appellant hospital and Sri Ramachandra Medical College Hospital filed in evidence by the Appellant. The State Commission after considering the evidence on record had, therefore, concluded that there was medical negligence and had specifically stated in Para-9 of its order as follows :
It is thus clear that during the surgery, there was a mistake done which resulted in the tearing of the colon. We have also noticed that the equipment was also defective. When even according to Dr. Parra, the equipment was defective it is a moot question whether Dr. Parra and his associate doctors and assistants should have proceeded further and done the operation. Even, according to Dr. Parra, there was a concealed non-noticeable injury of the colon that manifested itself in the postoperative course. He had also realised that a non-fault irreparable damage had occurred. In such a situation, the one and only conclusion that could be reached is that there was negligence which resulted in serious complications.
The patient had to be shifted to the tertiary for management and of course, things had become unmanageable and ultimately the patient collapsed and died.
11. We are in agreement with the finding of the State Commission that Appellant was guilty of medical negligence and deficiency in service right from the beginning in not checking whether the Laparoscopy equipments were working, because of which admittedly several problems arose during the Laparoscopic procedure, including a tear in the colon. If indeed the Laparoscopy had gone smoothly as contended by Appellant, then there would not have been need for a second surgery, which was done to redress the deficiency of the first surgery. Further, Doctors in the Appellant hospital themselves admitted that they were unable to treat the Patient in their hospital, which clearly indicates that by the time she was referred to higher medical facility, her condition was very critical and could not be reversed. Sri Ramachandra Medical College Hospital where she was transferred has also confirmed that the Patients condition at the time of admission was very critical.
12. The principles of what constitutes medical negligence is now well established by a number of judgments of this Commission as also the Honble Supreme Court of India, including in Indian Medical Association v. V.P. Shantha [(1995) 6 SCC 651]. One of the principles is 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 (emphasis provided).
In the instant case, it is very clear from the facts stated in the foregoing paragraphs that a reasonable degree of care was not taken in the treatment of the Patient. This is apparent, as stated earlier, from the fact that even the Laproscopy equipments were not checked before they were used because of which several problems arose with its functioning during the procedure as admitted by the Doctor who conducted the procedure. Apart from this, the Doctors from the Appellant hospital have not been able to explain how the colon tear occurred and why a third surgery may have been necessary because of which even the surgical wounds were not properly sutured. The instant case is a case of res ipsa loquitur where medical negligence is clearly established.
12. We, therefore, agree with the order of the State Commission and uphold the same in toto. The present first appeal is dismissed. Appellant is directed to pay to the Respondent-Complainant a sum of Rs.5,00,000/- as compensation together with litigation costs of Rs.10,000/- within a period of two months. No costs.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Sd/-
(DR. S.M. KANTIKAR) MEMBER Mukesh