State Consumer Disputes Redressal Commission
Aarif Nursing Home, And Another vs Sri Bammidi Dalayya S/O Late Ramayya And ... on 4 March, 2011
BEFORE THE A
BEFORE THE A.P STATE
CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.337 OF 2009
AGAINST C.C.No.589 OF 2003 DISTRICT FORUM-II VISAKHAPATNAM.
Between:
1. Aarif Nursing Home,
Rep. by its Doctors mehdi and
Aslam
D.No.30-11-6, Lakshmi Street, Dabagardens
Visakhapatnam
2. Dr.G.Arjuna, M.S.,
(General Surgeon)
S/o Dharmaiah, Hindu aged 50 years
R/o 49-58-1/A, Green Park,
Seethammadhara
Visakhapatnam-13
Appellants/opposite
parties no.1 and 2
A N D
1. Sri Bammidi Dalayya S/o late Ramayya
Hindu, aged 60 years,
2. Smt Bammidi Parvathi S/o Dalayya
Hindu, aged 50 years,
R /o Akkayyavalasa Village
Kotabommali
Mandal, Srikakulam District
Respondents/complainants
Dr.Suseela,
MBBS., W/o B.Govinda Rajulu
Hindu, aged 45 years, Private Medical Practitioner
Uma Clinic, Peda Waltair, Visakhapatnam
Respondent/opposite
party no.3
Counsel for the Appellants Ms V.Chaitanya latha
Counsel for the Respondents No.1 & 2 Sri Bypa Arunkumar
Counsel for the Respondent no.3 None
QUORUM: SRI SYED ABDULLAH, HONBLE MEMBER.
AND SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER FRIDAY THE FOURTH DAY OF MARCH TWO THOUSAND ELEVEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The opposite parties no.1 and 2 are the appellants.
2. The complainants daughter Bamidi Kalyani was admitted to the hospital of the opposite party no.3 with the complaint of pain in her stomach. After conducting tests, the opposite party no.3 diagnosed her suffering from appendicitis and advised her to be shifted to the opposite party no.1 nursing home on 19.2.2002 where tests were conducted and the patient was advised to undergo operation. The second opposite party conducted the operation 20.2.2002. The patient was kept in ICU for seven days. Ischiorectal Abscess was drained under general anaesthesia. The wound was left open to granulate. The patient was advised for gradual mobilization with the assistance of a walker and she was encouraged to use toilet instead of a bed pad. The patient developed with faecal fistula with residual infection. Soft solids and laxatives were administered to the patient for spontaneous closure of the fistula. The patient left the opposite party no.1 hospital and she was admitted to King George Hospital where she was treated for three days and died 29.4.2002.
3. The complainants contended that the opposite parties no.1 to 3 were negligent in rendering the treatment as a result of which the patient died and the report of experts had shown the cause of death as septic shock due to multiple infected perforations of loops of intestine and faecal fistulae and peritonitis with infected laparotomy.
4. The opposite party no.1 has submitted that no negligence was on their part and the second opposite party had conducted the operation successfully and anesthetic recovery was very smooth as also the patient was kept in the ICU until her general condition was improved.
5. The second opposite party has contended that the ultrasound report was suggestive of gas in the anterior abdomen and paracolic space was likely due to colorectal perforation and after going through ultrasound report he had obtained consent of the parents of the patient and conducted surgery. It was submitted that every care was taken during all the stages i.e., preoperative stage, operative stage and post operative stage. There was discharge in the form of serous purulent material with bits of necrotic fat due to narcotiring fascitis during the post operative stage and the wound was regularly dressed and ischeorectal abscess was drained under general anaesthesia. The wound was left open to granulate. The patient was encouraged to take soft solids and laxatives for closure of fistula. The complainants created unpleasant and unhappy atmosphere and attacked the second opposite party and got discharged the patient from the opposite party no.1 hospital by creating nuisance and dharna before the opposite party no.1 hospital. The infection developed after surgery was not due to the negligent treatment but it was due to uncontrollable and unforeseen conditions which are likely to arise in such kind of operation.
6. The opposite party no.3 has resisted the claim contending that after examining the patient he found that there was a diffuse tenderness all over the abdomen and the abdomen was bloated. The patient developed vomiting. He had administered pain killer and advised for ultrasound sonogrpahy of abdomen and after going through the scan report, he had referred the patient to the opposite party no.1 hospital. The second opposite party informed the opposite party no.3 that the condition of the patient was bad. It was submitted that there was no negligence on the part of the third opposite party.
7. The complainant no.1 has filed his affidavit and Exs.A1 to A10 were marked on behalf of the complainants. On behalf of the opposite parties, Dr.Aslam, representative of opposite party no.1, Dr.G.Arjun, the opposite party no.2 and Dr.Suseela, the opposite party no.3 filed their respective affidavits. No documents were filed by them.
8. The District Forum allowed the complaint directing the opposite parties no.1 and 2 to pay `1,00,000/- to the complainants together with costs of `10,000/-. The complaint against the opposite party no.3 was dismissed.
9. Feeling aggrieved by the order of the District Forum, the opposite parties no.1 and 2 preferred this appeal contending that the District Forum has not considered the expert opinion and that they diagnosed the patient with toxic peritonitis and treated her with great concern from 19.2.2002 till 23.4.2002.
10. During pendency of the appeal the opposite parties no.1 and 2 have filed the medical record of opposite party no.1 hospital, nursing notes, medical reports etc., and they are marked Exs.B1 to B9.
11. The point for consideration whether the opposite parties no.1 and 2 were negligent in rendering treatment to the complainants daughter and if so, to what relief?
12. The complainants daughter by name Bammidi Kalyani was a student prosecuting B.Sc., developed severe pain in her abdomen on 17.2.2002 and she was taken to the opposite party no.3. The opposite party no.3 diagnosed her with diffuse tenderness all over the abdomen with the abdomen bloated and the patient developed vomiting. The opposite party no.3 had given pain killer and advised for ultrasound sonography at Vijaya Medical Centre who had given report and after going through the report, the oppose party no.3 referred the patient to the opposite party no.1 hospital pertaining to the opposite party no.2. The opposite party no.2 examined the patient and suggested for some more investigations.
The opposite party no.2 has submitted that the patient approached the opposite party no.1 nursing home on 19.2.2002 i.e., after a gap of 48 hours from the time she realized pain. The patient was affected with appendicitis and if operation was conducted within few hours thereof, it would result in inflammation, pus formation, gangrene and eventually perspiration leading to local peritonitis.
13. The second opposite party provisionally made clinical diagnosis that the patient was suffering with septic shock and toxic peritonitis. He treated the patient with IV fluids nasal oxygenisation antibiotics and dopamine drip. Blood test, X-ray of the abdomen and CT scan of the abdomen was stated to have been planned and on 19.2.2002 surgery was said to have been not performed because of the financial condition of the complainants. According to the second party, the patient was shifted against the medial advice to KG Hospital where she was stated to have been kept in general ward before being shifted to intensive care unit whereby, according to him, the patient had every chance of getting infection as sterilization was not possible at general ward at K.G.Hospital.
14. There is no dispute of the fact that the complainant had given consent for laparotomy etc. It is not in dispute that the opposite party no.2 had conducted the operation under general anaesthesia and the anaesthetists report show that premedication was given and during the time of operation BP and pulse were well maintained. The case sheet shows that on 20.2.2002 the operation was conducted and during the course of operation when the abdomen of the patient opened, collection of pus was seen. After the operation the patient was shifted to ICU. On 27.2.2002 the patient was discharged against the medical advice and it was stated that the complainant could not bear the costly treatment in the opposite party no.1 hospital and they were intending to get treated the patient at govt. hospital.
15. The expert committee of doctors had submitted report opining that the patient died of septic shock due to multiple infected perforations of loops of intestines and faecal fistulae and peritonitis with infected laparotmy. In the light of the finding of the experts doctors that the patient suffered septic shock due to infected laparotomy the complainants have discharged their initial onus and it is for the opposite parties no1 and 2 to show that the treatment particularly during the post operative stage they had rendered with great concern and there was no negligence on their part. The entire evidence brought on record before this commission during the pendency of the appeal does not support the case of the opposite parties no.1 and 2 that they were not negligent as the patient was kept for about seven days in the opposite party no.1 hospital after the surgery was performed on her and there was no sufficient explanation forthcoming from the opposite parties no.1 and 2 as to the steps taken to prevent the spreading of infection.
15. The Supreme Court has approved the concept of requirement of reasonable skill and exercise of duty by the medical practitioner in the course of treatment of the patient. In Jacob Mathew Vs State of Punjab and another reported in (2005) 6 SCC 1 held that:
The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
16. In V. Kishan Rao v. Nikhil Super Specialty Hospital and another reported in (2010) 5 SCC 513 held that in medical negligence cases, the principle of res ipsa loquitur is applicable and once the consumer forum comes to conclusion that the principle of res ipsa loquitor is applicable to the facts of the case, the complainant was held not to prove anything else. It was 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.
17. The spread of infection ie., infected lapartomy itself not a basis for coming to the conclusion that the patient died due to the negligence of the opposite parties no.1 and 2. At the same time it should not be lost sight of the fact that the patient treated for about seven days after the surgery was performed and the opposite parties no.1 and 2 had not taken any steps in view of the infected laparotomy causing harm to the health of the patient and it was incumbent on the opposite parties no.1 and 2 to refer the patient to higher centre which the opposite parties no.1 and 2 failed to do so.
18. The opposite parties no.1 and 2 had brought on record letter issued by the first complainant that he had received a sum of `60,000/- that was incurred by him towards the expenditure at opposite partyno.1 hospital for the treatment of his deceased daughter. On the backside of the letter he had endorsed that he had received `60,000/- and neither he nor his wife would not claim any amount in this record from the opposite parties no.1 and
2. The complainants have not denied issuance of the letter. The District Forum has awarded `1,00,000/-
with costs of `10,000/-.
The opposite parties no.1 and 2 have not explained as to why they had to return or pay the amount of `60,000/- to the complainants. Payment of the amount by the opposite parties no.1 and 2 to the complainants may not amount to admission of negligence on their part.
The opposite parties no.1 and 2 ought to have explained the circumstances which made them pay the amount of `60,000/- to the complainants. Taking into consideration the totality of the circumstances and the execution of the letter by the complainant acknowledging receipt of a sum of Rs.60,000/- from the opposite parties no.1 and 2, we modify the order of the District Forum by setting aside the amount of `10,000/- awarded towards costs and hold good the direction for payment of `1,00,000/- towards compensation out of which the complainants had already received a sum of `60,000/- and thus the opposite parties no.1 and 2 are liable to pay an amount of `40,000/- to the complainants.
19. In the result the appeal is partly allowed.
The order of the District Forum is modified. The opposite parties no.1 and 2 are directed to pay an amount of `40,000/-
to the complainants. There shall be no order as to cots in the appeal. Time for compliance four weeks.
MEMBER MEMBER Dt.4.03.2011 KMK*