State Consumer Disputes Redressal Commission
Dr. A. Senthilkumar Child Specialist ... vs K. Kasi S/O. Kothala Thevar Lake View ... on 26 July, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) Tmt. VASUGI RAMANAN MEMBER II F.A.NO.363/2008 (Against order in CC.NO.64/2007 on the file of the DCDRF, Theni) DATED THIS THE 26th DAY OF JULY 2011 Dr. A. Senthilkumar Child Specialist Vadagarai Periyakulam Appellant/ 1st Opposite party Vs. 1.
K. Kasi S/o. Kothala Thevar
2. K. Rajeswari D/o. K. Kasi
3. Minor K. Barath Kumar Rep. by his father and Guardian K.Kasi All are residing at E-Pudupatti, Endapulli (PO) Devadanapatti (via) Periyakulam, Theni (Dist) 1-3 Respondents/ Complainants
4. The Christian Hospital Rep. by its Medical Superintendent Periyakulam- 625 601
5. The Apollo Hospitals Rep. by its Administrator Lake view Road, K.K. Nagar Madras- 625 020 Respondent/ 2 & 3 Opposite parties The 1 to 3 Respondents as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.125000/- alongwith cost of Rs.5000/-. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.14.03.2008 in CC.No.64/2007.
This petition coming before us for hearing finally on 8.7.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ 1st opposite party: M/s. Anand, Abdul & Vinod Counsel for the 1- 3 Respondents/ Complainants: M/s. K.R. Lazar 4th Respondent/2nd opposite party: Served absent Counsel for 4th Respondent/ 3rd Opposite party: M/s. A.S. Chandrasekaran JUSTICE M. THANIKACHALAM, PRESIDENT
1. The 1st opposite party, having suffered a direction in the hands of the District Forum heavily, has come before this commission, challenging the said order dt.14.3.2008 inCC.No.64/2007, on the file of District Forum, Theni.
2. Tmt.
Jothi, wife of the 1st complainant, mother of complainants 2 and 3, was suffering from fever, and intense body and joint pain, for which she approached the 1st opposite party for treatment, on 29.8.2006, who administered, without examination, an injection in the left buttocks, causing pain and swelling As advised, she went to the 1st opposite party for review on 31.8.2006, and without examining, he administered second injection in the buttocks. At the time of giving injection, which was said to be Voveran, the first complainant has not exercised proper care, and skill whereas by his negligent act, caused excruciating pain and swelling.
3. As informed/ advised/ instructed by the 1st opposite party, since neither fever, nor swelling subsided, the patient was taken to 2nd opposite party hospital on 2.9.2006, where she was diagnosed as, suffering from diabetes mellitus, finding fault the injection was given by the 1st opposite party, which had caused septic. After preliminary treatment, the patient was referred to 3rd opposite party hospital and she was admitted on 3.9.2006 at 5.15 a.m. The cellulites was extending from let iliac Fossa to the left thigh, gluteal region, and upper 1/3rd of let thigh, for which, despite treatment given, the patient died on 4.9.2006 at 7.15 p.m., and the cause of death is classified as injection abscess/ gas producing organism/ severe septicemia./ HT secondary to cardiac arrest. But for the injection abscess and septicemia, the patient would not have died, for that the act of the 1st opposite party should be held as negligent.
By the untimely death of the wife, the 1st opposite party had lost the consortium, and other complainants lost motherly affection, as well family income also, since she was working, earning not less than Rs.5000/- per month. For the treatment of the patient also, the complainant had spent more than Rs.1,25,000/-. Under the above said circumstances, for the deficiency committed by the 1st opposite party alone, the complainants are entitled to recover a sum of Rs.125000/-, towards medical expenses, a sum of Rs.5 lakhs towards mental agony, and a sum of Rs.9 lakhs towards the loss of income, and a sum of Rs.5000/- towards cost, with interest Hence the complaint.
4. The brief defense of the 1st opposite party:
The 1st opposite party, admitting the patient, coming to him for treatment on 28.6.2006, resisted the case, interalia contending that taking into account the health hazards prevailing in the District viz.
chickunkunya, testing the patient for the complications, he has given Diclofenac Sodium, over the upper left arm, including prescribing Aceclofenc and parracetamol, that once again, when the patient came on 31.8.2006, he had given the same injection on the right upper arm, and thereafter the patient has not come to him for review, that since he is conducting only a clinic, without any space for giving privacy treatment, that too when he had attended the lady patient, he had given the injection only in the arms, not as incorrectly alleged by the complainant in the gluteal region, that the administration of injection has nothing to do with the cause of death, or the negligence and deficiency alleged, and that since the opposite party has not committed any deficiency, while giving the medicine, or administering the injection, he is not liable to answer the tall claim, praying for the dismissal of the complaint.
5. The District Forum, by its order dt.14.3.2008, has recorded a finding that Diclofence Sodium injection, ought to have been given in the gluteal region, and while administering the injection, the 1st opposite party failed to follow the proper procedure, thereby he caused injection abscess, that alone had developed the other complications, and applying the doctrine of res ipsa loquitur, came to the further conclusion for the death of the patient, the 1st opposite party alone should be held responsible, since other opposite parties are added as formal parties. On these findings, a direction came to be issued, to pay the medical expenses of Rs.125000/- as prayed for, a sum of Rs.5 lakhs was ordered as compensation for mental agony, and another sum of Rs.3 lakhs was ordered as compensation for loss of income, apportioning the amount to the complainants, with interest, which are impugned, by the sufferer, on various grounds, seeking redressal and relief.
6. It is the common case of the parties, that the 1st complainants wife patient, had been to 1st opposite party, for treatment, since she was suffering from fever, bodily pain and in the joints etc., on 29.8.2006. On that day, as pleaded in the complaint, and as admitted by the 1st opposite party, Diclofence Sodium injection was given i.e., Voveran injection. Despite the administration of the said injection, as well as prescribing two other medicines, for which no negligence is alleged, the patient was not relieved from the problems, and therefore once again she reached the 1st opposite party for treatment on 31.8.2006, on which date also one more Voveran injection was given to the patient. Thereafter, admittedly the patient has not gone to the 1st opposite party, for review or further treatment, and it was also not informed to the 1st opposite party, what had happened to the patient. According to the complainant, two injections were given on 29.8.2006 and 31.8.2006, in the gluteal region, whereas it is the case of the 1st opposite party, on the first day injection was given on the left upper arm, and 2nd injection was given on 31.8.2006, on the right upper arm, where the injection was given, we will discuss infra.
7. The patient was not recovered from the problems, and it appears, she had swelling and pain at the injection site, and not complaining the same to the doctor, who injected medicine, went to 2nd opposite party hospital on 2.9.2006. The 2nd opposite party, medically, clinically examining the patient, and detecting at the first time, diabetic mellitus and unable to treat the patient effectively, referred her to the 3rd opposite party hospital.
8. On 3.9.2006, the patient was admitted in the Apollo Hospital, Madurai at about 5.15 a.m. Despite their treatment, according to the complainants, in a best way, the patient expired at 7.15 p.m on 4.9.2006, and the death is not in dispute.
The cause of death, as per the certificate is injection abscess/ gas producing organism/ septicemia/ Hypertension, secondary to cardiac arrest. The complainants after the death of the patient, not finding fault with the hospitals, given treatment during the later stage, finding fault with the 1st opposite party alone, as if he alone had committed medical negligence in not properly injecting Voveran, causing injection abscess, which alone led to other complications, has filed the consumer complaint, claiming high amount, ended in partial success, and the result is this appeal by the affected 1st opposite party.
9. It is the trite law, that the initial burden is upon the complainant to prove, that the 1st opposite party had committed medical negligence. In this case the negligence alleged is, at the time of administration of Voveran injection, it caused injection abscess, then leading to other complications, till the death.
If this aspect is not proved, we feel we cannot support the finding of the District Forum, which had made the 1st opposite party to pay Rs.9,25,000/-. But, to prove that the 1st opposite party had committed any negligent act, except prescription, it is an admitted one, no other documents are produced.
In this case, death occurred to the patient, when there was Chickungunya, prevailing in that area, even as admited by the complainant, and therefore applying of res ipsa loquitor is not possible, as incorrectly held by the District Forum, in our considered opinion. Apart from the above, it is the duty of the complainant to prove that the death was due to the negligence ACT. In this case, in para 2, it is said administration of Voveran injection was given in the gluteal region, for which we have nil evidence, and unfortunately taking the words available in the death certificate injection abscess alone the District Forum drew the presumption, as if the cause for everything was absess, and therefore the 1st opposite party alone should be held responsible, which finding we differ, our reasons are hereunder. In this context, we have to see, how Voveran injection is to be administered, whether it will cause abscess, if so, at what point of time etc., in addition, where the injection was given to the patient concerned, in this case.
10. In the literature regarding the Voveran injection, it is said it should be given as intra muscular and in isolated cases, local abscess and necrosis, at the time of intra muscular injection is possible, thereby showing it is a known complication. It is not the case of the complainants, that Voveran injection was not given intra musculary, and admittedly intra muscular injection was given, whether it is on the upper arms or gluteal region. Therefore, assuming that there was local abscess, it will not automatically lead us to take a conclusion, applying doctrine of res ipsa loquitor, that because of the injection administered by the 1st opposite party alone, the patient had all the problems, and it should be proved, negligently he acted, for that we do not have any evidence at all.
11. Admittedly on 29.8.2006, as pleaded in the complaint itself, injection was given, that was later informed as Voveran. If the 1st opposite party had administered or injected Voveran negligently, causing unbearable pain, and swelling, in the ordinary course, the patient would not have accepted to take second doze, in the same region. A prudent doctor will not administer the second doze, when there was a swelling and pain and patient would not have accepted. But here even as admitted by the complainants, second injection was given on 31.8.2006 in gluteal region, whether right or left, not known, which would go to show that by administering the Voveran injection, the by 1st opposite parties would not have caused any injection abscess as incorrectly diagnosed by the opposite parties 1 and 2, probably in order to escape from the law, thereby throwing the burden upon the 1st opposite party.
12. The 1st opposite party is a child specialist, in addition to usual MBBS degree. As seen from the GO, issued bythe Government dt.22.5.2007, in the District of Theni, Chikungunya was prevalent, and therefore they issued a direction to the authorities concerned, to contact rapid response team. The Government had also informed in the G.O. dt.22.5.2007, no mortality further saying if any mortality occurs it will be due to other reasons. For instance, diabetic patients having chikungunya fever may collapse due to not taking of anti-diabetic treatment during the infection period, thereby indicating, if the person having diabetic was affected by Chikungunya, there may be mortality. Therefore, mere administration of voveran injection alone cannot be the cause for the death of the patient, in this case, and similarly injection abscess also cannot be the case for the death of the patient. In this context, we have to see, whether the injection given by the 1st opposite party had caused injection abscess, or there is a possibility of this kind of injection abscess, coming to the patient by taking injection elsewhere, not disclosing.
13. The opposite party relying upon the documents produced by the complainant would contend, that the patient ought to have taken injection in the gluteal region, elsewhere, and suppressing the same in the ordinary course, she has taken treatment with him, and for the injection abscess noticed, treated by the opposite parties 2 and 3, he cannot be held responsible. The 2nd opposite party, treated the patient from 2.9.2006, 7.45 am to 11.15 pm. The complaint made before the hospital was, severe pain in the left gluteal region, and upper thigh region.
Past history is had taken injection elsewhere one week back. The diagnosis injection abscess, in which portion of gluteal region, injection abscess had occurred, not properly noted, though severe pain is noted on the left gluteal region. Because according to the complainant, for two days, two injections were given by him, which injection had caused the problem, is not known. If we calculate one week back i.e. prior to 7 days from 2.9.2006, it will take us to 27.8.2006. But admittedly, the patient had taken treatment from the 1st opposite party only on 29.8.2006, and 31.8.2006, further the 1st opposite party is not running any hospital The very fact injection was taken in a hospital, elsewhere one week back as noted in case record, certainly would indicate, as rightly urged on behalf of the appellant, that the patient would have taken treatment elsewhere, and the injection given on the upper arms of the patient, whether it is left or right, would not have caused any injection abscess, even as noticed by the Christian Hospital. Therefore, unless it is proved by satisfactory evidence, that the 1st opposite party had given, Voveran injection on the left gluteal region. For the injection abscess, if any or the continued complication if any, the 1st opposite party cannot be made responsible, which was not at all analysed by the District Forum properly, leading to erroneous conclusion. Even assuming the worst that the 1st opposite party had injected voveran injection in the gluteal region, we are of the view, that cannot be the cause of death, and therefore, for the death, on the basis of the alleged negligent act, the 1st opposite party cannot be held responsible.
14. In the death certificate, under the heading cause of death it is said, Injection abscess/ Gas producing organism/ severe septicemia/ hypertension, to cardio respiratory arrest. We are not enlightened by producing any medical literature, that injection abscess alone will lead to gas producing organism, severe septicemia, hypertension leading to cardio respiratory arrest. The learned counsel for the appellant brought to our notice, a medical literature regarding Necrotizing infections of the skin and fascia, where we find some definition, regarding gas gangrene, which is described in the death certificate, as gas producing organism. It is said Gas gangrene occurs at the site of trauma or a recent surgical wound. The onset of gas gangrene is sudden and dramatic. About a third of cases occur on their own. Patients who develop this disease in this manner often have underlying blood vessel disease (atherosclerosis or hardening of the arteries), diabetes, or colon cancer, thereby showing if the patient was diabetic affected person, that may cause severe problem. Alternative term for gas gangrene is also available as Tissue infection Clostridial : Gangrene- gas:
Myonecrosis: Clostridial infection of tissues . It is also stated , patient who develop this disease spontaneously, often have underlying blood vessel disease diabetis or colon cancer. Thus it is seen, gas gangrene is an infection of the muscles layer, by clostridia, and extensive gas production, accompanied by tissue death, and severe systemic illness, for which urgent surgical referral for consideration of department is mandatory, and this is most dangerous in a case of diabetes mellitus.
Gas gangrene will create dreaded consequences, if inadequately treated, that can be seen from the literature This is a dreaded consequence of inadequately treated missile wounds, crushing injuries and high voltage electrical injuries. It is a rapidly progressive, potentially fatal condition characterized by widespread necrosis of the muscles and subsequent soft-tissue destruction. The common causative organism is clostridium perfringens, a spore forming, gram positive saprophyte that flourishes in anaerobic conditions. Other organisms implicated in gas gangrene include C.bifernnentans, C.septicum and C.sporogenes. They are present in the soil and have also been isolated from the human gasgtrointestinal tract and female genital tract. Non-clostridial gas producing organisms such as coliforms have also been isolated in 60-85% of cases of gas gangrene. Having the above medical definition for gas gangrene, now we have to see the treatment given at Christian Hospital.
15. As seen from the referral letter given by the Christian Hospital, they have not stated anything about the injection administered by the 1st opposite party, in his clinic, even referring it as hospital.
They have stated she is a newly detected diabetes mellitus, further diagnosing the problem as injection abscess septicemia, renal failure As we have already adverted to above, in the discharge summary, the injection given was one week back, and therefore the injection abscess mentioned in the discharge summary, for which the 3rd opposite party had given treatment, cannot be the basic or the cause for the further complication of the patient. In the Apollo hospital treatment records also, we are unable to find any indication, that because of the Voveran injection, not properly administered, injection abscess would have occurred, resulting other complications, and infact, except death summary, the complainants have not produced the case record, what was the history recorded etc., On the other hand, as pointed out supra, in the death summary, it is said voveran injection was given in the hospital, which cannot be the injection given by the 1st opposite party. Thus, in our considered opinion, the complainants have failed to prove that the 1st opposite party had given Voveran injection negligently in the gluteal region, whether it is left or right, that had caused injection abscess. We do not find any reason to disown or ignore the Solomon statement given by the 1st opposite party, who had stated that while giving treatment to the ladies, since he had no place of privacy, he used to administer injection intra muscular also in the upper arms, which we are inclined to accept, in view of the fact, that injection was not given by 1st opposite party one week prior to the date of treatment, taken in the 2nd opposite party hospital. This fact, coupled with the other medical literature, relied on by the learned counsel for the 1st opposite party, compels us to take a conclusion that the 1st opposite party, would not have committed any medical negligence, or deficiency in service, and therefore applying res ipsa loquitor, is not at all possible.
16. Generally, injection like Diclofenac Sodium are oily injection, is given intra muscularly. In the upper arms of the body also, intra muscular injection could be given, and it is not a prohibited one, though preference is gluteal region, in order to avoid complication. This being the position, for administration of injection, by the 1st opposite party, we cannot find any deficiency, that too, when there was no injection abscess on the left or right upper arm of the patient. As we have already adverted to above, when two injections were administered, on two days, even as per the case of the complainant, in the gluteal region, which injection had caused abscess, is also not explained.
Really, the patient had problems after 31.8.2006, and injection abscess had been occurred, generally she would have contacted the 1st opposite party, which is not the case.
Because of Chikungunya, prevailed at the time, being an unknown disease, and because of the Diabetes Mellitus, probably voveran injection would have aggravated the situation, which cannot be per se, treated as negligent act, since for joint pain, and bodily pain, Voveran Injection is recommended by the doctors, which has the tendency of causing local abscess, not leading to septicemia, if treated properly. If at all the 2nd and 3rd opposite parties, must have failed to treat the patient properly for injection abscess, for that the 1st opposite party, cannot be held responsible, as if he had caused death of the patient. Thus, viewing the case from all probable angles, coupled with facts and medical literature, we are of the considered opinion, the District Forum had committed an error, in fixing culpability upon the 1st opposite party, that should be removed, for that, the appeal deserves acceptance.
17. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.64/2007 dt.14.3.2008, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
VASUGI RAMANAN A.K.ANNAMALAI M.THANIKACHALAM MEMBERII JUDICIALMEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Medical