National Consumer Disputes Redressal
United India Insurance Co. Ltd. vs Md. Shoyub on 26 July, 2011
This appeal has been filed by the appellant to challenge the order dated 30 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI First Appeal No. 425 of 2005 (From the order dated 30.08.2005 in Complaint Case No. 17 of 1997 of the Karnatakla State Consumer Disputes Redressal Commission, Bangalore) D. Pampa Pathi (dead) through LRs., Appellants 1. J. Sarswathamma D/o D. Pampa Pathi 2. B. Anand S/o D. Pampa Pathi 3. M.N. Sharada D/o D. Pampa Pathi 4. K. Nagaratna D/o D. Pampa Pathi 5. P. Rajashree D/o D. Pampa Pathi All residents of No.15/22, Chapparadahalli Hospet-3, Karnataka Versus 1. Dr. H.V. Dayanand Respondents Orthopaedic And Trauma Surgeon No.2111/1, 4th Main M.C.C. A Block Davangere-4 Karnataka 2. Swamy Poly Clinic No.21/22/Am, 4th Main Road M.C.C. A Block Davangere-4 Karnataka Rep. By a) H.V. Dayanand b) Nalinakshi W/o Mallikarjun 1st Cross, Siddalinga Layout Behind Valmiki Hostel Tumkur, Karnataka c) Nagarathna W/o Thippeswamy Govt. Hospital Quarters Chitradurga, Karnataka d) Smt. Sujatha W/o Jagadish C.P.I. Bagalkot Karnataka e) Smt. Savithri W/o Basavaraj 4th Main, Vivekananda Layout Davangere Karnataka f) Manjula W/o Mahendra Siddaganga Polytechnic College Tumkur, Karnataka 3. Branch Manager The National Insurance Co. Ltd. Davangere Branch, Davangere, Karnataka BEFORE HONBLE JUSTICE MR. R C JAIN, PRESIDING MEMBER HONBLE MR SURESH CHANDRA, MEMBER For the Appellants : Mr. Ananga Bhattachacharya for Mr. Rohit Rao, Advocate For the Respondent Nos.1 to 3 : Mr. S.K. Ray, Advocate PRONOUNCED ON 22nd July, 2011 ORDER
PER SURESH CHANDRA, MEMBER This appeal has been filed by the appellant/complainant to challenge the order dated 30.08.2005 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (State Commission for short) by which the State Commission dismissed the complaint no.17/1997 filed by the him under section 17 of the Consumer Protection Act seeking direction against OPs to pay a sum of Rs.9,80,000/- with interest @ 15% p.a. to the complainant. In view of the death of the appellant during the pendency of the appeal, the names of his legal representatives were brought in to pursue the appeal. Respondents herein were OPs before the State Commission.
2. The case of the appellant/complainant is that he was suffering from a slipped disc over a long period of time for which he went to Bapuji Hospital at Davangere where Dr. Krishnamurthy, a Neurologist examined the complainant during the months of April/May 1995 and advised him to undergo a neurosurgery. In the meantime, on hearing of Respondent no.1, the complainant/appellant consulted him for a second opinion presenting before him the reports of Bapuji Hospital. Respondent No.1 after seeing the medical reports of the appellant, told him that there was no need to go to any Neurosurgeon for Neuro surgical consultation as he himself would operate and relieve him from pain and suffering. Accordingly, Respondent No.1 operated on the appellant at Respondent No.2 Hospital on 21.5.1995 to cure the deformities. After the operation, the complainant/appellant developed certain complications and difficulties such as severe urine retention problem, constipation etc. To ease the pain, catheter was inserted, laxatives were administered and enema was also given. It is stated that thereafter neurogenic bladder and rectal problems arose. There was involuntary passing of stool and urine as the rectal passage was completely open. Resultantly, there was also continuous soiling. It is the case of the complainant/appellant that all these complications were caused due to improper and wrong diagnosis, treatment and attention by the OP doctor. The OPs did not take reasonable and proper care and did not treat the patient even though he repeatedly requested as his condition worsened day-by-day. OP/Respondent No.1 thereafter referred the complainant/appellant to approach an Urologist and hence he was under urological treatment of Dr. M. Mamani from 26.6.1995 to 10.7.1995 as an in-patient in Bapuji Hospital. However, there was no improvement in the condition of the appellant. The complications developed post-surgery continued even upto 1997 despite the appellant visiting doctors for treatment. The continuous dribbling of urine, involuntary passing of stool, improper and uncontrolled bowel movements continued. Further, appellant also developed septic spondylities and spondylosis. It is the case of appellant that all these complications arose due to the negligent act of Respondent No.1 and further by attempting to conduct neurosurgery despite Respondent No.1 being an Orthopedic surgeon, the respondent was negligent in rendering services to the appellant because of which, he suffered immensely. The consumer complaint in question, therefore, was lodged by the complainant/appellant before the State Commission on 17.2.1997. The complainant filed his affidavit in support of his submissions and he was also cross-examined. He also produced Exhibits C-1 to C-28 in support of his claim. The OPs/respondents filed their version and denied all the allegations made by the complainant in the complaint. OP/Respondent No.1 filed his affidavit of evidence and was cross-examined. He did not file any documents. On appraisal of the issues and the evidence adduced by the parties, the State Commission by its impugned order held that there is absolutely no evidence on record to show or suggest that the OPs/respondents were negligent in conducting the operation or the OP doctors were guilty of negligence in performing or discharging their professional duties. The State Commission, therefore, dismissed the complaint. Aggrieved by the impugned order of the State commission, the present appeal has been filed by the complainant on the following grounds:-
(i) The State Commission has completely ignored the case of the complainant that due to negligence of Respondent No.1, various complications and problems had occurred like involuntary passing of urine and stool, uncontrolled bowel movements etc. after the operation carried out by him.
(ii) The State Commission has not considered the positive and conclusive evidence and documents produced by the appellant and in its findings, conclusions are drawn without considering such evidence.
(iii) It has been erroneously concluded that the appellant himself was negligent in approaching the Respondent No.1 without appreciating and considering the evidence regarding the negligence of Respondent No.1. The State Commission has erroneously concluded that the appellant has not pleaded as to what exactly was the negligence during the operation while it has completely overlooked Exhibits C-20, C-21, C-23, C-24 and C-26 which clearly establish that the complications have arisen after the surgery. The State Commission has erred in concluding that the appellant has not filed an expert opinion to prove negligence of the respondents.
(iv) The documents produced by the appellant establish the fact that the appellant did not have the complications that arose after the surgery, prior to the date of operation. Since Respondent No.1 was merely an Orthopedic surgeon and yet he proceeded to conduct a surgery which was required to be conducted by a Neurosurgeon, this act on his part per se amounted to negligence but the State Commission has overlooked this important aspect. The State Commission has completely overlooked the evidence of Respondent No.1 himself in which he has admitted that he conducted the surgery for recovery of neurological problems and has proceeded to pass the impugned order merely on surmises and conjectures.
(v) It is wrong to conclude that involuntary passing of urine and stool was because of the old age of the appellant without any basis to substantiate this conclusion since the appellant was only 61 years old and except for the slipped disc, he was otherwise physically a normal person.
3. In view of the aforesaid reasons, the appellant has prayed for setting aside the impugned order and allowing the appeal.
4. Respondent no.1 has filed the counter reply followed by written submissions. In the written submissions filed on behalf of Respondent Nos.1 & 3, it has been stated that Respondent No.1 is a well-known orthopedic surgeon. He provisionally diagnosed of disc prolapse (lumbar) with stenosis of lumbar canal with sciatica with spinal muscle spasm clinically. He advised myelogram and CAT scanning with contrast study but the appellant did not turn up for a week and when he came to the clinic with increased pain and urinary problems, his CT/Myelo report revealed spinal cord and spinal nerve root compression of spinal canal stenosis and generative disc prolapse with neurological deficit with bladder and bowel involvement, right lower limit was thinned out both in the thigh and calf muscle, ankle and knee reflexes were absent on both sides and sensory blunting found below both knee joints and over the perianal region. It is submitted that as an experienced orthopedic surgeon, the OP respondent suggested laminectomy and lisccectomy operation to correct/cure his low back pain, weakness in both lower limbs and pain, numbness in right leg and other such related problems but not his urinary and bladder problems which were also existing then because the same were not his discipline/field of treatment/surgery. On the appellants consent to undergo for such an operation he was admitted on 19.5.95 to the OP-2 Poly Clinic and all the necessary tests and examinations were done by the experienced doctors who approved such operation on the then condition of the appellant. The operation was conducted with all due care as per the established medical norms and ethics and he was discharged on 2.6.95 with successful operation and after care with a request to report from time to time. But the appellant never came back after the discharge and perhaps visited many other doctors, quakes and also took advertised drugs on his own and ultimately consulted Dr. M. Mamani, a urologist in Bapuji Hospital during 26.6.95 to 10.7.95 though the Respondent no.1 had advised him to consult a neurosurgeon after the operation but he want to a urosurgeon ignoring his advice as well as the advice of Dr. Krishnamurthy who had examined him in early 1995. The appellant never came back to the OP Poly Clinic/Respondent no.1 for a long period of about 2 years prior to filing of the consumer complaint before the State Commission without making any complaint about the operation and / or its after-effect. In view of this, the OP/R-1 has submitted that wild allegations have been leveled by the appellant against him that urinary and bladder and bowel problems arose due to the operation conducted by him. According to him, these problems existed prior to the operation for which further examination by neurosurgeons and urologists had been suggested. It has, therefore, been denied that there was any medical negligence or deficiency on the part of Respondent no.1 who is very competent in his field of discipline of orthopedics and orthopedic surgery.
5. We have heard counsel for the appellant and the respondents at length. It is submitted by learned counsel for the appellant that it is a case where the respondent doctor even though he is an orthopedic surgeon, has tried to surgically treat the deceased appellant for what he perceived as neurological as well as bladder and bowel problems. He said that by virtue of Ex. C-2 (page 68 of Vol.II), it is established that the appellant did not have any bladder or bowel problem prior to the surgery. The respondent doctor perceiving that he had bladder and bowel problems, tried to conduct the surgery for treating it and consequently, the appellant suffered from post-surgical neurogenic bladder with faecal incontinence. Till his death, the deceased appellant had no control whatsoever on his bladder and bowel movement and hence the appellant, though alive, was confined to bed and had to face the shame, degradation and agony till he died. Learned counsel argued that the negligence of the respondent is established on account of the following aspects:-
(i) The respondent was not qualified to treat the patient by undertaking the surgery in question. By his own admission, respondent in his evidence at pages 40-41 of Vol.II, has admitted that he operated the appellant for his bladder problem. He referred to the following part of his statement:-
The case sheet is maintained in the hospital. It is not correct to say that on 5.4.95 when the complainant approached me he had no bladder or bowel problems, and also before operation on 21.5.95. I operated him on 21.5.95 for recovery of neurological problem and bladder and bowel problem. I took the opinion of neurologist before operation. I do not remember his name. I did not have the assistance of neurosurgeon at the time of the operation or before operation.
(ii) Lack of prudent approach Learned counsel, therefore submitted that it becomes abundantly clear that the respondent neither had the requisite knowledge nor the skill nor the competence to surgically treat his patient for bladder and bowel incontinence. It is submitted that even if the respondent perceived the appellant to have neurological and bladder and bowel problems, as a prudent practitioner he ought to have referred him to the neurologist and urologist rather than he proceeded to surgically treat these problems on his own without being qualified to do it. This ipso-facto establishes that the respondent was very negligent and did not act as a prudent practitioner of medicine.
(iii) Expert evidence Learned counsel submitted that it would be wrong to suggest that there is no expert evidence regarding the alleged negligence on the part of the respondent doctor. He submitted that the expert evidence is contained in the report of assessment of disability dated 19.2.99 submitted by Dr. P. Niranjanmurthy, Sr. Specialist Orthopedic Surgeon, Bowring & L.C. Hospital, Bangalore which is placed on record as Ex. C-23 at page 89 of Vol.II. He referred to the relevant portion at page 90 which reads as under:-
As regards to his ano urinary incontinence, there is continuous dribbling of urine with absolutely no reflexes and bladder distension is present. Besides there is fecal incontinence and continuous voiding of stools with full loss of reflexes. Obviously this is the most worst part of his ailment. He was referred to Urologists opinion and advise in this matter. After verifying the records and Investigations reports, and by examining him, he made a diagnosis of POST SURGICAL NEUROGENIC BLADDER WITH FAECAL INCONTINENCE and suggested further investigations to rule out the impending problems and complications on Kidney due to this Neurogenic bladder.
The findings of MRI, subsequent opinions of Neuro physicians and surgeons and Urologists concur the established view that the possibilities of recovery of Loss of urinary and anal reflexes is most unlikely and the ailments with which he is suffering will continue for good. Besides he is likely to develop further complications of Kidney and Intestine, and he should be under consent medical supervision.
(iv) Continuing his arguments, learned counsel submitted that the aforesaid opinion of the expert shows that because of the negligence in the surgical procedure, the appellant suffered post-surgical neurogenic bladder with faecal incontinence and as a consequence of this, he had to suffer the humiliation of not being able to control his urine and stool and his ability to lead a normal life with basic hygiene and dignity was lost forever and the agony and degradation which he had to face on account of bowel and bladder incontinence, was so immense and excruciating that he actually welcomed death as a relief. He submitted that the appellant had approached the respondent doctor for his back problems and the respondent doctor had also diagnosed that the appellant was suffering from canal stenosis.
He submitted that while the deceased appellant had given consent for surgery to ameliorate canal stenosis, he was neither informed nor his consent was taken regarding the surgery or treatment for his bladder and bowel problems. It was contended by him that the State Commission instead of considering the admission of the respondent doctor or the documentary evidence filed by the appellant, has completely misdirected itself and without appreciating as to what was the case of the appellant, erroneously concluded that the appellants contention was that he developed a slipped disk after the surgery and hence it proceeded to hold that the appellant was himself negligent in going to a orthopaedician instead of a neurologist. In support of his contentions, learned counsel has relied on the judgement of the Apex Court in the cases of Spring Meadows Hospital Vs. Harjol Ahluwalia [(1998) 4 SCC 39)] and V. Kishan Rao Vs. Nikhil Super Specialty Hospital [(2010 5 SCC 513]. He, therefore, submitted that in the present case the very fact that the doctor tried to surgically treat the appellants so-called bladder problem though being completely unqualified to do the same, is sufficient to conclude that he has been grossly negligent. The negligence of the doctor as well as the error of the State Commission thus having been established, the appeal deserves to be allowed.
6. Refuting the contentions raised by counsel for the appellant, counsel for the respondents submitted and reiterated that the appellant came to the Respondent no.2 Hospital on his own ignoring advice of Dr. Krishnamurthy in early 1995 and consulted Respondent No.1 who is a well-known Orthopaedician who tried to do his best while treating the appellant throughout. Without rebutting the sequence of events which have already been stated in the written submission, learned counsel said that the doctor, having taken utmost care as a professional while treating the appellant, could not be held guilty of medical negligence unless there is adequate evidence to prove it. To support his contention, he relied on the celebrated Bolam Test by English Judges which has been discussed at length and adopted by the Apex Court in a catena of judicial pronouncements and guidelines for the courts to adjudicate the cases of medical negligence, the latest judgment referred by learned counsel being the judgement of Apex Court in the case of Jacob Mathew Vs. State of Punjab & Anr. [(2005) 6 SCC1] where it has been observed that:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolams case, WLR at p.586 holds good in its applicability in India.
7. Learned counsel for the respondent further submitted that while dealing with the concept of medical negligence, the Apex Court has held that the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do and the hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent. Keeping in view these requirements, learned counsel relied on another judgement of the Apex Court in the case of Martin F DSouza Vs. Mohd. Ishfaz [1(2009) CPJ 32 (SC)] where the Honble Supreme Court held that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing, one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. In view of this legal position and the successive judgements of the Honble Supreme Court, learned counsel submitted that the advice of Dr. Krishnamurthy in the present case in early 1995 is very relevant where the appellant was advised to consult a neurosurgeon for his urinal and bladder problems and also diagnosed IMP Lumber Canal Stenosis and disc prolapse for which Respondent No.1 suggested the operation and did it as per the guidelines and ethics of medical literature (Campbells Operative Orthopedics). In view of these aspects, which have been duly considered by the State Commission, learned counsel submitted that there is no substance in the appeal and the same is liable for dismissal by confirming the impugned order.
8. Winding up his arguments, learned counsel for the respondents further submitted that in this case no report from any medical board has ever been produced in order to suggest that there was any medical negligence on the part of Respondent No.1 in the operation nor any expert opinion of any well-known orthopedic surgeon in the field was ever produced and, therefore, the burden of proof is on the appellant to prove negligence in the operation, if any, at all, and the respondent doctor cannot be held liable for any negligence while performing his professional job.
9. We have carefully considered the submissions and contentions of the respective counsels and perused the record. While the counsel for the appellant has submitted that based on the undisputed facts of the case and the documentary evidence including the expert evidence placed on record by the appellant, the medical negligence on the part of Respondent No.1 is established beyond doubt and considering the ratio laid down by the Apex Court in the Nikhil Super Specialtys case (supra) wherein the earlier ratio of Martin DSouza s case has been distinguished, there is no requirement of any additional expert opinion and since the State Commission has erred in ignoring them, the impugned order suffers from this serious legal infirmity, on the other hand, learned counsel for the respondents has concluded that in the absence of any report from any medical board or any expert opinion establishing medical negligence on the part of the respondent doctor, the appellant has failed to discharge the burden of proof regarding medical negligence alleged by him against the respondent doctor. In order to reach any conclusion, we consider it appropriate to recall the broad facts as well as the important contentions raised by the two sides. It is not in dispute that the appellant had initially consulted Dr. Krishnamurthy in Bapuji Hospital at Davangere who after examining the appellant and also after going through the various investigation reports advised neurosurgical consultations. The history of the patient, the diagnostic results as sell as his own diagnosis and advice are duly recorded in Ex. C-2. After these consultations, rather than going in for a neurosurgical consultation, admittedly the appellant chose to approach the Respondent No.1 in an Orthopedic hospital. All the investigation reports as well as the OPD card containing the advice of Dr. Krishnamurthy of Bapuji Hospital were produced by the appellant before the Respondent No.1. The Ex. C-2 specifically indicates and establishes that the appellant did not have the bowel and bladder disturbances prior to the surgery carried out by the respondent. It is submitted on behalf of the respondent that after provisionally diagnosing disc prolapse (lumbar) with stenosis of lumbar canal with sciatica with spinal muscle spasm clinically, the respondent further advised certain investigation and after going through the investigation reports, he advised laminectomy and lisccectomy operation to relieve the compression of spinal cord and spinal nerve root by exercising (nibbling out) the protruded disc and part of the vertebral bone. According to the respondent, the operation conduced by him was successful and the entire surgical procedure went uneventful post-operatively. This submission on behalf of the respondent doctor, however, is not established from the record. It cannot be disputed that the appellant rather than recovering from his problems developed some serious post-surgical disorders for which eventually the respondent himself had to refer him to urological consultations. It is submitted on behalf of the respondent that he actually meant neuro-consultations. Be that as it may, admittedly the appellants condition was such which required both these consultations and the documents placed on record bear testimony to the fact that post-operative sufferance by the appellant was not part of any falsehood or concoction just to blame the respondent doctor but it was for real. Once such documents and reports both pertaining to the period before operation and consultation with the respondent and after the operation was done by the respondent have been placed on record, the burden of proving that the post- operative complications did not occur on account of any negligence on the part of the respondent doctor shifted and was squarely on the respondent doctor to discharge. To this extent, we are of the view that it was for the respondent to produce convincing evidence to counter the report of Dr. P. Niranjanmurthy, Sr. Specialist Orthopedic Surgeon. This report is placed at Ex.C-23. In fact, without getting into the question of experience and professional competence of Respondent No.1 as an orthopaedician, it is important and extremely relevant to note that the essence of investigation report carried out at the instance of Dr. Krishnamurthy of Bapuji Hospital as well as those done later when the appellant consulted the respondent, do suggest that it was a clear case which was required to be handled by a neurosurgeon as specifically advised by Dr. Krishnamurthy. Counsel for the appellant has drawn our attention to the apparent and yet fine distinction between the job of an orthopaedician and that of a neurosurgeon and it does not require any additional emphasis or persuasion to say that. In view of these aspects, certain things become clear from the facts of this case particularly the history of the patient and the investigation reports. Firstly, the respondent was not adequately equipped professionally as a mere orthopaedician to undertake the surgery in question and if at all there was any doubt in this regard, as a doctor and a reasonably prudent professional, the respondent should have given the benefit thereof by not undertaking such a grave risk by carrying out the surgery in question for which he was not adequately equipped and qualified. His own statement during cross-examination (supra) clearly establishes this deficiency and negligence on his part. In the face of such an admission on the part of the respondent himself and the fact that the investigation reports clearly established that it was a case of neurosurgery rather than a simple surgery, the respondent cannot escape from the non-professional advice given by him to the appellant and eventually himself carrying out the operation in question although it was apparently with the consent of the appellant. The consent in such a case obviously cannot absolve the doctor from the apparent professional negligence on the part of the doctor. The respondent on whom such a burden clearly lay has failed to put forth any unbiased expert opinion in his favour except filing a copy of the Campbells Operative Orthopedics which does not give us any basis as such to formulate an opinion in favour of the respondent. In fact we agree with the submissions of learned counsel for the appellant that this is a fit case where the ratio of the recent judgment of Nikhil Super Specialty Hospital (supra) will be fully attracted where their Lordships of the Supreme Court have observed as under:-
50.
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.
10. Applying the aforesaid ratio to the facts and circumstances of the present case, we are convinced that it was for the respondent to lead convincing evidence against the allegations of medical negligence against him which he has failed to do. On the other hand, the appellant has placed sufficient documentary evidence which support his allegations of medical negligence. It is interesting and extremely relevant to note in this case that the finding of neurological consultation given by Dr. Krishnamurthy which was ignored by the respondent while advising the operation to the appellant came back by way of a suggestion by the respondent himself after he had already carried out the surgery in question but unfortunately it was too late for the appellant since the irreversible damage had already been done. We find it quite ironical on the part of the respondent to suggest by way of his defence that the appellant being an educated person himself is guilty of negligence in approaching him who is an orthopaedician rather than going to a neurosurgeon.
11. In view of the above, we hold that the Respondent Nos. 1 & 2 are liable for medical negligence because of which the appellant developed additional complications thereby making him to suffer immensely. The State Commission obviously erred in ignoring these important aspects of this case which are given in documents placed on record by the appellant while unsuiting the claim of the appellant against the OPs. The impugned order, therefore, cannot be sustained in the eye of law. The same is, therefore, set aside. While accepting the complaint of the appellant and holding the respondents jointly and severally liable for the deficiency on their part and keeping in view the resultant suffering undergone by the complainant and the entirety of the other facts and circumstances of this case, we consider it appropriate to direct the Respondents No.1 & 2 to pay a compensation of Rs.3,00,000/- along with interest @ 6% p.a. on this amount w.e.f. the date of the complaint till actual payment and an amount of Rs.10,000/- by way of cost of litigation to the Legal Representatives of the deceased complainant within a period of one month from the date of this order failing which, they shall be liable to pay further interest @ 12% p.a. on the total decretal amount for the period of delay after lapse of one month from the date of this order till actual release of the amount. The appeal stands allowed and disposed of in terms of these directions.
[ R C Jain,J ] Presiding Member .
[ Suresh Chandra ] Member SS/