National Consumer Disputes Redressal
K.N. Koteshwara Bhatta vs Kasturba Hospital on 27 November, 2006
Equivalent citations: I(2007)CPJ258(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. The complainant/appellant filed a complaint against Kasturba Hospital, Manipal seeking compensation on account of medical negligence. The complaint was dismissed by the Karnataka State Consumer Disputes Redressal Commission by its order dated 7.10.1997. Feeling aggrieved, the present appeal has been filed.
2. The complainant/appellant had some liver problem. He approached Kasturba Hospital, Manipal on 30.4.1990. After ultrasound scanning, the Surgery Department of the hospital advised the complainant/ appellant for mini laparoscopy. It was performed on 5.5.1990. Since the doctors suspected vascular tumour, they suggested Angiography. It was done on 7.5.1990. On 7.5.1990. the complainant was administered local anaesthesia below the waist and some wirelike substance was thursted into the complainant's right thigh by two junior lady doctors. The consultant doctor, who was monitoring the entire procedure of the test, noted that the procedure adopted by them was totally improper and incorrect. While the test was being conducted, the complainant/ appellant started losing the sensations of the lower part of the body. The doctors stopped the test and immediately removed the thrusted wirelike substance from out of the thigh of the complainant/appellant. The entire body below the abdomen became lifeless. The doctors had performed this test without telling the complainant about the side effects and consequences of the test. The complainant/ appellant was suffering from paraplegia. The case of the complainant/appellant was that Angiography was done by the hospital authorities without any proper consent/ explaining the possible complications associated with their procedure. Proper post-test care was not taken and he was not referred even to a Neuro Surgeon immediately. The complainant/ appellant-sought the following reliefs from the respondent-hospital:
1. A sum of Rs. 9,50,000 as liquidated damages;
2. For a direction to the hospital to render medical help as per their letter dated 23.1.1991;
3. To give free educational benefits in their institution to the two minor children of the complainant/appellant; and
4. Costs and other reliefs.
3. The respondent-hospital contested the matter, inter alia, on the ground that the matter involved complex and intricate questions of medical science and technology, The patient was referred to the Department of Radiology for an Angiogram to pin point the nature of the problem. Angiography was done by a team of doctors headed by the Head of the Department, Dr. Ghosh who is MBBS, MD - (Radio Diagnosis) and is a doctor retired from the Army. As per usual procedure, local anaesthesia was injected to the complainant/appellant and a catheter was passed through the Tran femoral route into the aorta. The test dose of dye was injected to the complainant/appellant but immediately it was observed that the complainant/appellant started getting convulsions. On noting this, the doctor removed the catheter and remedial measures were taken. Despite all efforts, the complainant/appellant could not be brought to the normal condition. It was not a case of medical negligence. In the rarest of rare cases, the Medical Science discloses that the patients also react even to the test dose because of high sensitivity of the particular patient. It was purely a medical hazard and an accident, which had to be undertaken in the interest of the patient. This was the first case in the respondent hospital since 1984. It was denied that the doctor who was monitoring the test warned the junior lady doctors that the procedure adopted by them were totally improper and incorrect. However, it is not disputed that the rate of possibility of limb paralysis which might arose as a result of the test in question was not disclosed to the patient. The patient was not unqualified and it was prudent not to tell about the rare complication of paralysis of lower limb. As such, there was no deficiency in service. The hospital was rendering free service to all.
4. We have heard the parties' Counsel and gone through the record.
5. One of the points raised by the learned Counsel for the appellant was that there was no 'informed consent' before performing angiogram, for the doctors did not tell the complainant/appellant of the side effects and its consequences. If the risk involved was clarified to him, he would not have permitted the respondent hospital authorities from conducting the test itself. However, from the respondent's side it was contended that the complainant was informed about the nature of the test and he had signed consent letter for conducting angiography and it was also contended that there was rare possibility of lower limb paralysis, which might arise as a result of the test, and as such non-disclosure was justified under the circumstances. It was also contended that angiography test was an absolute necessity as far as the complainant/ appellant was concerned for proper diagnosis of the ailment. It was also pleaded that the opinion among the members of the medical profession in the whole world is that the doctors should not overwhelm the patient with information and should avoid blinding him with science since it would be counter productive. It was the case of the respondent hospital that the hazard that occurred was not a presumable risk and only in the rarest of rare cases such amishap would occur. As per Ex.R2, consent form before the procedure commenced in the Operation Theatre was read over to the complainant/appellant by the doctor. Since the consent was taken and the problem which had arisen was rarest of rare situation, its disclosure might have proved counter productive and against the interest of the patient himself.
6. In this regard, the State Commission has rightly relied upon "'Practical Medico-Legal Manual" - a publication of Indian Academy of Forensic Medicine, Prof. M. Lakshman Pai in Chapter - 3 under the heading "Relevance of Consent in Medical Practice". The State Commission also referred to in British Medical Journal, 1954 P:105, referred to observations of Lord Justice Denning in the case of Hatcher v. Black and Ors., wherein it was held that the fact that Mrs. Celia Hatcher, was informed that there was no risk to her voice although he knew that there was some slight risk. But, it was further told that the doctor had done so for her own good because of the vital importance to her that in her condition she should not worry. He told a lie, which in the circumstances was justified and that it was a matter which in law was left to the conscience of the doctor himself. The law did not condemn a doctor if the doctor did what a wise doctor was supposed to do. The State Commission very appropriately dealt with a sensitive part of the informed consent by deciding in favour of what is in the best interest of the patient in circumstances and also for the growth of the medical sciences.
7. The textbook of Radiology and Imaging, by David Sutton, 5th Edition 1998, in Chapter 26, Arteriography and Therapeutic Angiography, clearly explains under head "Damage to Organds" as follows:
Spinal cord damage is a rare and tragic completion of arteriography where an excessive dose of contrast has entered a man artery of supply to the spinal cord. Thus, paraplegia has been recorded after abdominal or lumbar aortography, presumably from injection of the artery of Adamkiewicz, which supplies the cord from the region of D8 downwards.
8. Seeing the evidence on record and the circumstances mentioned hereinabove, though it may be true that the doctor did not tell her about the rarest of rare situation which might arise in such like matters, yet since it was in the best interest of the patient, it appears permissible to that extent. For the aforesaid reasons, we do not find any substance in the submissions of learned Counsel for the appellant.
9. The next point urged was that as per text book of Radiology and Imaging, 5th Edition 1988, which dealt with allergy supported that any radiologist performing angiography should be prepared for prompt treatment of a major hypersensitivity reaction. This would mean the administration of corticoid e.g.- Dexamethasone 10-20 Mg. Intravenously and if necessary artificial respiration with positive pressure and oxygen for oedema of the glottis- 5 Mg. of adrenalin subcutaneously or intramuscularly is recommended together with the slow intravenous injection of an antihistamine. In the present case the patient was given only 4 Mg. of Dexona and 100 Ml. of efcorli and had thus complied with the opinion of Dr. Mukul Chand that the patient had para-paresis and that the antidote given was correct and sufficient, as stated by Dr. Gayetri. In this regard, we do not see any appropriate reason to take any view different from the view taken by the State Commission in so far as this point is concerned.
10. It was further claimed that proper dose was not given to provide emergency treatment or reaction.
11. However, it is apparent that in addition to 1 mg. of epinephrine, another medicine was also given. In absence of proper evidence that the other medicine would not make up inadequacy of the dose, 4 mg Dexona was surely not an adequate doze. It would not be appropriate to consider inadequacy of antidote any further.
12. Next point urged related to lack of any step for prompt lumber puncture for cerebrospinal fluid. In Abraham's Angiography Vol. (II), 3rd Edition, 1983 Hebert L. Abraham suggested that:
The neurologic complications associated with the femoral approach show a predominance of the transient episodes in contrast to more permanent deficits. Other workers have also reported transient neurologic problems that have either completely or partially cleared over a short period of time. Patients with pre-existing spinal cord lesions may be at greater risk for developing particular autonomic nervous-system complications at angiography. Immediate lumbar puncture with cerebrospinal fluid removal in 10-cc increments to reduce the elevated spinal fluid iodine concentration, followed by maintenance of the patient in the head-up position, has been recommended for post angiographic paraplegia and tetraplegia.
(Emphasis Supplied)
13. Nothing has been shown from the side of the respondent-hospital to contradict this point. No treatment as suggested above by way of post-test care treatment was given to retrieve the situation at the earliest and as far as possible. No Neuro-Surgeon was examined to establish that lumbar puncture was not essential at the very essential stage of setting off of paraplegia.
14. In a recent judgment in Jacob Mathew v. State of Punjab III (2005) CPJ 9 (SC) : III (2005) CCR 9 (SC) : 122 (2005) DLT 83 (SC) : (2005) 6 SCC, the Supreme Court considered level of skill expected of a Doctor in following words:
19. An of quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J. in Bolam v. Freirn Hospital Management Committee, WLR at p. 5-86 in the following words: AIR ER p. 121 D-F [Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill.... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. " (Charlesworth & Percy, ibid., para 8.02)
20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with on several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckerslely v. Binnie summarised the Bolam test in the following words: (Con LR p. 79) From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advanced, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes to less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet. " (Charlesworth & Percy, ibid., para 8.04)"
41. Laxman Balkishna Joshi v. Trimbak Bapu Godbole , was a case under the Fatal Accident Act, 1855. It does not make a reference to any other decided case. The duties, which a doctor owes to his patients, came up for consideration. The Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. 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.
(Emphasis Supplied)
15. A medical practitioner must bring to task a reasonable degree of skill and knowledge and must exercise reasonable care. Neither very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case. We cannot expect that a doctor who performs angiography would not be aware of the above said precautions to be taken before performing angiogrpahy and the hospital also cannot absolve itself for firstly employing a doctor who has not updated his skill and knowledge and secondly, for not creating an environment where doctors keep themselves well informed about latest developments in taking appropriate precautions about performing lumber puncture recognised since 1983, in the year 1990.
16. There is also no dispute that the patient was not shifted to ICU of Neurology Ward but shifted to medical ward. It is very much evident that after paraplegia had set in, the patient should have been treated by the Neuro-Surgeon. But the complainant was not shifted to ICU at Neurology Ward; rather he was shifted to medical ward. In this regard, it was pointed out that as per version of Dr. B. A. Shastri, he stated that the complainant was shifted to Neurology after 1.6.1990. This clearly showed that the patient was shifted to Neurology Ward only after 23 days, indicating gross medical negligence.
17. If we consider the pre-operative period, we may just say that in respect of two counts, it could be said that there was no deficiency in rendering medical service in taking precaution before procedure started.
18. During the procedure, there was appropriate monitoring otherwise the allegations as made by the complainant could not have arisen. It is evident that there was appropriate monitoring by Senior doctor. Thing might have gone out of the hands despite all care and caution. We will have to keep some margin for the fact that two lady doctors were qualified lady doctors and were working under the supervision of the Head of the Department, Dr. Ghosh and they would have taken appropriate precaution to the best of their ability in ordinary course of business.
19. As regards the post-operative care, it is evident that in absence of any denial or any averment contrary to the suggestion of Herbert L. Abrams for immediate lumbar puncture with cerebrospinal fluid removal in 10-cc increments to reduce the elevated spinal fluid iodine concentration was not undertaken. In this regard the respondents were certainly held deficient in rendering medical service. Similarly, not sending the patient to the Neurology Department and sending him there after 23 days also speaks volumes about lack of postoperative care.
20. While we would not say that such a situation could have been avoided, yet no immediate steps to reduce the elevated spinal fluid iodine concentration, proper care by the Neurology Department, certainly amounts to deficiency in rendering medical service.
21. Insofar as the plea that the complainant/appellant was not a 'consumer", the State Commission has rightly held that it was not a hospital which was rendering free service to all and the controversy has been settled by the Hon'ble Supreme Court in the case of Indian Medical Association v. V.P. Shanta and Ors., and private hospital which charges fee for rendering medical service would certainly come within the purview and the objections raised in this regard by the respondent was not tenable.
22. Now, coming to the point of compensation, the complainant/appellant has been placed in the state of vegetative living as was submitted the leanred Counsel for the appellant. He is dependent on his wife and mother and has to undergo several investigations. He is unable to discharge duty as a father. He is unable to look after his stationery shop and farm. Accordingly, life of the complainant after the operation had almost become standstill for lack of mobility. Keeping some margin for exaggeration, we feel that it would not be appropriate to consider alleged agricultural loss. However, whatever he could have done himself to look after his stationery shop and agriculture farm he would not be able to do himself. He would have to employ some other person. Even if we consider additional expenditure of Rs. 3,000 p.m. for employing an additional hand along with additional expenditure of medical treatment at least @ Rs. 500 p.m. It would come to Rs. 3,500 per month. The appellant would thus be entitled to get Rs. 3,500 x 12 x 15 = Rs. 6,30,000 at least.
23. Keeping all the above into consideration, the appellant is entitled to get compensation amounting to Rs. 6,30,000 with cost which is assessed at Rs. 5,000.
24. In view of the foregoing, this appeal is allowed.
25. Before passing this order, we would like to place our appreciation on record about the assistance rendered by Ms. N. Annapoornani, Learned Counsel for the appellant and Ms. Vimla Sinha, learned Counsel for the respondent for making virtual research on the point of medical negligence and also bringing appropriate literature on record.