National Consumer Disputes Redressal
Dr. Sunil Bhandari vs Ku. Pooja Kori & Anr. on 27 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 161 OF 2008 (Against the order dated 25.10.2007 in Original Case No.57/01 of the M.P. State Consumer Disputes Redressal Commission, Bhopal) Dr. Sunil Bhandari D. Ortho, C/o Fracture Clinic Near Punjab National Bank Trimulgiri, Secunderabad-500115 Andhra Pradesh Appellant Versus 1. Ku. Pooja Kori D/o Shri Mohanlal Kori R/o Near Pisanhari Ki Madhya Kori Mohalla, Purwa Jabalpur, Madhya Pradesh 2. Laxmi Narayan Hospital Through Director Madan Mahal, Opp. Belasing School Nagpur Road, Jabalpur, Madhya Pradesh Respondents BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER For Appellant : Ms. Swati B. Sharma, Advocate For Respondents : Mr. Narendra Chauhan, Advocate for R-1 Pronounced on 27th May, 2013 ORDER
PER VINEETA RAI, MEMBER
1. Dr. Sunil Bhandari, Appellant herein and Opposite Party No.1 before the M.P. State Consumer Disputes Redressal Commission, Bhopal (hereinafter referred to as the State Commission) has filed this appeal challenging the order of that Commission which had found him guilty of medical negligence in the complaint filed by Ku. Pooja Kori (hereinafter referred to as the Patient) through her father Shri Mohan Lal Kori, Original Complainant before the State Commission.
2. In his complaint, Mohan Lal Kori, father of the Patient, had stated that he had taken his daughter (the Patient) who had a mild deformity in her left leg diagnosed as Post-Polio Residual Paralysis (PPRP) to Appellant-Dr. Sunil Bhandari, an Orthopedist, in response to an advertisement that patients who required surgery for disability would be operated by Appellant-Doctor in Laxmi Narayan Hospital (Opposite Party No.2) on payment of Rs.7000/-. After examining the Patient, a surgery was recommended by the Appellant-Doctor and Complainant was advised to deposit Rs.8000/- as charges for hospital, operation etc. On 08.01.2001 the surgery was performed on the Patient under general anesthesia. After the surgery, Patient continued to complain about the excruciating and agonizing pain in her operated leg but she was discharged the next day without being examined by the Appellant-Doctor and without adequate post-operative care, advice and treatment. Appellant-Doctor only advised analgesic for the pain and asked her to come for a review check-up on 09.02.2001.
2 or 3 days after the surgery, there was blue colouration on the operated leg, which started spreading accompanied with pain and, therefore, Appellant-Doctor was contacted on phone who stated that he would examine the Patient on his next visit to Jabalpur and that there was nothing to worry. When the Patient was brought to Appellant-Doctor for review check-up on 09.02.2001 the operated leg had become completely black with loss of sensation. Appellant-Doctor, however, did not give any satisfactory explanation for this development and only admitted that the operation had not been successful. He thereafter reapplied the plaster on the operated leg. However, since the health of the Patient kept deteriorating, she was taken to Netaji Subhash Chandra Bose Medical College, Jabalpur, where Dr. H.S. Verma, Orthopedic Surgeon, after examining the Patient informed that gangrene had developed because of cessation of blood supply in the operated limb. The report of the Colour Doppler examination of the arteries of the left lower limb conducted at Charak Diagnostic & Research Centre, Jabalpur suggested that there was possibility of resistance of flow in the left popliteal artery, which is indicative of deficiency of blood supply. Because of the development of gangrene, the operated leg of the Patient had to be amputated leaving her totally and permanently handicapped and her aspiration to become an athlete or a police officer was no longer possible impacting on her entire quality of life. A legal notice was sent to Appellant-Doctor in this regard but because of the unsatisfactory response, Complainant filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that Appellant-Doctor and OP-2/Hospital be directed to pay a compensation of Rs.18,99,000/- to the Complainant.
3. Appellant-Doctor on being served filed a written rejoinder denying that there was any medical negligence or deficiency in service. It was stated that he had performed the surgery on the Patient free of cost at a camp organized for this purpose by an NGO called the Help Disabled Organisation Hyderabad in OP-2/Hospital. The surgery was performed after taking the written consent and informing the Complainant about the risks involved. Instructions for post-operative care were also given, including the instruction to the Complainant to contact the family physician in case the Patient had any problem post-surgery. Specific instructions were also given to get the plaster removed in case of severe pain and swelling but these instructions were not followed by Complainant. It was denied that there was any damage to the blood vessel of the leg during the surgery conducted using the Soutter & Younts procedure, which is a worldwide accepted surgical procedure. Appellant-Doctor also contended that it was he who diagnosed the development of gangrene, which was unrelated to the surgery. If there had been any damage as alleged to the popliteal artery, which is located near the knee and away from the site of the surgery, then the entire leg from the knee downwards would have been affected which was not the case. Thus, the cause of the gangrene was a blood clot (arterial thrombosis) which was not attributable to the surgery and was caused because of negligence in post-operative care by Complainant.
4. OP-2/Hospital contended that the entire camp was organized by an NGO. They had only rented out the operation theatre and general ward of the hospital and, therefore, neither had they any connection/knowledge about the surgery conducted on the Patient nor had they received any money from the Complainant. Thus, no service was provided to the Patient/Complainant.
5. The State Commission on the basis of submissions made before it and the evidence on record, allowed the complaint by observing as follows:
12. On record there is only a single prescription of Dr. Bhandari. After performing the surgery, the doctor discharged the patient. His prescription only advises some antibiotics, painkillers and a cryptic noting deformity completely corrected review on 9th Feb. There is no mention anywhere if any plaster was put. There are no operation notes filed. We do not know what happened in the Operation theatre, and whether there was any damage to the Popliteal artery during the surgery. No x-ray has been advised after the surgery, nor has any x-ray report been filed. We do not know on what basis the doctor said that the deformity was completely corrected. The Colour Doppler report of 13.3.01 states findings suggest the possibility of resistance to flow in left popliteal artery. Obviously, the blood flow in the popliteal artery was not proper, resulting in the development of gangrene. The doctor has not explained why this happened. It is not his case that gangrene is a complication of the Soutters and Yount procedure. A prima facie case against the respondent has been made out by the complainant. It is for the respondent to rebut the prima facie case, which he has not been able to do.
13. Dr. Bhandari states that when the complainant contacted him, he told him to cut the plaster and put the leg in the preoperative stage. Had he actually said this, we see no reason why the complainant would not have done so.
Apparently, the plaster was too tight.
Along with the damage to the popliteal artery it led to the development of gangrene.
14. When a doctor undertakes to perform a surgery, he also undertakes to provide due care after the surgery. He is not expected to disappear immediately after the operation, without any backup doctor, who can be contacted by the patient in case of any problem. There is no record as to how long the doctor kept the patient and provided post-operative care. According to the complainant, Ku. Pooja was discharged the next day. This has not been denied by the respondent doctor.
There is no noting as to what her condition was at the time of discharge. Who was to give the post-operative care and regular checkup necessary after the surgery? The respondent lured handicapped patients with promises of a better life after surgery, and after receiving the money and performing the surgery he left the down, with no consideration of the patient. In fact, if he had no support systems and backups to continue with the treatment and care once he left, he should not have performed the surgery at all.
The State Commission held only Appellant-Doctor guilty of deficiency in service and absolved OP-2/Hospital since it had only given the operation theatre and general ward on rent to the camp organizers.
It, therefore, directed Appellant-Doctor to pay the Complainant a sum of Rs.2.00 Lakhs as compensation since after amputation the Patient would require prosthesis and further treatment. This amount was directed to be paid within one month of the date of receipt of the order, failing which it was to carry interest @ 9% per annum from the date of order till payment. Rs.1000/- were awarded as cost.
6. Being aggrieved by the order of the State Commission, the present first appeal has been filed.
7. Learned Counsels for both parties made oral submissions.
8. Learned Counsel for the Appellant-Doctor contended that the State Commission erred in holding him guilty of medical negligence and deficiency in service. It was contended that a surgical procedure had been conducted on the Patient through the Soutter & Younts procedure, which is a universally accepted procedure and it was never assured that the deformity would be completely eliminated because the Patients lower limb was totally dysfunctional.
However, the surgery was necessary to correct the deformity to the extent so as to enable the Patient to walk with the help of aids such as calipers. The surgery was successfully conducted by the Appellant-Doctor, who is a highly qualified orthopedic surgeon and he had given a prescription for post-operative care and advised follow-up visit a few days later. The surgical procedure, it was pointed out, did not involve any touching or incision in the area of the popliteal artery blood vessel which is located near the knee and not at the level of the ankle where the surgery was conducted. Thus, the gangrene that had set in at the level of the ankle and which was detected by the Appellant-Doctor during the follow up visit could not under any circumstances be attributed to the surgery. It probably occurred because of formation of a blood clot in the artery which is not linked to the surgery. It was further contended that this could be because of negligence on the part of Complainant in the post-surgery care of the Patient. Counsel for the Appellant-Doctor also pointed out that the State Commission had sent the case papers to a medical expert i.e. Dr. H.K.T. Raza, Professor and Head of Department, Department of Orthopedics, Medical College, Jabalpur, who had opined that the procedure done on the Patient i.e. Soutter & Younts procedure was a correct one. The onus to prove that there was any medical negligence or deficiency in service was on the Complainant, who has failed to do so.
9. Counsel for the Complainant on the other hand reiterated that the gangrene was caused because of neurovascular damage during the surgery when undue pressure was put on the knee in a bid to straighten it and after which a tight plaster was cast by the Appellant-Doctor causing a tear in the popliteal artery and ultimately resulting in gangrene. Further, no post-operative care was provided since the Appellant-Doctor went away to Hyderabad after performing the surgery in Jabalpur. In his post-operative directions, the only advice given was that in case of pain the Patient may be given antibiotics and painkillers and that the deformity was completely corrected. In fact no x-ray or any other diagnostic procedure was carried out to confirm that the deformity had been corrected. On the other hand, Patient continued to experience excruciating pain and discomfort and the Colour Doppler test dated 13.03.2001 confirmed that there was a possibility of resistance to blood flow in the left popliteal artery. This occurred soon after the surgery and the Appellant-Doctor did not give any plausible explanation to support his statement that the surgery was successful and that the gangrene that set in was not caused as a consequence of the surgery and lack of post-operative care. The State Commission in its detailed order has dealt with these issues and rightly concluded that the Appellant-Doctor was guilty of medical negligence in the medical treatment of the Patient, including post-operative care.
Further, the Appellant-Doctors contention that the medical expert to whom the papers were referred had stated that he had conducted the correct procedure did not, however, absolve him of medical negligence since the medical expert had categorically stated that in the absence of all the necessary medical documents, he could not give any specific finding in this respect. The fact that the Patients leg had to be amputated for the gangrene in another hospital in Jabalpur is adequate proof of the medical negligence on the part of the Appellant-Doctor.
10. We have heard learned Counsels for the parties and have also gone through the evidence on record. Patients surgery by Appellant-Doctor to rectify the deformity caused because of Post-Polio Residual Paralysis (PPRP) at OP-2/Hospital is not in dispute. It is further a fact that after conducting the surgery, the Appellant-Doctor went back to Hyderabad where he is based.
From the evidence on record we note that post-surgery he had advised only some antibiotics and painkillers and made a noting that deformity completely corrected review on 9th Feb.. However, we note that no detailed operation notes were filed and nor was there any diagnostic test on the basis of which the Appellant-Doctor had concluded that the deformity had been completely corrected. There is no evidence of any other advice written or otherwise as to what the Patient or Complainant should do and which doctor they could contact in Jabalpur in case of any complication.
It is not disputed that the Patient post-surgery had excruciating pain with slight blue colouring of the leg and in fact Appellant-Doctor during the review visit on 09.02.2001 had himself detected the gangrene. However, we note that no treatment was advised or undertaken on how to deal with the onset of gangrene and plaster was merely put back. It was only at the Medical College, Jabalpur where the Patient was taken when there was further blackening of the operated leg that the leg had to be amputated as a result of the gangrene. From the narration of the above facts, we find force in the contention of the Complainant that due post-operative care was not provided by the Appellant-Doctor, particularly since no medical records or notes of surgery were produced by the Appellant-Doctor before the State Commission to counter the prima facie case of negligence made out against him by the Complainant. Appellant-Doctors contention that the medical expert Dr. Raza to whom the papers were sent had ruled out medical negligence is not factually correct since a perusal of the opinion clearly indicates that he had refrained from giving any opinion regarding medical negligence since the documents sent to him were incomplete.
In the instant case, following the surgery gangrene had set in which the Appellant-Doctor has not been able to satisfactorily explain except to state that the popliteal artery could not have been damaged during the actual surgery which was away from the site of this artery.
On the other hand, there is evidence based on the Colour Doppler test conducted little over a month after the surgery that confirms that there was resistance of blood flow in the left popliteal artery. Complainant has contended that the situation was aggravated because the plaster had been very tightly put and no advice was given to remove it in case of pain etc. The State Commission, we note, had gone into all these facts and vide its well-reasoned order, which has been cited in para-5, concluded that Appellant-Doctor was guilty of medical negligence and deficiency in service by failing to provide due care to the Patient, particularly post-surgery care. We are in agreement with this finding of the State Commission. In all surgeries, particularly in orthopedic surgeries, post-operative care is very important to ensure full recovery and rehabilitation. In the instant case, the Appellant-Doctor by not being available to the Patient post-surgery and not giving the required written instructions of what is to be done in case of any complications or untoward developments was undoubtedly guilty of medical negligence by not providing reasonable care and caution which was required of him as a good medical professional. We are of the view that for the reasons stated above the Appellant-Doctor was guilty of medical negligence and deficiency in service by failing to provide the required post-operative care to the Patient, the unfortunate result of which was the amputation of her leg causing life long disability apart from mental agony and heavy financial expenditure on her subsequent treatment.
The State Commission taking into account all these facts had awarded a sum of Rs.2.00 Lakhs to be paid by the Appellant-Doctor. We are of the view that under the circumstances this compensation is reasonable and justified.
11. To sum up, we agree with the finding of the State Commission that Appellant-Doctor is guilty of medical negligence and deficiency in service. The present first appeal is dismissed and Appellant-Doctor is directed to pay a sum of Rs.2.00 Lakh to the Complainant within a period of one month, failing which it will carry interest @ 9% per annum from the date of the order till payment, alongwith Rs.1000/- as costs.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Mukesh