State Consumer Disputes Redressal Commission
Faqueer Ahmed, S/O.Abdul Gani vs Dr.N.Venkataram Reddy And Another on 15 April, 2010
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD. FA.No.1575/2007 against CD.No.231/2003 District Consumer Forum, Mahabubnagar. Between: Faqueer Ahmed, S/o.Abdul Gani, Aged about 51 years, Sub Inspector of Police, Manopad Police Station, R/o.H.No.1-10-37/2/c, Shabadgutta, Mahabubnagar Town and District. Petitioner/Appellant/Complainant. And 1.
Dr.N.Venkataram Reddy, ENT Specialist and Head & Neck Surgeon, C/o.SVS Hospital, Mahabubnagar.
2.Dr.Mohan Kameswaran, 15, Petitioners, Shivasamy Salai, Dr.Radha Krishna Road, Mailapur, Chennai 600 004.
Respondents/Opp.Parties.
Counsel for the Appellant : Mr.P.Veera Reddy.
Counsel for the Respondents :
Mr.V.Gourisankara Rao.
QUORUM:
HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT, AND SMT.M.SHREESHA, HONBLE MEMBER, THURSDAY, THE FIFTEENTH DAY OF APRIL, TWO THOUSAND TEN.
Oral Order (Per Honble Sri Justice D.Appa Rao, President) *******
1. Appellant is unsuccessful complainant.
The case of the complainant in brief is that his daughter Farath Sultana was suffering from breathing problem. Therefore, he took her in October, 2001 to opposite party No.1 for treatment. Opposite party No.1 suggested the name of opposite party No.2 for laser surgery. Accordingly, she was taken to opposite party No.2, who conducted operation on 04.12.2001.
He advised her to come again on 10.12.2001. On the said day, he again checked up and asked her to come again for further treatment on 19.02.2002. She was again brought to opposite party No.2 who conducted another operation and discharged on the very same day on 15.07.2002 . Opposite party No.2 conducted endoscopic test and other tests and asked her to come on 27.07.2002 for another operation. On that day she was operated. She was discharged on 29.07.2002 asking her to take medicines and to come after six weeks. However, in the month of August, 2002, she developed pain in the throat.
On that she went to Dr.B.Jaya Prakash Reddy, ENT Surgeon, Kurnool on 19.09.2002. After examining her he found web restriction in the throat.
Then the said doctor referred her to opposite party No.2 who after examining her asked her to go to Chennai.
He did not give any treatment or attempted to remove web restriction, which was found by Dr.B.Jaya Prakash Reddy, ENT Specialist, Kurnool. She again developed acute pain and breathing problem. When contacted, opposite party No.2 directed him to take her to Apollo hospital, Hyderabad and accordingly he took her to Apollo Hospital where Dr.Vinay Kumar and Dr.V.Janardhan Rao, ENT Surgeons and Specialists informed that there was necessity to conduct major operation in the throat. When contacted, opposite party No.2 informed that there was no need of another operation and asked her to come on 03.1.2002. After examining her, she was discharged on 04.11.2002. Again on 07.11.2002 she had severe breathing problem and pain.
She was taken to opposite party No.2.
She was admitted as in patient and was discharged on 12.11.2002. On 13.12.2002 she again developed problem and pain in the throat and she was taken to Susrutha Hospital at Mahabubnagar, where she died.
Evidently, opposite party No.2 had treated negligently and therefore, claimed compensation.
2. R.1 resisted the claim He alleged that there was no negligence on his part. She never approached him, when he was working in SVS Hospital, Yenugonda, Mahabubnagar District.
Only to confer jurisdiction in the District Forum, he was impleaded as though he was a resident of this place. She came to him when he was at Hyderabad. He suggested lacer treatment and referred her to opposite party No.2. Neither he treated her nor there was any negligence on his part in advising her to go to opposite party No.2 He was not a necessary party to the complaint, and therefore, prayed for dismissal of the complaint with costs of Rs.10,000/-.
3. R.2 equally resisted the case. He alleged that he was an Honorary Professor of Otorhinolaryngology of Sri Ramachandra Medical College and Research Institute (Deemed University) Chennai and one of the Directors of Madras ENT Research Foundation, Chennai and Senior Consultant of ENT Surgery, Malar Hospital, Chennai. While mentioning his degrees and competence as an ENT Surgeon, he denied that there was any negligence on his part while treating the deceased. Since he was a resident of Chennai the Forum has no jurisdiction. When the patient came to him, she gave a past history of having undergone micro laryngeal excision for laryngeal web release in October 2001. He found that she was suffering from laryngeal web and subglottic granulation and this caused laryngeal stenosis (a stricture of any canal) which in turn was the cause of her difficulty in breathing and hoarseness of voice. He advised her to undergo laser release of web and laserisation of subglottic granulations and scar and right vocal cord lateralization with dacron mesh. He gave a detailed account of the disease suffered by her and the proposed surgery.
He also informed the follow up treatment and the need for its meticulous observance. After obtaining her consent he performed the surgery on 1.12.2001.
The allegation that she was suffering from breathing problem alone was not true. She suffered from laryngeal web which might be congenital since she complained of her hoarseness of voice since birth. Therefore, she was advised to undergo laser release of web and laserisation of subglottic granulations and scar and right vocal cord lateralisation with Dacron mesh She underwent laser treatment with KTP/532 laser. When she was suffering from such disease he could not give assurance. It was not a wrong diagnosis. He treated several cases of this kind. There was no negligence on his part. In fact she was operated at ENT Hospital, Koti, Hyderabad. Since the problem recurred, the patient visited Chennai. After operation on 04.12.2001 she was comfortable i.e. no difficulty in breathing. She was discharged on 05.12.2001 with adequate airway with oxygen saturation set of 98% at room air. She was given discharge summary. She was asked to come after four days. On 10.12.2001 she was examined. Her condition was improved. She did not come for review after one month as instructed. After 71 days i.e. on 19.02.2002 she came to Madras ENT Research Foundation. She was advised to undergo direct laryngoscopy with fibre optic bronchoscopy and removal of Dacron mesh. After obtaining her consent, an operation was conducted on 19.02.2002 and she was discharged on the same day and she was in a good condition. She was asked to come for review after one month. She was seen in the middle of June, 2002 in Hyderabad when he attended workshop. She stated that she was comfortable. After 141 days she came again on 15.07.2002 as an outpatient to Madras ENT Research Foundation. On examination, she was found to have a small anterior web. Her condition was informed to the complainant.
After obtaining consent, the small anterior web was laserized and mitomycin applied over the area. She was discharged on 27.07.2002 with an advise to come for review as an outpatient on the evening of 29.07.2002. On 29.07.2002 she was examined and she was comfortable. She was advised to come for review after one month.
On 21.08.2002, she came with the complaints of throat pain and she had no difficulty in breathing. On examination, infection of laryngeal cartilage and throat was found. She was conservatively managed with antibiotics and discharged on 22.08.2002 and was asked to come for review on the evening of 28.08.2002, instead she came on 20.09.2002. She was examined as an out patient and found to be normal. She was again instructed to come for review as an out patient after a month. She brought on 02.11.2002 with a history of difficulty in breathing for one week.
The patient was admitted and had Fibre Optic Bronchoscopy which showed formation of a small anterior laryngeal web, however, airway was adequate, which did not require intervention. The patient was comfortable and the same was explained to the complainant and his wife. She was discharged on 03.11.2002. However, she was advised to come back on 18.11.2002 for review. On 08.11.2002 the patient was admitted for observation. As per clinical examination, the patient had no difficulty in breathing and oxygen saturation was 98%. The patient was comfortable and had no difficulty in breathing problem. Confirmation of her status through a video laryngoscopy was done which showed normal vocal cord and airway. It was also found that the patient had adequate airway for breathing. The patient was advised to walk around inside the Madras ENT Research Foundation and climb stairs as a test for respiratory function.
The patient was discharged on 10.11.2002 with a clear advice to stay in Chennai and not to go back to Mahaboobnagar in view of the fact that the facilities might not be available for managing emergencies at that place. However, the patient and her attendants ignored this advice and went back to Mahaboobnagar with the result the appointment of the patient with me on 18.11.2002 could not take place. He had no opportunity to review the condition of the patient for prescribing follow up treatment. One month later, the patient admitted in a local hospital with breathing problem on 13.12.2002. He advised the local doctor to manage the patient by endotracheal tube by an anaesthetist or emergency tracheostomy done by ENT surgeon. The local doctor informed him that both the facilities are not available at that point of time at Mahaboobnagar. The patient seemed to have died within a few hours thereafter.
The death of the girl was due to stay at Mahaboobnagar, a place where no basic infrastructure facilities are available to treat this kind of disease. The patient might have developed infection and breathing problem. He never strayed away from the methodology to be adopted in such cases as described in classical medical textbooks. There was no negligence on his part and therefore, prayed for dismissal of the complaint with costs.
4. The complainant in proof of his case filed his affidavit evidence, besides affidavit evidence of P.W.1, Dr.B.Jayaprakash Reddy, P.W.2, Dr.E.C.Vinay Kumar and P.W.3, Faqeer Ahmed and filed Exs.A.1 to A.80. Refuting their evidence opposite parties 1 and 2 filed their affidavit evidence and got marked Exs.B.1 to B.6.
5. The District Forum after considering the evidence placed on record opined that the complainant could not prove that there was negligence on the part of opposite parties in conducting operation or in treating the deceased. Therefore, it dismissed the complaint.
6. Aggrieved by the said order, the complainant preferred this appeal contending that the District Forum did not appreciate the facts in its correct perspective. It ought to have seen that the evidence of P.W.1, P.W.2 and P.W.3 will clinchingly establish that there was negligence on the part of opposite party No.2. The District Forum erred in appreciating the evidence and never applied the principles of resipso loquitor for awarding compensation.
7. The point for consideration is whether the order of the District Forum is vitiated by mis-appreciation of facts?
8. It is an undisputed fact that the complainants daughter Farath Sultana, aged 17 years had developed breathing problem and hoarseness of voice. In fact, she was suffering from throat problem right from her childhood. She had undergone micro laryngeal excision for laryngeal web release in October, 2001.
She came to opposite party No.2 on 4.12.2001 complaining breathlessness and hoarse voice. Admittedly, opposite party No.2 is an expert in the field attached to Sri Ramachandra Medical College and Research Institute and other reputed institutes mentioned in his counter, which we do not intend to repeat. He found that indirect laryngoscopy (IDL) revealed anterior laryngeal web. Then he diagnosed that she was suffering from laryngeal web and subglottic granulation and this caused laryngeal stenosis ( a stricture of any canal) which in turn was the cause of her difficulty in breathing and hoarseness of voice. This aspect was not disputed by the complainant. He conducted operation on 04.12.2001 after obtaining consent of the patient as well as the parents. She was advised to undergo laser operation to release web and laserisation of subglottic granulations and scar and right vocal cord latralisation with Dacron mesh.
He conducted laryngeal stenosis operation in Madras ENT Research Foundation one of the most advanced ENT hospitals in India where facilities for the management of laryngotracheal stenoisis are available.
9. It is also not in dispute that repeatedly she came to him. On 19.02.2002 another operation was conducted. Again she came on 15.07.2002 when the third operation was conducted. Whenever she was given treatment discharge summary were prepared, evidenced under Exs.B.1 to B.3, wherein he mentioned the treatment given by him.
Unfortunately after operation on 10.11.2002, she could not come for post operative treatment. She went to local ENT Surgeon at Mahaboobnagar, where she died.
Opposite party asserts that she did not follow treatment correctly. He further asserted that the patient should be managed by endotracheal tube by an anaesthetist or emergency tracheostomy (formation of an opening into the trachea) by an ENT surgeon. The local doctor informed that both the facilities were not available at that point of time at Mahaboobnagar, and therefore, the patient died within a few hours thereafter.
This could have been averted had the patient been stayed in Chennai and followed up his advice (opposite party No.2).
The complainant has examined both the doctors, Dr.B.Jayaprakash Reddy as P.W.1 and Dr.E.C.Vinay Kumar as P.W.2 and himself as P.W.3. P.W.3 stated that the treatment given by O.P.No.2 was not on correct lines. Contrarily, P.W.1 and P.W.2 stated that the treatment given by opposite party No.2 was in proper lines. P.W.1 stated that there was no negligence on the part of opposite party No.2 in conducting operation. He himself stated that even after successful surgery for web resuction, the web is likely to recur again. P.W.2 evidence corroborated P.W.1 in this regard. He stated that there are chances that the web can recur some times. As and when web formed re-operation may be required. Using of medicines will not prevent web formation. In the cross examination, he stated that usually the laryngeal web formation is from birth an it can also occur due to other causes. Even after surgery of web, web can form again at any time. Except this evidence no other evidence was placed to prove that opposite party No.2 did not diagnose the disease correctly nor administered medicines or conducted operations properly. There was no evidence to state that the line or course of treatment was not in proper in lines . Obviously, on the death of his daughter, the complainant must have assumed that the growth of web would have caused due to improper operation conducted by opposite party No.2.
10. The Supreme Court in Martin F. DSouza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) opined that :
It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter vs. Hanley 1955 SLT 213 :
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...."
(emphasis supplied) The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.
Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure.
Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
11. The learned counsel for the complainant could not refer to any medical literature to show that the course of treatment adopted by opposite party No.2 was not in correct lines. The experts examined by him did not support him. Necessarily their evidence shall prevail. The complainant could not establish any deficiency in service on the part of opposite party No.2 surgeon. The District Forum after considering the entire material on record opined that there was no negligence on the part of opposite parties. We agree with the finding of the District Forum.
12. The appeal is therefore, dismissed. However, in the circumstances, no costs.
PRESIDENT MEMBER Dt:15.04.2010.
Vvr.