National Consumer Disputes Redressal
Mini And Ors. vs G. Mohan (Dr.) And Ors. on 28 November, 2007
Equivalent citations: I(2008)CPJ201(NC)
ORDER
B.K. Taimni, Member
1. Appeallants were the complainants before the State Commission, where they had filed a complaint alleging medical negligence on the part of the respondents.
2. It was the case of the complainants that late Shri Ajayakumar was having problems of piles for which he was operated upon by the first respondent after anaesthesia had been administered by the second respondent in the third respondent hospital. It was their case that anaesthesia was administered but it did not have any effect on the body or mind of the patient and late Ajayakumar was operated upon in an unbecoming manner. It was their case that respondent did not examine the heart, urine of the deceased before anaesthesia was administered. It is also their case that there was defect in supply of oxygen, as also that the respiratory failure resulting the death of the deceased Ajayakumar was due to over-dose of anaesthesia. Thus, alleging medical negligence a complaint was filed but once the post-mortem report was received an amendment complaint was filed in which additional allegations on the part of the respondents not taking chest x-ray was alleged. Upon issue of notice the matter was strongly contested by the respondents, the parties filed their affidavits byway of evidence. Besides the parties, one Doctor Mahadevan, Professor and Head of Department of Anaesthesia, Medical College of Trivndrum was also examined as an expert witness. The State Commission after hearing the parties and perusal of material on record, dismissed the complaint, hence this appeal before us.
3. We heard the learned Counsel for the parties at considerable length and perused the material on record. It is the case of the appellant that in the post-mortem report clearly shows the following:
As per requisition from the Circle Inspector of Police, Kollam East Police Station dated 7.6.1995, postmortem examination was conducted on the body of one Ajayakumar aged about 40 years involved in Crime 516/95 of Kollam East Police Station and the opinion as to the cause of death was received in the postmortem certificate No. 1045/95 dated 7.6.1995 issued by the undersigned Dr. Section Girish, Former Asst. Professor.
The Certificate of Chemical Analysis No. 2490 dated 31.8.1995 received on 15.12.1995 from the Chemical Examiner to Government is revealed no poison including anaesthetic agents in the viscera and blood.
Other Laboratory Findigs-
Histopathological examination of the tissue revealed-Lungs showedn bronchitis and oedema. Liver showed cholestasis and early--Cirrhotic change. Heart, Lungs and Kidneys showed congestion and haemorrhage. Spleen and Brain showed congestion.
Based on the post-mortem findings and results of Laboratory examinations, I furnish my final opinion as follows:
Post mortem findings are consistent with death due to failure of respiratory function.
4. It was argued by the learned Counsel for the appellant that this certificate clearly shows that the deceased had bronchitis and cholestasis and early cirrhotic change. Without treating them first, to carry out the surgery by the respondent, is clearly a case of medical negligence for this he also wishes to take support from the cross-examination of Dr. Mahadevan, the expert anaesthetist. The second leg of the argument that not taking of chest x-ray to ascertain the problems with the lungs is a clear case of negligence. On the other hand the learned Counsel for the respondents also rely on the expert evidence of Dr. Mahadevan wherein he has clearly stated that carrying out x-ray on a person of age below 40 years for a simple reason is not a must. He has also drawn our attention to the literature brought on record that carrying out the x-ray was not called for in the given set of circumstances as well as in vie w of the clinical examination and history given out by the patient himself at the time of admission.
5. After hearing the learned Counsel for the parties we find that in the complaint filed by the appellant (appears at page 171-180 of Vol. IX of paper-book), there is not even a remote reference that the deceased had a bronchitis, lung problem or any other liver problem and it was not looked into by the respondents. The only point made was that the patient was not completely anaesthesised and when the deceased was crying of pain, without understanding the situation, the inhalation was stopped resulting in the late Ajayakumar passing into stage of paralysis and breathing his last for want of reasonable care.
6. These all points have been adequately dealt with by the learned State Commission in its order. Before us only two pleas have been taken by the learned Counsel for the appellant. Firstly, that not treating of lung problem before carrying out surgery was a clear case of medical negligence and not taking chest x-ray which would have revealed these complications, was second instance of medical negligence.
7. It is important to note that the deceased himself was a Pharmacologist and his father-in-law is a professional doctor, yet after going through the complaint and other material on record, nowhere we see the plea taken by the appellant that the deceased was having any lung problem or for that matter, he had mentioned this at the time of pre-surgical stage and it was not entered into by the concerned doctor. All the respondents were cross-examined. In the cross-examination also there is no effort to establish the fact that the deceased or his relatives had mentioned the deceased having lung problem or liver problem and it was not entered into any record by the appellants. It is not a case of layman not knowing that he was suffering from such a problem. As per material on record, the pre-operative tests were carried out as well as the pre-anaesthesia tests were also done. All that was expected from a surgeon and anaesthetist was done. Not only this, he was also subjected to examination by a physician who after clinical examination and several tests declared him fit for the surgery.
8. In this regard, we also like to reproduce what the expert Dr. Mahadevan had to say on the point of problem of bronchitis, which is as follows:
Q. In this particular case the deceased Ajaykumar had bronchitis and Oedema of the lungs. Is it not correct?
A. As per the post-mortem certificate it is correct. But if the patient has active bronchitis there will be history of chronic cough and large quantity of sputum coming out before operation. If the patient has pulmonary Oedema the patient will be in real distress, that will be evident in clinical examination.
9. It is nowhere in the pleadings or evidence brought out by the appellants that the deceased indicated any symptoms as it brought out by the expert, nor is there any evidence led before us in any manner by producing any material, to state that the deceased was having a history of bronchitis and oedema of the lungs. If this is the case then what would survive in the plea taken by the appellant? We also reproduce the material from Vol. I of the book 'Anesthesia' Fourth Edition, Edited by Ronald D. Miller, M.D., as follows:
Chest Radiographs-
What abnormalities on chest radiographs would influence management of anaesthesia? Certainly, it may be important to know about the existence of tracheal deviation, mediastinal masses; pulmonary nodules; a solitary lung mass; aortic aneurysm; pulmonary Oedema; pneumonia, atectasis; new fractures of the vertebrae, ribs, and clavicles; dextrocardia; or cardiomegaly before proceeding to anaesthesia and surgery. However, a chest radiograph probably would not detect the degree of chronic lung disease requiring a change in anaesthetic technique any better than the history or physical examination. Table 25-7 shows the prevalence of conditions that a chest radiograph might detect. These data show that abnormalities are rare in the asymptomatic individual. In fact, the risks associated with chest radiographs probably exceed their possible benefit if the patient is symptomatic and younger than 75 years. This analysis is predicated on maximizing benefit to all patients as a general group, as one cannot say which individual patients will benefit and which will be harmed.
(Emphasis supplied)
10. This material sufficiently explains that chronic lung disease would be detected, by the patient giving the history or his physical examination. The physician in this case had carried out the examination and material is on record that the patient did not have any such problem. Admittedly as already mentioned earlier there is no record by the deceased or any of his relatives informing the respondents about the deceased having a history of any lung disease. The argument of the learned Counsel for the appellant is further negated by the fact in view of the opinion extracted above which states that "In fact the risk associated with the chest radiographs probably exceeds, their possible benefit if the patient is a symptomatic and younger than 75 years...." There is no dispute that the patient was less than 40 years of age and clinical examination carried out by the physician did not indicate any problem. In view of above, we see no merit in this leg of argument advanced by the learned Counsel for the appellant.
11. The second leg of the argument of the learned Counsel for the appellant is that not taking x-ray, which could have revealed the problems of lung and liver is a case of medical negligence. We again come to the expert evidence of Dr. Mahadevan in which he has stated as under:
Q. Is it not a case wherein the doctors failed to exercise their skill and care in a reasonable manner especially when this is an elective operative?
A. Chest x-ray should be taken. But not taking a chest x-ray for a minor operation in the case of 40 years old man cannot be said to be negligence.
12. This factum of not taking the chest x-ray in a minor operation of a patient less than 40 years cannot amount to be a case of medical negligence, has been reiterated in the cross-examination and re-examination of the expert witness, more than once carried out by the appellant. Our attention has also been drawn to a medical literature produced by the learned Counsel for the respondent through a book titled 'Lee's Synopsis of Anaesthesia' Eleventh Edition by R.S. Atkinson, OBE, MA, G.B. Rushman, MBBS FRCA, N.J.H. Davies, DM, MRCPFRCA, in which under the head investigations, the following as been stated:
4. Chest radiograph. In patients of retirement age, immigrants, or with a history or signs of chest disease, or following trauma. It may be useful as a baseline for post-operative care. It does, however, carry a small risk of radiation damage. Routine chest radiography of patients not being operated on for chest or heart conditions has been questioned.
(Emphasis supplied)
13. It is not the case of the appellant that the deceased was of retirement age or had a history of chest disease or having a trauma or he was being operated for chest disease. If these symptoms are not there, the chest radiograph would not be justified. On the contrary as already observed earlier, it however carries a risk of radiation damage. Our view is further substantiated and which remains unrebutted is the question and answer reproduced below at the time of cross-examination of the expert witness:
Q. Do you mean to say that the concerned doctors are in any way negligent in treating and operating the patient as indicated in the case sheet?
A. They have already seen the patient and have made a proper pre-operative, assessment from the patient and have got an informal consent from the patient and proper pre-medication was given and throughout the procedure the patient was monitored, including the Oxygen saturation which was maintained normal throughout the procedure and when the complication occurred after the surgery they have tried the maximum to save the patient and I do not find any negligence on the part of the doctors concerned. They have taken due care and caution in this case.
14. This material and the evidence of expert brings out clearly that no negligence can be attributed on the part of the respondents in not taking chest x-ray. Neither any expert opinion nor any medical literature has been brought on record by the appellant to contradict this expert evidence supported by medical literature brought on record by the respondents.
In view of above, we find no merit in this plea of not having taken chest x-ray being a case of medical negligence on the part of the respondents.
15. We have also gone through the history record and the surgical notes perhaps. It is as an afterthought that it is argued by the learned Counsel for the appellant that no pre-surgical tests were carried out more so that no ECG report has been produced. We see the history record dated 5.6.1995 when the patient was admitted in which the pre-anaesthesia tests were carried out and also there is a reference that ECG was taken and against this the physician had noted--NAD (no abnormality detected). It was the case of the appellant that this ECG was never produced. But when we put specific question to the learned Counsel for the appellant, that did he at any time raise this point of cross-examination of the respondent's witness, the answer was nil.
16. It is not the case of the appellant anywhere that hospital record was fabricated or written later on. The record maintained in normal terms has to be accepted unless challenged and there is no such challenge except orally at this stage.
17. As per law laid down by the Hon'ble Supreme Court in the case of Jacob Mathew v. State of Punjab and Anr. , the onus to prove negligence lay on the appellant/complainant and in our view, in the aforementioned circumstances, the appellant/complainant has completely failed to prove by way of expert opinion or by medical literature any negligence on the part of the respondents, in view of which we find no merit in this appeal, hence dismissed.
No order as to costs