Delhi High Court
Sudha Garg vs Union Of India & Others on 7 January, 2009
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
CS (OS) No. 426/2002 Page 1
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) NO. 426 OF 2002
% Date of Decision : 7th January, 2009.
SUDHA GARG ...Plaintiff.
Through Mr. Manish Vashisht & Mr. Sameer
Vashisht, Advocates.
VERSUS
UNION OF INDIA & OTHERS .... Defendants.
Through Ms. Monica Garg, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1.Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ? Yes.
3. Whether the judgment should be reported Yes.
in the Digest ?
SANJIV KHANNA, J:
1. The plaintiff, Smt. Sudha Garg, alleges medical negligence and seeks recovery of damages of Rs.53,41,723/- from Union of India, Chief of Army Staff, Adjutant General, Directorate General of Medical Services (Army) and Army Hospital (Referral and Research), defendant Nos. 1 to 5, respectively (hereinafter collectively referred to as defendants, for short) and two doctors Lieutenant Colonel A.K. CS (OS) No. 426/2002 Page 2 Nagpal and Lieutenant Colonel V.K. Shukul (hereinafter referred to as defendant Nos. 6 and 7 respectively).
Admitted facts
2. The plaintiff is wife of Brigadier M.L. Garg (Retd.) and on 14th October, 1999 had visited Gastroenterology Department of the defendant no.5 hospital, at Delhi. She was examined by defendant No. 6, Gastroenterologist and diagnosed as an old case of severe gastritis with history of heart burn. OPD card/ case history Exh.PW1/2 dated 14th Oct.,1999, an admitted document, records that the plaintiff did not complain of pain in abdomen and dysphagia (difficulty in swallowing). She was advised to undergo Upper Gastro Intestinal Endoscopy (UGIE, for short) on 15th October, 1999. UGIE is a procedure for visual examination of lining of food pipe, stomach etc. by using a flexible tube with an endoscope, which is inserted through mouth, swallowed and gently pushed inside the esophagus or food pipe.
3. The case sheet dated 15th October, 1999, prepared by defendant No. 6, is an admitted document Exh. PW1/1, records that UGIE was attempted but was not successful as the plaintiff could not swallow the endoscope. Exh. PW1/1 also records that the plaintiff had earlier undergone CA Tongue and fleshy vascular structures were seen post to larynx. Plaintiff was advised ENT evaluation. CS (OS) No. 426/2002 Page 3
4. Defendant No. 7 is an ENT specialist working with the defendants and had examined the plaintiff on 16th October, 1999 in the defendant no.5 hospital. Case sheet dated 16th Oct.,1999 was denied by the defendants at the time of admission/denial, but it is clear from the affidavit/evidence of defendant No. 7 that he has accepted the said case sheet. The said case sheet has been marked Exhibit P-1A/DW-1. Case sheet dated 16th October, 1999 records that UGIE had been attempted several times yesterday (i.e. 15th October, 1999) and the plaintiff had developed odynophagia (painful swallowing) to solids and liquids after one day. After physical examination, defendant No. 7 has recorded that the plaintiff had swelling in left pyriform sinus (left aperture space of voice box) most likely due to iatrogenic trauma (injury caused during medical or surgical procedure) during UGIE and pooling of saliva in left PF FOSSA (left aperture space of voice box). The defendant No. 7 prescribed tablet Rentec and liquid antacid for a period of twelve days. He also prescribed Prednisolone 40 mg each for three days to be tapered down by 10 mg every three days for a total period of twelve days.
CLAIM OF THE PLAINTIFF
5. The plaintiff claims negligence in performance of UGIE, which had damaged her esophagus, and in follow up diagnoses, treatment and medication, which had the effect of masking or suppressing CS (OS) No. 426/2002 Page 4 symptoms and failure to treat damage/perforation of esophagus. During the period 16th to 23rd October, 1999 the plaintiff continued to have pain in her throat and difficulty in swallowing liquid or food. Plaintiff's husband Brigadier M.L. Garg (Retd.) consulted defendant No. 6 on phone twice and was advised that her condition would settle down. The condition of the plaintiff continued to deteriorate. She developed fever. On 24th October, 1999, the plaintiff developed severe backache and a bag like hang on the right side of her neck. On 25th October, 1999, the plaintiff had severe pain in the left shoulder spreading to her arm and chest, accompanied by profuse sweating. She was shifted to M.P. Heart Institute but examination/tests were negative for a cardiac problem. However, the X-Ray revealed that the plaintiff‟s pleura (cavity along the thin lining that encloses the lungs) was full of fluid (thick yellow pus) in both lungs. She was taken to and admitted in the intensive care unit of the Batra Hospital.
6. It is the case of the plaintiff that she was diagnosed to be suffering from Bilateral Empyema Thoracis with Mediastinitis in both lungs and Pericarditis with septicemia (collection of pus on both sides in the chest cavity with inflammation and infection in the space enclosed between the lungs and chest cage with severe bacterial infection in the blood stream) caused due to rupture of esophagus. In nutshell the case of the plaintiff is that UGIE unsuccessfully attempted on 15th CS (OS) No. 426/2002 Page 5 October, 1999 had caused damage to her esophagus (food pipe in her throat) and as a result of which air filled up her mediastinum (space between the lungs and the chest walls) shifting the same to the right side leading to infection in the lungs and causing pus formation. This also resulted in Pyopneumothorax on the right side (pus and air in the cavity outside lungs). There was negligence and lapse in follow up treatment after 15th Oct.,1999 by the defendants who failed both in diagnoses and treatment.
7. The plaintiff remained in Batra Hospital from 25th October, 1999 till she was discharged after 92 days on 24th January, 2000. During this period, she suffered extreme trauma, complications and was close to death. By sheer miracle she has escaped and has survived.
8. The plaintiff and her husband initially took up the matter with the Army Authorities but without success and thereupon filed a writ petition in this Court, which was dismissed as withdrawn with liberty to the plaintiff to approach an appropriate forum. Thereupon, the present suit for recovery was filed.
STAND OF THE DEFENDANTS
9. Written statement to the present suit has been filed by the Army Hospital, defendant No. 5. The doctors, defendant Nos. 6 and 7 and others have not filed separate written statements. However, it is admitted case of the parties that defendant Nos. 6 and 7 are CS (OS) No. 426/2002 Page 6 employees of defendant No. 1 and were working in the defendant No. 5 hospital. The written statement filed by the defendant No. 5 has been adopted by other defendants. It is stated in the written statement that UGIE was attempted twice but was not successful as the plaintiff was unable to swallow the endoscope. The plaintiff had/has concealed that she had undergone operation to remove a non-healing cancerous ulcer from her tongue in 1997 and this had changed anatomy of her mouth, which had caused failure of the endoscopy procedure. There was no damage or perforation of esophagus as symptoms associated were not present on 16th Oct,1999 when the plaintiff was examined by defendant no.7 and for the next 9/10 days. There was no link between the medical treatment given by the defendants and subsequent medical condition for which the plaintiff was admitted and treated in the Batra hospital. Issues
10. On the basis of pleadings of the parties, the following issues were framed on 20th July, 2004:-
(1) Whether the alleged aggravation of the plaintiff‟s medical condition was a result of and attributable to the negligence of the defendants? OPP (2) Whether the plaintiff was suffering from tongue cancer at the time when endoscopy was performed on her by defendant No. 6 and if so, to what effect? OPD CS (OS) No. 426/2002 Page 7 (3)Whether the plaintiff is entitled to the recovery of any amount on account of the cost of medical expenditure incurred by her on her treatment at Batra Hospital and towards damages from the defendants and if so, from which of the defendants? OPP (4) Whether the plaintiff is entitled to any interest, as claimed by her and if so, at what rate and on what amount?
(5) Relief.
ISSUE NOS. 1 and 2
11. Medical negligence or deficiency in service whether under tort (i.e. when duty to take care exists) or under contractual obligation is decided on the basis of fault liability. Doctors, hospitals, nursing homes etc. are under an obligation to provide and exercise reasonable care and skill. Question of negligence is decided on the benchmark of reasonable care as propounded in Blyth versus Birmingham Waterworks Company, reported in (1856) 11 Ex. 781 in the flowing words- "negligence is the omission to do something which a reasonable man, guided upon by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do". The phrase "reasonable man" is substituted by a "reasonable professional" i.e. reasonable doctor or reasonable specialist/consultant etc., when this principle is applied to cases of alleged professional negligence. The aforesaid test was applied in CS (OS) No. 426/2002 Page 8 Bolam versus Friern Hospital Management Committee, reported in (1957) 2 All England Reporter 118 and explained in the following words:-
"But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the Clapham Omnibus, because he has not got this special skill. The test is a standard of the ordinarily skilled man exercising and professing to have that special skill. A man need not profess the highest expert skill at the risk of being found negligent .......... it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art".
12. Negligence in the words of „Bolam‟s test‟ means failure to act in accordance with the standards of reasonably competent medical men at that time. A doctor or a hospital would not be negligent if he or they have acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. Common professional practice in both diagnosis and treatment may by themselves be negligent, as has been accepted in some cases, but the common professional practice accepted and followed, is to be disregarded only when there is strong evidence that the systematic or the common practice was a result of careless disregard for safety of others or contrary to reasonable prudence.
13. Courts and tribunals have accepted that in the field of diagnosis and treatment there is scope for genuine difference of CS (OS) No. 426/2002 Page 9 opinion and a doctor is not negligent because his conclusion differs from that of other professional men. Merely because there is a body of opinion which takes a contrary view, is not sufficient. Difference of opinion in practice exists in medicine as in other professions. These have to be respected and cannot be categorized as negligence. The true test is whether a reasonable doctor/hospital could have made the same diagnosis or given the same treatment. Both parties have argued and based their submissions on the benchmark of common professional practice and on the basis of a ordinary skilled doctor/specialist.
14. Doctors/hospitals are not insurers or guarantors, unless a doctor/hospital has given any specific assurance. Negligence is not established because treatment does not give desired results. Human body is complex and a hospital or a doctor owe a duty to use reasonable diligence, skill, care and caution in diagnosis and treatment but cannot guarantee a favourable outcome or result. Hindsight makes us wiser and cannot be made the basis for deciding question of negligence. The above dictum and principles have been applied by the Supreme Court in Jacob Mathew Vs. State of CS (OS) No. 426/2002 Page 10 Punjab (2005) 6 SCC 1 and Spring Meadows Hospital Vs. Harjot Ahluwalia (1998) 4 SCC 39 and other cases.
15 In tune with the above principles, the plaintiff to succeed in the present suit is required to establish that the treatment meted out by the defendants on 15th October, 1999 and 16th October, 1999 had violated reasonable care and skill required from a normal doctor/consultant and also establish that the resultant complications had causal connection with the acts/omissions on the part of the defendants.
16. On 15th October, 1999, defendant No. 6 had attempted UGIE at-least twice but was unsuccessful as endoscope was not able to enter the throat, is an admitted fact as is clear from the notes of defendant No. 6 Exhibit P-1/1 and case note of defendant no.7 Exh. P-1A/DW-1.The next question is whether during the said procedure esophagus of the plaintiff was damaged and whether the defendants including defendant No. 7, Dr. (Lt.Col.) V.K. Shukul, Specialist ENT Department, were negligent by failing to take reasonable care in both diagnosis and treatment.
17. Clinical manifestations of esophageal perforation as accepted by both parties are; (1) neck/chest pain,(2) odynophagia (painful swallowing),(3) respiratory distress, (4) tachycardia (fast pulse), (5) tachypnoea (fast respiration), (6) fever, (7) subcutaneous emphysema/crepitus(crinkling feel when you press the neck) and CS (OS) No. 426/2002 Page 11 shock.(see "Surgery of the Oesophagus" by G.G. Jamieson and "Gastrointestinal and Liver Diseases" by Sleisinger and Fordtran enclosed with affidavit of Dr. (Col.) A.k. Nagpal, Defendant no.6/DW-
2).
18. Dr (Col.) A.K. Nagpal in his cross examination has stated that the plaintiff was not suffering from any iatrogenic trauma on 14 and 15th Oct., 1999.He did not thereafter physically examine the plaintiff. Dr. (Lt. Col.) V.K. Shukul, defendant No.7 and DW-1, had examined the plaintiff on 16th Oct.,1999 and in his clinical notes Exh. P1A/DW- 1 has mentioned that the plaintiff had undergone attempted UGIE and was complaining of odynpohagia for one day, she had swelling in the left aperture of the voice box and collection (pooling) of saliva in the left Pyriform Fossa- most likely due to iatrogenic injury from UGIE.
19. In addition the plaintiff relies upon report dated 28th Oct.,1999 of the CT scan performed on 27th Oct.,1999 Exh. PW-7/2, which records the following abnormalities (1).there was pneumomediastinum (2) mediastinum was shifted to the right side (3) patchy areas of consolidation in both lungs (4) pyopneumothorax on the right side (5) empyema on left side and drainage tubes on both sides (6) margins of esophagus at the level of thoracic inlet were irregular and possibility of fistulous communication with trachea CS (OS) No. 426/2002 Page 12 at some level appears likely and (7) there was evidence of surgical emphysema in the neck.
20. On the question of damage to esophagus, whether Case notes Exh.P-1A/DW-1 and report Exh.PW7/2 establish the same, the plaintiff has examined, Dr.(Colonel) S.K. Thakur, PW-4, Dr. Vidur Jyoti, PW-6, Dr. Sunil Kathuria, PW-8 and Dr. (Colonel) Arun Kumar, PW-10.The said doctors had treated the plaintiff after she was admitted to Batra hospital and therefore have personal knowledge of the cause and reasons for the medical complications. They are also experts or specialists and therefore competent to depose on whether reasonable care and skill as required from a normal doctor/consultant was exercised by the defendants in diagnosis and treatment.
21. Dr. (Colonel) S.K. Thakur, PW-4 in his affidavit by way of evidence in chief has stated that in on 02.04.1998 he had performed UGIE on the plaintiff in the defendant hospital before his retirement in July, 1999 and has stated " 2. Mrs. Sudha Garg and her husband Brig Garg had informed me of her having undergone (L) hemiglosectomy and (L) RND.
Since hemiglosectomy does not entail upon the throat from inside there was no problem the endoscopy and which was smooth and eventless."
22. After, refering to Exh. Nos. P1A/DW1,PW1/1,PW1/2 and PW- 7/2 and scans on subsequent dates he has stated:- CS (OS) No. 426/2002 Page 13
"4..... It corroborates the ENT evaluation of the of the Army Hospital R&R and makes it evident that injury was caused to pharyngeal sphincter in the upper esophagus region[perforation/ruptura] during the endoscopy."
23. In cross examination he has admitted encountering perforation or rupture of food pipe is invariably accompanied by severe pain during or soon after the proceedings i.e. within minutes or almost immediately. One specific question and answer given by Dr. (Col.) S.K. Thakur,PW-4 (wrongly mentioned as PW-3 in the cross examination) is as under;-
"Q: Is it correct to say that the plaintiff‟s condition arose only due to endoscopic procedure and no other causes?
Ans. Temporally (on seeing every thing) going through all the documents there seems to no other cause, however, for me to comment on it with hundred percent certainty would not be appropriate. It is possible in the present case that the symptoms did not develop until seven to nine days after the procedure was carried out due to administration of steroids(cortisone)."
24. His statement in affidavit on prescription of cortisone and masking affect thereof is forthright "5.In spite of the fact that the ENT evaluation report having concluded that swelling in the left PF sinus was most likely due to iatrogenic trauma during UGIE, a 12 day cortisone course on tampering basis [40 mg to 10 mg and that too thrice a day] was prescribed. This masked/suppressed the severity of assignable symptoms of perforation/rupture of esophagus. That is a possible reason of CS (OS) No. 426/2002 Page 14 severity of symptoms becoming visible on the ninth and tenth day of the injury caused to the esophagus during the endoscopy. Patient however continued to have throat pain, odynophagia [painful swallowing] to solids and liquids and fever immediately after the endoscopy."
25. Dr. Vidur Jyoti PW-6 had orally advised the plaintiff to take pain killer for backpain on 23rd Oct.,1999 and had examined her on 24th Oct.,1999 at her residence. She was in a bad shape, had high fever and was administered injection voveran. The witness had examined the plaintiff at MP Heart Centre and then at Batra hospital. She has given details of the procedure, operations and treatment given.In cross examination Dr. Vidur Jyoti PW-6 admitted that he had not examined the plaintiff‟s esophagus as this was not his specialization but based on clinical notes of the army hospital and clinical symptoms and investigations in the Batra hospital he was of the opinion that the plaintiff had esophagus injury. Dr. Vidur Jyoti, PW-6 (wrongly mentioned as PW-4 in the cross examination) has opined that swelling of sinus and pooling of saliva in left pyriform sinus were attributed to iatrogenic trauma during UGIE. He has also observed that injury caused in vicinity of upper esophagus region was due to repeated attempts to perform UGIE and due to damage caused, air, saliva and food particles could have been found their way into the mediastinum through the injury. He was also of the opinion that administration of cortisone may have resulted in masking the actual CS (OS) No. 426/2002 Page 15 condition arising out of perforation of esophagus. The fact that he is related to the plaintiff‟s husband being married to a daughter of a distant cousin cannot be a ground to dis-regard his statement and opinion based on notes of the defendants and diagnostic reports.
26. Dr. Sunil Kathuria, PW-8, on the basis of P-1A/DW-1 and the C.T. scan taken in Batra Hospital on 27th October, 1999 has opined that injury was caused in the vicinity of upper esophagus region due to unsuccessful endoscopy. Paragraphs 6,7 and 8 of his affidavit read as under:-
"6. Report of the first CT Scan taken at Batra Hospital on 27-10-1999 [12tg day after the endoscopy] establishes presence of pneumo mediastinum, shifting of mediastinun towards right, irregular margins of the esophagus at the level of thoracic inlet and likely possibility of fistulous communication with trachea at some level, evidence of surgical emphysema in the next etc. This corroborates the ENT evaluation report and makes it evident that the injury was caused in the vicinity of the upper esophagus region, possibly in the pharyngeal sphincter during the repeatedly performed unsuccessful endoscopy at the Army Hospital R&R.
7. In spite of the fact that the ENT evaluation report having concluded that the swelling in the left PF sinus was most likely due to iatrogenic trauma during UGIE, also prescribed a 12 days cortisone course on tapering basis [40 mg to 10 mg and that too thrice a day]. This is a known fact that cortisones are not administered in the case of injuries [in this particular case the injury to esophagus- perforation/rupture, while performing the endoscopy], Cortisones on the contrary tend to mask/suppress the severity of the assignable symptoms of perforation/rupture of esophagus.CS (OS) No. 426/2002 Page 16
That is the reason of severity of symptoms becoming visible on the ninth and tenth day of the injury caused to the esophagus during the endoscopy. Patient however continued to have throat pain, odynophagia [painful swallowing] to solids and liquids and fever immediately after the endoscopy.
8. Mrs. Garg would have possibly been saved of complications that she developed in the following days if she was admitted in the Army Hospital R & R immediately after the endoscopy on 15-10-1999 particularly when she had started having throat pain or at least the next data after the ENT evaluation for further investigation and treatment when the patient continued to experience throat pain and swallowing difficulties and injury was considered due to the iatrogenic trauma during the UGI endoscopy performed the previous days."
27. Dr. Sunil Kathuria PW-8 in his cross-examination (wrongly mentioned as PW12) has stated that he has performed endoscopy in esophagus region and after unsuccessful UGIE it is not unusual to ask for ENT evaluation. He has referred to the case notes of the Dr. (Lieutenant Colonel) V.K. Shukul, dated 16th October, 1999 Exhibit P-1A/DW-1 that there was swelling in RF Sinus, pooling of saliva in PF, which were all suggestive of injury to esophagus. These were confirmed as the plaintiff had pain and difficulty in swallowing. He has opined that the defendant No. 7 ENT, specialist too suspected that there was injury to esophagus. He has further opined that in the plaintiff's case the perforation was small and was not visible easily. In his cross-examination he has stated that cricopharynx CS (OS) No. 426/2002 Page 17 region has three layers of tissues and breach of initial two layers denotes injury and perforation refers to breach of all layers. Injury if left untreated may become perforation. He has clarified:-
"The term injury in the criocparynx region used by me earlier is not synonymous with a perforation. It is incorrect to suggest I have been deposing falsely (vol)-I would like to clarify that in criocparynx region there are three layers of tissues and peforation refer to through and through breach of all layers and the injury denotes initial two layers only. If injury is left untreated it may become perforation. By this I mean the infection may lead to spontaneous rent in the third layer".
28. Dr. (Colonel) Arun Kumar PW-10 has similarly opined that the C.T. scan done in Batra Hospital on 27th October, 1999 (report Exh.PW7/2) and the ENT evaluation case note dated 16th Oct.,1999, Exh. P1A/DW1 were suggestive of injury to esophagus during UGIE. Dr. (Colonel) Arun Kumar, PW-10 (wrongly mentioned as PW-6 in cross examination) in his cross-examination on 18th May, 2005 has again reiterated that the investigation reports and case notes of the defendants suggested esophageal perforation resulting in mediastinities and empyma (pus collection of the throax). He has stated endoscopic procedure is contra indicated in cases of esophagus damage and he had not physically examined plaintiff‟s esophagus and but on the basis of C.T. scan reports, case records, history and as air was found in the neck as well as the chest of the plaintiff, he was of the opinion that the source was ruptured esophagus. He has also opined that rupture of esophagus can be CS (OS) No. 426/2002 Page 18 caused by endoscope. Relevant portion of the cross examination of Dr.(Col.) Arun Kumar PW 10 is reproduced below :-
Q. Is it possible that bilateral emphysema throracis with mediastinitis and pericardities with septicemia can be caused by reasons other than esophagus.
Ans. Not, in this case. There are lot of other conditions, which can cause esophagus rupture. Other conditions are not relevant for this case.
Q Are you refusing to answer that those other conditions would be.
Ans. I am restricting my self to this case.
Q. It is possible for a injury to be caused to the esophagus without any external causing agents such as endoscopy.
Ans. Not in this case. Other causes are mentioned in medical literature such as text books on Gasteronology by Sleisenger. It is not possible that the esophagus can be ruptures by the violent coughing. Forceful vomiting in particular situations has been reported to cause esophagus rupture. In my opinion the rupture of esophagus can not be with mild coughing though the esophagus may be diseased. However the mild retching my cause rupture if there is a pre-existing esophageal diseases which are prone to perfornation. (These questions are being objected by Plaintiff counsel being not part of pleading). Over one lakh upper G.I. endoscopies I have performed. I have also performed endoscopies on patients whose tongue is excised.
Q. In performing endoscopy in such patients with excised tongues do you follow the normal procedure or any specific procedure required.
Ans. We take special precautions if the patient gives history of difficulty in swallowing i.e. dysphagia. Upper GI Endoscopy is not contra indicative for such patients. In patients who have such a history before carrying out the endoscopy I would advise to CS (OS) No. 426/2002 Page 19 refer the patient for ENT examination and also advise barium swallow test. If the patient does not disclose the swallowing problem it may not be necessary that there will be a difficulty in introducing endoscope. If the patient is taking the normal food I don‟t expect any difficulty in introducing endoscope. A rupture to the esophagus by the endoscope would be result of force applied to the endoscope. The upper part of the esophagus has been raptureed because the endoscope could not be introduced.
Q. In such a situation when the endoscope is not introduced in the esophagus is it possible for the perforation to occur either by neck movement or coughing or retching.
Ans. Unlikely.
Any unsuccessful introduction of endoscope tube can result coming of blood from throat. The extent of injury can not be assessed by amount of blood. The perforation of rupture of esophagus means penetrating through all the linings of the esophagus into the chest; it is not possible to pin point the exact location (chest or neck) but it appears in the upper part of esophagus.
Q. Is there any method in medicine such as CT-SCAN or MRI or any other method by which the existence of such an injury can be ascertained 10 to 15 days after the injury taking place.
Ans. The injury can be detected by the symptoms of patient, careful clinical examination of patient, chest X-ray, CT-SCAN and Gastrograffin studies but it may not be possible in all the patients. Gastrograffin study can pin point the site of perforation but not in all cases. I am not aware that whether a gastrograffin study was carried out in plaintiff‟s case-again said that I don‟t remember. In my opinion a careful clinical examination by the ENT specialist on the day after the attempted endoscopy coupled with the history of failed endoscopy (high index of suspicion) could have resulted in a proper diagnosis of a rupture. Failure to introduce the endoscope tube after repeating attempts and patient presenting with pain in throat, painful swallowing within a short time after the procedure possibility of a injury or a rupture should be CS (OS) No. 426/2002 Page 20 considered. The patients can present variety of symptoms and signs within 24 hours like feeling difficulty in swallowing, pain in the throat, painful swallowing, swelling and crepitus (crinkling sound when you press the neck) in the neck, shock and innumerable symptoms in science. As formed head of RR Hospital I can say that it is normal practice that a technician to be present to assist in endoscopic procedure and holding the head and mouth guard of the patient. It is incorrect to say that I am deposing falsely."
29. Doctors in one voice have opined that the medical complications had arisen due to injury to esophagus caused by unsuccessful UGIE. They have also in one voice stated symptoms indicated injury/perforation of esophagus and prescribing cortisone is contra-indicated and in such cases as it suppresses/masks the severity of assignable symptoms but the problem/cause persists. Medical complications as per the said doctors were linked and causally connected with the diagnosis and treatment by the defendants. Symptoms mentioned in medical texts as indicative of perforation of esophagus were similar and co-relatable to the symptoms of the plaintiff. In spite of the symptoms, correlation and association of the clinical symptoms with damage/injury to esophagus, no immediate steps were taken to rule out and treat injury/perforation of the esophagus. Medicines were prescribed with 12 day course of Prednisolone (steroid) on tampering basis, which as stated above is contra-indicated. No date for further visit and follow up was fixed. Case note Exh. P1A/DW1 and statement of Dr. CS (OS) No. 426/2002 Page 21 (Lt. Col.) V.K. Shukul does not suggest that the plaintiff was advised on symptoms associated with damage/rupture of the esophagus and examination or tests if the symptoms persisted, continued or deteriorate. The whole approach was casual and contrary to what a normal ENT specialist would have advised with the said symptoms. Masking effect and above facts explain the gap between 16th Oct.,1999 and 25th Oct.,1999 when the plaintiff had to be hospitalized. The plaintiff and her husband were not informed and made aware of the medical complications and risk of injury to esophagus.
30. Dr. (Col.) A.K. Nagpal, DW-2 in his comments dated 16th Nov.,1999, Mark DX1, has stated the UGIE failure was due to distorted local anatomy of the throat and complications were due to pre existing neoplastic morbid condition. Major general R.P. Arora‟s report dated 5th Dec.,1999 is to the same effect and states that complications may be due to secondaries in the mediastinal lymph nodes. Report of Lt. Gen. S.S. Grewal dated 12th Jan.,2000 records that the plaintiff had encountered "in all probability, the aggravation of the already existing disease process i.e. advanced malignancy with which she was suffering, contributed to severe immune compromise leading to bacterial septicemia". These pleas of reoccurrence of cancer and malignancy have been given up and indeed there was none.
CS (OS) No. 426/2002 Page 22Doctor (Col.) A.K. Nagpal, DW-2 has stated in his cross examination that he did not have relevant records except OPD register and letters written by plaintiff‟s husband, when he had submitted his comments on 16th November, 1999.
31. The plaintiff was operated in 1997 for non-healing ulcer on the left edge of her tongue (which were found to be squamous cell carcinoma) and had undergone reconstruction of the tongue and removal of nodes. After the said operation, the plaintiff had recovered and was not required to undergo either radiation or chemotherapy. Dr. Kapil Kumar, PW-3 in his affidavit has stated that the surgical procedures performed by him in January, 1997 did not entail upon the throat from inside and will not cause interference in performance of endoscopy. In his cross-examination, he has confirmed that he had performed Laryngoscopies on patients on whom hemiglossectomy had been performed but did not encounter any difficulty in the said procedure. He has further stated that the operation by him did not touch the throat, larynx, pharynx and esophagus and only neck nodes had been removed. The wounds had healed properly and there was no re-occurrence of cancer. Endoscopes are flexible and according to him there should not have been any difficulty in performing endoscopy. To him the oral cavity of the plaintiff was 90% normal. The plaintiff after undergoing the said surgical procedure in 1997, on 2nd April, 1998 had earlier CS (OS) No. 426/2002 Page 23 undergone upper UGIE as on that occasion she was suffering from severe gastritis. Dr.(Colonel) S.K. Thakur, PW-4 had performed the said UGIE and has in his affidavit by way of evidence stated that he had not faced any problem and the entire process was smooth and eventless. He had also stated that hemmiglossectomy does not entail upon the throat from inside.
32. In the staff Court of inquiry dated 23rd Jan.,2001 Exh.P1/12, after examining the entire case history and records of the Batra hospital, it was held that the complications were attributed to burst of abdomen as a result strangulation of bowel loop in previous hysterectomy. It is also stated that alleged esophageal rupture had never occurred. This is the last report and was made after the plaintiff survived and was discharged. Thus the defendants were aware that allegation of malignancy cannot be sustained. Change and contradiction in stand is apparent. Plea of burst of abdomen is not pleaded in the written statement and is not supported by the defendant Nos.6 and 7. Both DW-1 and DW-2 have not supported the said theory. Witnesses of the plaintiff were not cross examined on the plea of burst of abdomen. Attempt to cover up in the staff Court of Inquiry is apparent.
33. Staff Court of Inquiry (letter dated 23rd January, 2001, Ex.P- 1/12 ) came to the conclusion that the CT SCAN with Gastro- Graphics study did not reveal rupture of esophagus. However, it was CS (OS) No. 426/2002 Page 24 admitted that no malignant cells were found on Cytological examination, a stand taken by the defendants in their earlier reports. The defendants have not pleaded burst abdomen as result of strangulation of bowel loop in the previous hysterectomy as the cause of medical complications. Neither any evidence was lead to support the said finding in the Staff Court of Inquiry. Both defendant No.6 and 7 in their cross examinations have admitted that they did not find any symptoms of burst abdomen, when they had examined the plaintiff. Dr. V.K. Shukul, DW-1, when confronted with the earlier report of the defendant and the Staff Court of Inquiry has stated as under:-
"It is correct to say that that there is no report of mine suggesting that I submitted my comments to the department or staff court of inquiry. I have been shown the document EX PW1/DW! Dated 12th January 2000 from the office of Adjutant General, Army Headquarters, New Delhi and according it her condition was due to advance malignancy with which she was suffering. I have been shown EX P!/12 dated 23 January 2001. This is the finding of staff court of inquiry communicated by Adjutant General, Army Headquarters which shows the condition of plaintiff was due to burst abdomen. I can not say whether these reports are self contradicting or not or they are truthful or not. Before submitted the reports the entire case sheet might have been perused and according to it the report have been filed. It is wrong to suggest that the report of departmental investigation and staff court of inquiry are fabricated and not based on record."CS (OS) No. 426/2002 Page 25
34. Doctor (Col.) A.K. Nagpal, DW-2 has stated that he does not know on what basis the staff court of inquiry had concluded that the case of the plaintiff was of a bloated intestine. He has confirmed that the plaintiff was not suffering from bloated intestine on 14th and 15th of October, 1999, as per material on record.
35. The findings of the staff court of inquiry that there was no rupture of the esophagus is contrary to what has been repeatedly stated by doctors of the Batra Hospital and has been discussed above. It fails to take notice of the prescription and findings in Exh.P- 1A/DW-1. The medical text books referred to above state that perforation of esophagus can take place during endoscopy in 0.03 to 0.1% cases and perforation of esophagus is more common than perforation of stomach. There could be weakening to wall of esophagus during the procedure, which if left untreated leads to rupture. Defendant Nos. 6 and 7 were aware of the risks and symptoms associated but did not take remedial steps and precautions by asking the plaintiff to come for follow up. Medicines were prescribed for 12 days without explaining risk factor and need to follow up/report. Defendant Nos.6 and 7 were working with defendant No.5 hospital and cannot push and put blame on each other. The clinical symptoms mentioned in the case history note dated 16th October, 1999 Exhibit P-1A/DW-1 as held above and as per statements of Dr. (Col.) S.K. Thakur PW-4, Dr.Vidur Joyti PW- CS (OS) No. 426/2002 Page 26 6, Dr. Sunil Kathuria PW-8 and Dr.(Col.) Arun Kumar PW-10 were all symptoms associated with injury/rupture of esophagus.
36. Medical treatment and procedures undergone by the plaintiff at Batra Hospital are not disputed and are supported by documents as well as statement of the doctors. The doctors were not cross examined on the medical procedures/treatment which were undertaken/given to the plaintiff and their need and necessity. The casual connection of the medical complications, which were treated during the plaintiff‟s 92 day‟s stay in Batra Hospital from 25th October, 1999 till 24th January, 2000, has not been challenged and questioned in the cross-examination of the doctors. Both defendant Nos. 6 and 7 in their affidavits have not challenged and disputed medical complications and the treatment given in the Batra Hospital.
37. In view of the findings given above, it is held that the plaintiff was not suffering from lung Cancer at the time of Endoscopy on 15 th October, 1999. Issue No.2 is decided against the defendant and in favour of the plaintiff. Issue No.1 is also decided in favour of the plaintiff and it is held that the defendant is guilty of negligence and the casual connection between negligence and medical condition and treatments which the plaintiff had to undergo is established. Issue No.3
38. The plaintiff has placed on record payments of Rs.6,21,162/- made to Batra Hospital for 92 days of hospitalization from CS (OS) No. 426/2002 Page 27 25.10.1999 to 24.1.2000. The payment voucher issued by Batra Hospital has been marked Ex.PW9/1 & PW9/2. The plaintiff has also filed on record vouchers/bills for purchase of medicines ( pages 141 to 532) in the list of documents filed on 18th September, 2002), which have been collectively marked as Ex.PW 10/1. The aforesaid bills consists of payments made to hospital pharmacy of Rs.1,69,027/- medicines purchased from other medical stores of Rs.1,98,611/- and payment for other special items of Rs.58,688/-. The bills/voucher issued by Batra Hospital, have also been proved by PW-9, Mr. Ashok Kumar, Office Assistant, Billing Department, Batra Hospital and Mr. Sanjay Raj, PW-10 who was working in Batra Hospital Pharmacy.
39. These payments have not been specifically questioned and challenged in cross examination of the plaintiff and her husband, who had appeared as PW-1 and PW-2.
40. In view of the above, it is held that the plaintiff has been able to prove and establish expenditure of Rs.10,47,488/- on hospitalization and medication for her treatment.
41. The plaintiff has also claimed Rs.300/- per day towards medication and special diet for the period after 25.1.2000 and Rs.50,000/- towards stomach operation. In addition, the plaintiff has claimed compensation of Rs.35 lacs towards pain, physical and mental agony, deterioration in quality of life and compensation for loss of expentency of life.
42. The plaintiff has not undergone any medical operation of stomach. The plaintiff has survived and is hale and hearty. She was CS (OS) No. 426/2002 Page 28 seen to be present in the Court at the time to final arguments. However, the pain and agony, which she had undergone during her hospitalization from 25th October, 1999 till 24th January, 2000, is understandable and should not be ignored. She had to be repeatedly operated to drain out puss and debris. Nasal and mouth feed were not possible and a tube had to be inserted in the small intestine by performing jeunostomy. Later on stomach had to be left open as there were obstructions in the intestines. Intestines were found to be stuck and were operated. In the last week of December she developed hypotension and drop in urine output and leak from abdominal stitches. Gall Bladder was found to be pre-gangrenous and operated upon. Doctors had at one stage opined that the plaintiff was suffering from multi organ disfunction and had lost all hope. It is not difficult to understand mental agony and pain suffered by the plaintiff and her family members, specially the husband of the plaintiff. The plaintiff is entitled to non-pecuniary damages for suffering pain and mental agony etc. which keeping in view the pain and suffering during the prolonged illness and complications is assessed at Rupees 2 lacs.
Issue No.4
43. The plaintiff has claimed interest @ 24% per annum. However, during cross-examination of the plaintiff PW-1, she has admitted that the bank rate of interest was 8 to 9 % when the suit was filed.(Banks CS (OS) No. 426/2002 Page 29 compound interest at quarterly/six-monthly rests.) Keeping these aspects in mind, I feel that the plaintiff is entitled to interest @ 10% per annum on Rs.10,47,488/- with effect from 1st March, 2000 till payment is made. The date of 1st March, 2000 has been fixed as the plaintiff was discharged from the hospital on 24th January, 2000 and one month period thereafter was sufficient for the defendants to examine the claim and reimburse the expenditure incurred on the plaintiff. The plaintiff will be also entitled to future interest @ 10 % on Rs.2 lacs awarded towards non-pecuniary compensation from the date of judgment till payment is made.
Relief
44. The suit of the plaintiff is decreed against the defendants jointly and severally for Rs.12, 47, 488/-. The plaintiff is also entitled to interest from the defendants @ 10 % per annum on Rs.10,47,488/- with effect from 1st March, 2000, till payment is made and on Rs.2 lacs with effect from date of this Judgment till payment is made. Decree sheet will be drawn accordingly. The plaintiff will be also entitled to costs.
(SANJIV KHANNA) JUDGE JANUARY 7, 2009 VKR