State Consumer Disputes Redressal Commission
Neela Jayakumar vs Dr. K.R. Palanisamy, Medical ... on 26 May, 2023
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Date of filing : 21.09.2011
IN THE TAMIL NADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, CHENNAI.
Present: Hon'ble Thiru Justice R.SUBBIAH ... PRESIDENT
Thiru.R VENKATESAPERUMAL ... MEMBER
C.C. No.1 of 2012
Orders pronounced on:26.05.2023
Neela Jayakumar,
W/o. (late) Jayakumar,
No.385/101-A,
Saradha College Main Rd.,
Alagapuram,
Salem 636 016. ... Complainant
vs.
Dr.K.R.Palanisamy,
Medical Gastroenterologist,
Department of Gastroenterology,
Apollo Hospitals,
No.21, Greams Lane,
Chennai 600 006.
2. The Apollo Hospitals,
Rep. by its Chairman &
Managing Director Dr.Pratap C. Reddy,
No.21, Greams Lane,
Chennai 600 006. ... Opp. Parties
For Complainant : M/s. H.L.C. Associates
For Opp. Parties : M/s.C.Manishankar
This Complaint came up for final hearing on 23.01.2023
and, after hearing the arguments of the counsels for the
parties and perusing the materials on record and having
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stood over for consideration till this day, this Commission
passes the following:-
ORDER
R.Subbiah, J. - President.
On the allegation that the death of her husband had occurred due to the medical negligence & lack of clinical care on the part of the Opposite Parties, the complainant has come up with the present complaint and, in brief, her case is as follows:-
The husband of the complainant was a person with normal health and he was medically treated at the 2 nd OP Hospital in the year 2007 by the 1st OP on whose directions, he was on constant medication and undergoing endoscopy procedure from time to time.
On 09.12.2010, he visited the 2nd OP for a routine medical check-up and the 1st OP, who examined him, insisted that he should undergo another routine endoscopy by stating that the procedure was routine and so simple that he would be discharged on the next day itself. The patient was admitted on 12.12.2010 for the procedure scheduled on 3 13.12.2010, however, neither the patient nor his wife/complainant was informed by the 1st OP or other authorized persons of the 2nd OP about the risks involved in the procedure.
While similar earlier procedures were done in a duration of less than half-an-hour, on 13.12.2010, in the morning, at the instructions of the 1st OP, the patient was administered 3 units of Plasma and, after being taken for the procedure at 11.40 AM., he was brought out only at 1.30 PM. The complainant questioned the 1 st OP for the long time taken for the procedure, for which, he informed her that the patient's BP was low before the procedure and they had to wait for the BP to stabilize and thereafter, had done the procedure. He further informed that the procedure went on well as there was no internal bleeding and that two bandings were done.
When the patient was in the Recovery Room hardly 10 - 15 minutes after the procedure for which he was given anesthesia, he was left to walk alone to the Toilet where he fell semi-unconscious, whereupon, he was retrieved by the 4 hospital staff and taken to the ICU. The complainant had questioned the 1st OP as to why he had performed the procedure without making the precautionary measures to overcome any emergency situation considering the history of her husband's health. The said OP kept quiet and made an assurance that he would manage the situation. The patient had developed labored breathings on 14.12.2010, for which, it was the explanation of the 1st OP that it was due to fluid overload induced by pressure medications. As the patient's condition was further worsening, he was shifted to the Critical Care Unit with labored breathing & drastic fall in urine output, for doing dialysis and he was put on the Ventilator. Subsequently, he developed high fever and the lab tests confirmed that he had septicemia. He was examined by various Doctors of the 2nd OP who conveyed that he continues to remain unresponsive owing to the features of septicemia shock. After the false assurances of the OPs that the patient would get recovery and a miracle would happen, on 21.12.2010 at 6 PM., the patient had passed away. The OPs totally misled the complainant 5 throughout, with the sole aim to extract money from her, who had made payments to the tune of Rs.8 lakh.
She requested the OPs to furnish her with the case sheet of her husband, however, only some selective documents were belatedly furnished. Even the limited documents that were furnished to her for the treatment provided to her husband from 12.12.2010 to 21.12.2010 reflects a number of lapses, shortcomings, contradictions, etc. which would clearly show the medical negligence and service deficiency on the part of both the OPs. She issued a legal notice, dated 28.02.2011, to the OPs and the 1 st OP had sent a belated reply on 07.04.2011 with false averments, hence, the present complaint for a direction to the OPs to jointly and severally pay to her a sum of Rs.90 lakh as damages/compensation, besides Rs.50,000/- towards the litigation expenses.
2. The 1st OP resists the complaint by filing an elaborate written version, wherein, apart from presenting in detail the particulars of the patient's previous medical 6 history that he was already suffering from liver cancer, it is inter alia stated that, on 09.12.2010, with signs of active liver disease due to abnormal prothrombin time and low level serum albumin, the patient voluntarily came to the 2nd OP/Hospital; that the patient had been consulting/receiving treatment from the 1st OP from 2007 onwards at intervals for the possibilities of liver cirrhosis with portal hypertension and thereafter, for the complaints of pedal edema and blood vomiting due to esophageal varices and several portal hypertensive changes in the stomach and he was on and off treated by deployment of endoscopic bandings; that, as such, on the date of visiting the OPs, the patient, who already knew his health condition, was also explained about the nature of treatment advised to him viz., endoscopic management to ligate the varices, hence, the allegation that the complainant and her husband/patient were not informed about the risks of the endoscopy procedure is only self-serving in nature; that the procedure was performed on 13.12.2010 at 12 Noon after the informed consent of the patient and his wife; that, during the procedure, the patient 7 had encountered a slight drop in the BP which was immediately stabilized and, as he had Grade-III esophageal varices, which is an indirect marker for liver cirrhosis with portal hypertension, 3 bandings were done for the obliteration of varices; that the patient was shifted in a stable condition at 12.45 PM. to the recovery area, where he was subjected to continuous monitoring until he recovered from sedation with a BP reading of 150/100 mm/hg. till 2 PM. and thereafter, he walked to the Toilet in the recovery area only at 2.30 PM., as such, the allegations that the patient was left unattended at that time and he was found unconscious at the Toilet are totally false and made with ulterior motives; that the complainant was apprised of the need to keep the patient in the ICU and she cannot plead ignorance of the same after giving consent in that regard; that the complainant herself admitted that the 1 st OP performed the procedure only when the BP was stable and that being so, it is totally meaningless to allege that the reason for low BP was not diagnosed by him; that the 1 st OP visited the patient several times during the day and in the 8 nights and, at every stage, whenever the patient was stable or otherwise, the exact condition was discussed at all times with the patient's wife/complainant & the relatives present there; that, on 14.12.2010, as the patient's oxygen saturation was low, he was put on Ventilator and, apart from that, he had low urine output and also back-pain, whereupon, after due information and explanation to the patient's wife and brother-in-law, treatment was continued with the co-ordination of various other Specialists like Nephrologist, Hematologist, Orthopedist, etc. and, on 15.12.2010, he was on CRRT (Continuous Renal Replacement Therapy), inotropes and broad spectrum antibiotics; that although the patient continued to be critical, he showed signs of stability on 16.12.2010 and hence, he was off the Ventilator since maintained oxygen saturation with Non-Invasive Ventilator; that, subsequently, he suffered hypothermia and encephalopathy which indicated continuing sepsis and worsening liver function; that, in view of the critical nature of the disease, there was no marked improvement and whenever the complainant was 9 not found at the ICU, this OP had passed on the details of clinical condition of the patient to her over phone; that on the 1st and 2nd day, this OP expected a response with initial treatment, however, the patient subsequently did not respond to the same as his condition started deteriorating and his exact condition was informed and discussed with the complainant periodically till the end; that, in spite of the utmost medical care and continuous treatment, his clinical signs suggested irreversibility on 21.12.2010 and the said situation was immediately informed to the family members and at 6 PM., the patient was declared dead; and that, soon after the request made by the complainant for providing the case sheet, it was this OP who had recommended for immediate issuance of the same and there is no veracity in the claims that only selective papers were provided and that there are contradictory endorsements therein and, in fact, the voluminous documents/case records now filed by the complainant along with the complaint would only falsify her allegations in that regard. By giving further exhaustive details about the stage-by-stage treatment provided to the 10 patient and by specifically stating that the patient could not respond to the best treatment due to seriousness of the disease/liver cancer, the 1st OP sought for dismissal of the complaint by holding it a vexatious litigation, as there is no scope for any medical negligence or service deficiency at all.
3. The 2nd OP/Hospital have filed their individual written version by mainly stating that the Complaint is not maintainable against them; that the 1st OP is an independent consultant, who was personally in charge of the treatment of the complainant's husband; that the said OP filed a separate detailed version and the 2nd OP is adopting the same in respect of the treatment provided to the patient; and that the complaint is frivolous in nature with exaggerated claim based on conjecture and premises and the same is liable to be dismissed as devoid of any merit with exemplary costs.
4. In order to substantiate the case and claim, the parties have filed their respective proof affidavits and, while 11 on the side of the complainant, 5 documents have been marked as Exs.A1 to A5, the OPs have filed 3 documents as Exs.B1 to B3 series.
5. Learned counsel for the complainant, while making his submissions on the basis of the pleadings in the Complaint, primarily pointed out that the complainant's husband, aged about 57, was with normal health and active in business at Salem and submitted that, on 09.12.2010, he came all the way from Salem along with his wife/complainant to consult the 1st OP at the 2nd OP Hospital for a routine check-up. During consultation, the 1st OP had insisted the patient to go for a routine/elective endoscopy procedure by stating that the said procedure was so simple that he would be discharged on the very next day. Believing such statement of the 1st OP, the patient got admitted on 12.12.2010 for the procedure scheduled on 13.12.2010, however, no one informed them about the risk factors involved in the procedure. Prior to the procedure, many blood tests were taken and, in the morning of that 12 day, 3 units of Plasma were administered. When similar procedures previously performed on the patient took a short duration of less than 30 minutes, in the present course, the patient, who was taken to the procedure room at around 11.40 AM. was brought out only at 1.30 pm. and it prompted the complainant to ask the reason for the long time taken by the 1st OP, who stated that there was a dip in the BP level before the procedure however they managed to stabilize it and that is why, it took a long time to complete the procedure. According to the learned counsel, from the said instance, it is apparent that the 1st OP exhibited a hurried approach in proceeding with the endoscopy without even properly checking the vital signs, such as BP; as such, the medical negligence is glaringly present from the inception itself. Similarly, after the procedure, the patient had fever with a temperature of 103 degree and the reason for the sudden onset of fever was not explained to the complainant, either by the OPs or by other Doctors involved in the treatment provided at the 2nd OP. Further, the BP of the patient was not brought to normal till 14.12.2010 and 13 the negligent conduct of the OPs due to lack of proper medical care & attention ultimately led to the patient developing sepsis and, on 15.12.2010, the patient was recorded in the case sheet to be suffering very bad from multi-organ dys-functioning, yet, the complainant was not properly informed about the same and also in the future days about his continuous worsening state. At all times between 12.12.2010 and 21.12.2010, the complainant was given false hopes that her husband would get recovery, obviously with the sole purpose of extracting money from her. Sometime after the death of her husband, she had sought the OPs for supply of the entire case-sheet relating to the treatment; however, certain selective documents were furnished belatedly which conduct exhibits the further negligence and irresponsible conduct of the OPs. The manner of admission at the 2nd OP with an insistence by the 1st OP urging the patient to undergo the endoscopic management, the course of treatment that proceeded in a negligent manner without properly checking the vital parameters like BP and the conduct of the medical team in 14 not informing the complainant about the stage-by-stage developments in the health condition of the patient during the course of his management in the critical care unit would self-speak about the glaring instances of medical negligence as well as service deficiency that would clearly attract the principles of res ipsa loquitur and hence, the relief sought for by the complainant against the OPs deserves all acceptance, learned counsel pleaded ultimately.
6. Countering the above submissions, learned counsel for the OPs, at the first instance, would submit that the husband of the complainant was not a person with normal health as sought to be portrayed by the complainant, rather, at the time of visiting the 2nd OP for consultation with the 1st OP, he was critically ill. Further, the past medical history of the patient would reveal that, due to liver cancer, he was keeping a very low/declining health-profile. While so, very conveniently, the complainant has concealed the said vital aspects and her case is liable to be dismissed for suppression of vital facts and for approaching this Forum 15 with unclean hands and ill-motives for deriving undue gains. It is not as if that the 1st OP had right away advised the patient to undergo any procedure, rather, it was on the OPD basis, necessary tests were taken for blood count, liver function and coagulation time. It was after examining the reports which indicated that the prothrombin time was abnormal and the serum albumin was at a lower level, Esophageal Variceal Ligation (EVL), an endoscopic procedure, was advised for management of the illness with which the patient had come. By way of abundant caution, the patient was advised to get admitted prior to the procedure. He was transfused 3 units of frozen plasma in the morning of 13.12.2010 prior to the procedure, to safeguard against bleedings during or after the procedure. He was also given i.v. Cefotaxime/Antibiotic prior to the procedure as a precaution against infection during/after the procedure. Pre-procedure BP level recorded was within the normal range. Intra operative vitals and "BP recorded - episode of hypotensive with no ECG changes" was noticed, which is an expected occurrence during administration of 16 slow IV Profofol, however, it was managed and the procedure was carried out, after normalizing the BP. The whole procedure was complete in 40 minutes between 12 Noon and 12.40 PM. which is well within the normal time. Learned counsel specifically points out that the pre-procedure BP of the patient in the morning of 13.12.2010 was 110/80 mm/Hg, pre-induction (anesthesia) BP reading was 116/70 mm/Hg and the patient did not have dip in the BP level prior to the procedure. The said facts would go to show that all standard protocols were duly followed and all necessary particulars including the BP were duly noted. Post- procedure, when shivering & hypotension was noticed in the patient at the recovery area, he was managed with IV fluids only and the cause for swooning being Vasovagal/fainting due to neurologic triggers, the allegation of the complainant that the giddiness of the patient was only due to the one day medication of the OPs is a blatant falsehood and, for such an allegation, there is no medical evidence at all. Soon after the patient suffering syncope/temporary loss of consciousness, ECG/Echo were done immediately and it 17 showed no evidence of acute cardiac ailment. Similarly, when the patient developed high fever, while on the one hand cultures were sent for lab report and, simultaneously, appropriate empirical antibiotics were started and the same was duly explained in detail to the relatives of the patient. Thereafter, when the patient started encountering the implications of sepsis which gradually affected the functioning of the vital organs causing the oliguria/low urine output, semi-consciousness, severe back pain, etc., treatment was also provided by various Specialists like the Nephrologist, Hematolgist, Cardiologist, Orthopedist, etc. who closely monitored the patient's condition and managed him. Despite the fact that no stone was left unturned to stabilize the patient, due to the overwhelming implications of the sepsis developed in the patient who was already battling with liver cancer, he ultimately succumbed, by not responding to the best treatment provided at the 2nd OP Hospital. While the actuality remains thus, having made wholly unsustainable allegations, the complainant has not even chosen to examine an expert in the field to substantiate 18 that the treatment given was faulty and that the procedure performed was defective. Similarly, the complainant miserably failed to establish that the patient suffered any injury as a result of the procedure/treatment he underwent at the OPs' Hospital. When the line of treatment given to the patient was on par with the standard medical protocol and, in the absence of any single material even to suggest that the OPs had committed any breach of duty cast upon them while giving treatment, it is clearly apparent that the present instance is a classic example of vexatious litigation and the same is liable to be dismissed by imposing exemplary costs, learned counsel urged vehemently.
7. In the light of the rival submissions advanced on either side and the materials made available before us, the only issue that needs to be answered is - whether the complainant has made out a case of medical negligence against the OPs.
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8. From a perusal of the pleadings in the complaint, we find that the factual sequence is presented in a jumbled manner, however, the core points projected therein to allege service deficiency and medical negligence against the OPs are -
a) the husband of the complainant was a person with normal health;
b) he consulted the 1st OP on 09.12.2010 only for a routine check-up;
c) it was the 1st OP who insisted the
patient to undergo the endoscopic
procedure / Esophageal Variceal
Ligation;
d) the said OP failed to examine the vital parameters particularly BP reading of the patient, before taking up the procedure and the alleged failure indicates a clear medical negligence; 20
e) post-procedure, the patient was not given due medical care and attention at the 2nd OP;
f) the worsening health condition of the patient at the Intensive Care Units was not stage-wise updated to the complainant;
g) throughout, false hopes were given by the OPs that the patient would be stabilized, for the purpose of extracting money from the complainant; and
h) the medical records of the patient were belatedly furnished after the requests of the complainant and only selective papers were given.
The allegations are though multifarious, the core aspects that need to be examined primarily to appreciate the issue of medical negligence/service deficient is -
" whether the patient was health-wise normal at the time of his 21 visit for consultation with the 1 st OP at the 2nd OP on 09.12.2010 and whether the said visit was for a routine medical check-up, as claimed by the complainant."
On a careful perusal of the documents, we find that the OPs, apart from the medical records pertaining to the present spell of treatment provided by them, have also filed the clinical papers in respect of the previous treatments availed by the patient at the 2nd OP/Hospital, more than one decade ago. One of the case sheets, dated 27.01.2000, that forms part of Ex.B3 series, reveals that the husband of the complainant, aged 46 then, had visited the 2 nd OP/Hospital for treatment from one Dr.Mathew Samuel, K. and the diagnosis details show that, at that point of time, he was suffering from Diabetes Mellitus, Obesity and Acute Anterior Wall Non-Q MI (Myocardial infarction) with elevated cardiac enzymes/Trop T Positive, which means, he suffered a heart attack recently then. It is useful to reproduce the relevant text from the clinical notings recorded by the Department of 22 Cardiology & Cardiovascular & Thoracic Surgery at the 2 nd OP:-
"Mr.Jaya Kumar, 46 years old male patient a known diabetic (on diet control) had developed repeated episodes of pain radiating to the left arm on the right (sic. for night) of 18.1.2000 with vomiting and sweating. He was diagnosed to have a non Q AWMI with elevated cardiac enzymes (Trop T Positive).
Echocardiography had revealed hypokinesia of IVS and anterior wall and normal LV function with trivial AR. (EF = 63.59%). He was stabilized and discharged and has been referred here for CABG.
Routine biochemical and hematological examination done prior to CAG were within normal 23 limits. The patient was posted for CAG on 1.2.2000, which revealed 2 vessel disease. Adhoc PTCA to LAD and OM were done successfully.
......."
The above medical notes show that, way back in 2000 itself, the patient was a Diabetic and he had visited the Cardiologist at the 2nd OP where he was admitted/treated over the diagnosis of HYPOKINESIA- meaning, reduced movement or contraction of a segment of the heart muscle - of inter-ventricular septum, for which, he was successfully performed PTCA to LAD (percutaneous transluminal coronary angioplasty (PTCA) of left anterior descending artery (LAD) & OM (the 1st obtuse marginal artery).
While so, he was again admitted on 29.10.2007 in the 2nd OP Hospital as in-patient and he was given treatment till 30.10.2007 and the Discharge Summary, dated 24 30.10.2007 in Ex.B3 Series shows that he was performed angiography and, since the diagnosis revealed 'congestive gastropathy with esophageal varices and raised liver transminases - chronic liver disease with portal hypertension', he was advised for follow-up by confirming appointment date two weeks prior to April, 2008.
One another document in Ex.B3 series, in the form of Radiology Report, dated 21.11.2007, shows that the patient had consulted this time the 1st OP, at whose reference, he underwent the lab test and the report suggested Cirrhotic liver (permanently damaged liver) with features of portal hypertension.
Thereafter, he visited the 1st OP in 2008 and, from the Gastroscopy Report, dated 14.02.2008, of the 1st OP in Ex.A3, it is seen that Esophageal varices of Grade-II - III were seen in 3 columns and also monilial infection in lower esophagus as well as congestive changes in the stomach, for 25 which, the 1st OP had treated him as could be evident from the prescription, dated 15.02.2008, in the same Exhibit.
It seems, thereafter, he did not visit the OPs for any follow-up after February, 2008. The patient had the complaints of brownish black vomiting on 17.06.2010 and black colored stools since 18.06.2010, for which, he got admitted in the 2nd OP on 21.06.2010 for treatment from the 1st OP and the Discharge Summary, dated 28.06.2010, shows that he was treated by the said OP between 21.06.2010 and 28.06.2010. The following details from the Discharge Summary, signed by the 1st OP and another, at Ex.B1 series are relevant to be reproduced below:-
" History of Present Illness Chief Complaints: Patient is a known case of cirrhosis of liver with PHT with esophageal varices. Complaints of brownish black vomiting I episode on Thursday (17.06.2010) 26 Complaints of black coloured stools since Friday 18.06.2010. ...... altered consciousness. Course In The Hospital & Discussion This patient known to have cirrhosis with portal hypertension, presented with melena for 10 days. Clinical examination revealed pallor.
Lab evaluation showed anemia and hypoalbuminemia, PT/INR-1.3. Ultrasound confirmed cirrhosis with portal hypertension. OGD showed large esophageal varices with RCS, 2 antral polyp and severe PHG. The esophageal varices were banded in the same setting and mild ooze controlled with additional band. ......."27
Thereafter, within a couple of months, he was again admitted in the 2nd OP on 18.08.2010 for the following complaints, as could be seen from the Discharge Summary, dated 27.08.2010, that forms part of Ex.B1 series.
"History of Present Illness Chief Complaints: This 57 year old male Mr. Jayakumar. R, a known case of cirrhosis of liver with portal hypertension with portal hypertension gastropathy with varices presented with complaints of coffee ground coloured stools since last evening about 2 - 3 times. Vomiting of fresh blood 2 -3 times about 50 ml once and once ~ 30 ml since last evening. ..."
This time also, he was treated by the 1 st OP, who had done endoscopy to deploy bandings for the esophageal varices/abnormally dilated veins and the treatment course as entered in the said summary is quoted below:- 28
" Course In the Hospital & Discussion Mr.Jaykumar. R, 57 year old male patient known case of Decompensated chronic liver disease (Cryptogenic) with Ischaemic heart disease with Type II Diabetes Mellitus presented with history of haemetemesis and malena. On examination, he was pale, hypotension with hepatomegaly. He was stabilized with IV fluids, PRC and FFP transfusion, PPI and Terlipressin. OGD showed four columns of large oesophageal varices with altered blood in fundus with severe portal hypertension changes in body and 29 antrum, Speed banding was done and deployed 5 bands. "
It is seen from Ex.B2 Series that, once again, he was admitted on 19.09.2010 and the diagnosis revealed large esophageal varices for which banding was done by the 1 st OP. Again on 31.10.2010, he was admitted for esophageal variceal ligation/banding.
The above details available in the medical records would go to show that
a) the patient, who already had cardiac problems and Diabetes in 2000, had suffered serious health complications from 2007 onwards as he repeatedly fell ill at intervals due to oozing varices and decompensated chronic liver disease in the form of blood vomiting and passing black stools;
b) he frequently underwent the endoscopic procedure at the hands 30 of the 1st OP to band/ligate the esophageal varices, which are enlarged veins on the lining of the esophagus and the same can be life-
threatening if they break open;
c) it is obvious that the patient himself was well aware of the pros and cons of the procedure as he repeatedly underwent the same at the hands of the 1st OP;
d) in the given set of facts, as unfurled by the clinical papers, the genesis of the complainant's claim that her husband was keeping a normal health and that he visited the 1st OP on 09.12.2010 only for a routine medical check-up is nothing but a blatant falsehood.
Now, we are told that, before the patient had visited the 1st OP on 09.12.2010, he was referred to Dr.Mohammed Rela, a 31 renowned Transplant Surgeon, who was then at Global Hospital, Chennai, since the CT Scan showed a Space- occupying lesion that was diagnosed as hepatoma/Cancer in the Liver and the said Surgeon had opined that the median life span of the average individual with a liver cancer in the background of underlying decompensated chronic liver disease is around 6 to 12 months. Further, the patient was advised trans-arterial chemo embolization procedure as a bridge therapy by Dr.Rela for the hepatoma to shrink the size of the tumor and the patient had also undergone the said procedure at Global Hospital, Chennai. As such, both the patient and the complainant knew very well that that the former's life expectancy drops to 6 months once hepatoma develops on a cirrhotic liver.
Thus, in the light of the details unfurled from the voluminous set of documents, the claim of the complainant that her husband had visited the 2nd OP for a routine medical check-up with the 1st OP is a completely misleading one which only shows her mala fide conduct in purposely suppressing the previous medical history of the patient. 32
Coming to the present spell of treatment, on 09.12.2010, when the patient had consulted the 1st OP, he had the active liver disease as the prothrombin time was abnormal and serum albumin was at a lower level. In such circumstances, as he had undergone multiple episodes of endoscopy for banding, the present situation also warranted endoscopic variceal ligation for which purpose only, he seemed to have approached the 1st OP. On the face of it, the allegations that the 1st OP had insisted the patient for undergoing the endoscopic management and the patient was not apprised of the details of the procedure seem to be highly illusory. Further, this time, despite the banding/ligation done to obliterate the esophageal varices, subsequent to the procedure, the patient developed other complications in the form of fever, giddiness and low urine output due to sepsis. It is common knowledge that serious liver diseases such as cirrhosis of the liver and liver cancer would in course of time increase the risk of developing sepsis, often called blood-poisoning and it is also said to be the body's life-threatening response to infection. In the case 33 of the complainant's husband also, after the banding, due to the onset of sepsis, his vital organs started losing the functional capacity and it is axiomatic, in that challenging situation, any best treatment would hardly benefit the patient. From a careful perusal of the treatment notes, we find that the allegations of the complainant by referring to the BP reading and certain pointless contradictions in the medical records are only self-serving in nature. From the pleadings of the complainant herself and the medical records, we find that, before doing the procedure, all precautionary measures were taken in the form of transfusing frozen plasma, antibiotics and checking the vital parameters like BP which was normal pre-procedure, however, it was only during the course of the procedure and not pre-procedure as claimed by the complainant, there was a dip in the BP reading which was stabilized immediately. When the complainant does not find fault with the procedure to deploy bandings for the esophageal varices and has not pleaded about any specific negligence about the manner in which the procedure was done, merely on the 34 basis of her self-serving allegation about the BP reading, no adverse inference can be drawn against the OPs. Having pleaded at para No.2 of the complaint that BP of the patient was checked before the procedure on 13.12.2010, if she is so assertive that it was otherwise, nothing prevented her from adducing the expert opinion to substantiate her claim that the stage-by-stage deterioration in the health condition of her husband due to high fever followed by oliguria, back- pain and sepsis, resulted only due to alleged negligence on the part of the 1st OP to properly check the BP level having regard to the medical notes of the patient which only supports the version of the OPs that his BP was checked before the procedure and during the procedure only, the patient encountered a dip in the BP which was stabilized and post-procedure also, the BP reading was monitored. It must be adverted to here that fluctuation in BP readings, sudden eruption of high fever, reduced kidney functioning followed by sepsis being expected complications in a critically ill-patient with cirrhotic liver/cancer, the complainant cannot so easily magnify a case of medical 35 negligence merely based on her self-serving allegations in respect of the BP reading. From the pleadings, we further find that, after the shifting of the patient to the ICU, the complainant was not by the side of her husband always; as such, depending upon the condition of the patient, inputs were given to the available relatives there and it is the emphatic claim of the 1st OP that he too was personally making phone calls to the complainant updating her with the developments that were taking place. Hence, we do not find any credibility in her contrary claims on this aspect. In other aspects, the pleadings are only talkative and too vague to infer any sort of medical negligence so as to connect it anyway with the death of the patient. On the contrary, the medical records show that, at every stage, due clinical care & attention was given to the patient throughout, right from the time of admission till the patient breathed his last. One can appreciate a claim where the treatment given to a positively revivable patient failed due to glaring medical negligence arising from professional incompetence, but, here is a case where the 1st OP is seemed to have exerted all his 36 professional skills to somehow stabilize the patient but could not succeed as no one can prevent what is destined to befall on a patient who is, already a heart-patient with diabetes, battling for life due to the end-stage liver disease. The very fact that the patient repeatedly consulted the 1 st OP for treatment and ultimately came only to him with critical liver disease speaks otherwise that he had great confidence in the said Doctor, who also, as already observed by us, had put all his efforts to somehow stabilize him. That being so, while coming up with the allegation of medical negligence, which is really a serious issue, it is for the complainant to plead it properly and prove the same through tangible materials and by way of adducing expert evidence. An empty allegation, however serious it may be, will not make a case of negligence unless it is proved by tangible evidence and substantiated by expert opinion. In this case, except by making a long line of self-serving allegations that the patient, who came for a routine medical check-up, was insisted by the 1st OP to undergo the endoscopic procedure, that the BP of the patient was not checked by him before the 37 procedure, that the patient was left alone to walk to the toilet soon after the procedure and that she was not given stage-by-stage treatment updates, the complainant attempts to build up a case of medical negligence by conveniently suppressing the previous medical history of the patient that he had been battling for years together with serious liver disease, heart disease, diabetes, etc., as such, she is guilty of suppression of material facts and undoubtedly, she has come to this Commission with unclean hands. In very clear terms, the Apex Court, in Jacob Mathew vs. State of Punjab and another (2005-6-SCC-1) ruled thus -
" .... a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be 38 applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession."
It is also relevant to refer to the following conclusion summed up by the Apex Court in the decision cited supra :-
"(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided 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 definition of negligence as
given in Law of Torts, Ratanlal &
Dhirajlal (edited by Justice G.P.
39
Singh), referred to hereinabove,
holds good. Negligence becomes
actionable on account of injury
resulting from the act or omission
amounting to negligence
attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'."
(emphasis supplied) While so, in the case on hand, there is nothing on record even to infer any breach of duty on the part of the OPs and hence, there is no scope for any resulting damage which is very much essential to consider grant of any relief in favour of the complainant.
Her other allegation that she was belatedly furnished with the case sheets is also untenable for the simple reason that she has not even mentioned in her pleadings about the date on which she had made the actual request in that regard. Similarly, one more allegation that only selective 40 documents were furnished is also a falsity on the face of the voluminous set of documents filed by her that has all relevant details about the ailments and the course of treatment. We find all other allegations as listed by her in the pleadings as contradictions to be immaterial even for supposing any negligence against the OPs. May be, due to the death of her husband, the complainant might have been under the pangs of emotional pain, but, merely because the patient did not respond to the treatment, simply by acting upon the presumptive claims and baseless allegations of the grieving complainant, a prudent medical professional cannot be found fault with. The framework of the CP Act is basically and essentially designed to give just and proper remedy to bona fide complainants for their genuine grievances arising from the demonstrable deficiency / lapses / shortcomings on the part of the Opposite Party/parties concerned. But, wherever it is found that a complainant has launched the litigation with unclean hands or ulterior motives or to derive undue gains from the OP on the basis of purely presumptive allegations as in the present 41 case, not a miniscule relief can be granted against the medical professional, who is found to have exercised a reasonable degree of care, particularly when none of the core allegations has been substantiated through the expert opinion/evidence. Rather in resounding terms, the Apex Court ruled in Kusum Sharma vs. Batra Hospital (2010- 3-SCC-480) that the CP Act should not be a halter round the neck of the Doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death and that courts have to be extremely careful to ensure that unnecessarily, professionals are not harassed, else, they will not be able to carry out their professional duties without fear and that it is a matter of common knowledge that, after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. In the said decision, the Apex Court, after exhaustively discussing the development of the law in major cases of medical negligence in India and 42 other countries, especially United Kingdom, formulated a 11-number principles for the Courts to keep in mind while dealing with cases of medical negligence and it would be apt to reproduce below those points evolved by the Apex Court as well as the ultimate observation made therein:-
" While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
" I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided 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.
43 II) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III) The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.44
IV) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he 45 honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other 46 one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII) It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional 47 duties without fear and apprehension.
X) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals / hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI) The medical professionals are entitled to get protection so long as they 48 perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence.
As long as the doctors have performed their duties and exercised an ordinary degree of
professional skill and competence, they cannot be held guilty of 49 medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind."
By contrasting the present case in the light of the aforesaid principles highlighted by the Apex Court, we are of the considered view that the present case stems clearly from an error of judgment on the part of the complainant in regard to the complex medical process undertaken by the OPs about which she does not possess sufficient knowledge nor her allegations against the OPs are supported by any expert opinion; as such, her claim is rendered wholly unjust and hence, the same is outrightly rejected. This is a case where, in fact, the principles of res ipsa loquitur (the things speaks for itself) only run in reverse against the case of the complainant and, in the given factual scenario, although we thought of imposing costs upon the complainant for filing this vexatious litigation, we refrain from doing so, due to our sympathy for her as she had lost her beloved husband and might be under the grip of emotional stress. 50
9. In the result, the complaint fails and it is dismissed as devoid of any merit. No costs.
R VENKATESAPERUMAL R.SUBBIAH, J. MEMBER PRESIDENT.
LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT Sl.No. Date Description of Documents Ex.A1 22.12.2010 Copy of Hospital Case Sheets issued by the opposite parties 1 & 2 Ex.A2 28.02.2011 Copy of legal notice issued by the complainant's Counsel to opposite parties Ex.A3 03.03.2011 Copy of proof of delivery of legal notice with respect to the 1st opposite party Ex.A4 14.03.2011 Copy of Interim reply issued by the 1 st opposite party's Counsel to complainant's Counsel Ex.A5 07.04.2011 Copy of reply issued by the 1 st opposite party's Counsel to complainant's Counsel LIST OF DOCUMENTS MARKED ON THE SIDE OF THE Ops Sl.No. Date Description of Documents Ex.B1 21.06.2010 Copy of Admission Slip (Series) Volume- I (1) (2) 21.06.2010 Copy of Admission Form (3) 18.08.2010 Copy of Initial Patient Assessment Record (4) -- Copy of Case Sheet 51 (5) -- Copy of Progress Report (6) -- Copy of IP Consultation Request (7) -- Copy of Department of Anesthesiology (8) -- Copy of Doctor Instruction Sheet (9) -- Copy of OP-Follow UP Sheet (10) -- Copy of Drug & Diet Chart (11) ---- Copy of Clinical Chart (12) -- Copy of Nursing Admission Assessment (13) -- Copy of Nursing Fall Risk Assessment Form (14) -- Copy of Nurses Chart (15) -- Copy of Intake / Output Record (16) -- Copy of Diabetic Chart (17) -- Copy of Flow Chart (18) -- Copy of CCU Master Chart (19) 18.08.2010 Copy of Admission Check List (20) 18.08.2010 Copy of Care team Rounds (21) -- Copy of General Consent (22) -- Copy of Consent for Anesthesia (23) -- Copy of Consent for procedures Under Local Analgesia (24) -- Copy of special consent for Management at Critical Care Unit (25) -- Copy of Consent form for Transfusion of Blood / Blood components (26) -- Copy of Consent for Transportation of Critically Ill Patients for Investigations (27) -- Copy of Consent for Upper GI Endoscopy (28) -- Copy of Investigation Chart (29) -- Copy of continuous Intra Venous Inelision Order 52 (30) -- Copy of Blood and Blood Product Transfusion Record (31) -- Copy of Transfer Information Sheet (32) -- Copy of Pressure Ulcer Risk Assessment Staging and Treatment chart (33) -- Copy of Department of Dietetics (34) -- Copy of Subjective Global Assessment (Adults) (35) -- Copy of GI Bleed Pathway (36) -- Copy of Radiology & Imaging Sciences (37) -- Copy of Time Out Checklist (38) -- Copy of Investigation Report (39) -- Copy of Discharge Summary Copy Ex.B2 19.09.2010 Copy of Admission Slip (Series) Volume
- II (1) (2) 19.09.2010 Copy of Admission Form (3) -- Copy of Admission Check List (4) -- Copy of general Consent (5) -- Copy of Consent for Anesthesia (6) -- Copy of Consent form for Transfusion of Blood / Blood components (7) -- Copy of Consent for Upper GI Endoscopy (8) -- Copy of Department of Nephrology (9) -- Copy of OP-Follow Up Sheet (10) -- Copy of Case Sheet (11) -- Copy of Progress Report (12) -- Copy of IP Consultation Report (13) -- Copy of Department of Anesthesiology (14) -- Copy of Doctor Instruction Sheet 53 (15) -- Copy of Drug & Diet Chart (16) -- Copy of Clinical chart (17) -- Copy of Nursing Admission Assessment (18) -- Copy of Nursing fall risk Assessment Form (19) -- Copy of Nurses Chart (20) -- Copy of Intake / Output Record (21) -- Copy of Diabetic Chart (22) -- Copy of Admission Check List (23) -- Copy of Care Team Rounds (24) -- Copy of General Consent (25) -- Copy of Consent for Anaesthesia (26) -- Copy of Consent form for Tansfusion of Blood / Blood Components (27) -- Copy of Consent for Upper GI Endoscopy (28) -- Copy of Blood and Blood product transfusion record (29) -- Copy of Time out checklist (30) -- Copy of Department of Dietetics (31) -- Copy of Subjective Global Assessment (Adults) (32) -- Copy of GI Endoscopy Recover Chart (33) -- Copy of IP Consultation Request (34) -- Copy of Doctor Instruction Sheet (35) -- Copy of Intake / Output Record (36) -- Copy of Diabetic Chart (37) -- Copy of Care Team Rounds (38) -- Copy of Glendoscopy Recovery Chart (39) -- Copy of Blood and Blood product transfusion Record (40) -- Copy of Investigation Chart 54 (41) -- Copy of Department of dietetics (42) -- Copy of Subjective Global Assessment (adults) (43) -- Copy of Tome out checklist (44) -- Copy of Investigation Report (45) -- Copy of Advice on discharge (46) -- Copy of Discharge Summary Ex.B3 27.01.2000 Copy of Patient Registration Record (Series) Volume-
III & IV (1) (2) 27.01.2000 Copy of Admission Slip (3) 27.01.2000 Copy of Admission Form (4) -- Copy of Admission Check List (5) -- Copy of OP-Follow Up Sheet (6) -- Copy of Nurses Chart (7) -- Copy of I.V. Fluid Chart (8) -- Copy of Drug Chart (9) -- Copy of Drug & Diet Chart (10) -- Copy of Doctor Instruction Sheet (11) -- Copy of Clinical Chart (12) -- Copy of Nursing Admission Assessment (13) -- Copy of Nursing Fall Risk Assessment Form (14) -- Copy of Diabetic Chart (15) -- Copy of Intake / Output Record (16) -- Copy of Flow chart (17) -- Copy of Care Team Rounds (18) -- Copy of Continuous Intra venous Infusion Order (19) -- Copy of Consent Form for Transfusion 55 of Blood / Blood Components (20) -- Copy of General Consent (21) -- Copy of Consent for Upper GIndoscopy (22) -- Copy of Department for Anaesthesia (23) -- Copy of Department of Diabetics (24) -- Copy of Subjective Global Assessment (Adults) (25) -- Copy of Investigation Chart (26) -- Copy of Blood and Blood Product Transfusion Record (27) -- Copy of Case Sheet (28) -- Copy of Department of Cardiology and
Cardiovascular & Thoracic Surgery (29) -- Copy of Consultation Request (30) -- Copy of Progress Report (31) -- Copy of ICU-CCU (32) -- Copy of Diagnosis & Recommendations (33) -- Copy of Diabetic Chart (34) -- Copy of Care Team Rounds (35) -- Copy of General Consent (36) -- Copy of consent for HIV Testing (37) -- Copy of Consent for Angiography (38) -- Copy of Consent for Treadmill Test (39) -- Copy of Dept. of Health Check (40) -- Copy of Investigation Reports (41) -- Copy of Time Out Checklist (42) -- Copy of Discharge Summary Volume 12.12.2010 Copy of Admission Slip
-V (1) (2) 12.12.2010 Copy of Admission Form (3) 12.12.2010 Copy of Case Sheet (4) -- Copy of Progress Report 56 (5) -- Copy of IP Consultation Request (6) -- Copy of Doctor Instruction Sheet (7) -- Copy of Department of Anesthesiology (8) -- Copy of Drug & Diet Chart (9) -- Copy of Clinical Chart (10) -- Copy of Nursing Admission Assessment (11) -- Copy of Nursing Fall Risk Assessment Form (12) -- Copy of Nurses Chart (13) -- Copy of Intake /Output Record (14) -- Copy of Diabetic Chart (15) -- Copy of CCU Master Chart (16) -- Copy of Admission Check List (17) -- Copy of Care Team Rounds (18) -- Copy of Physiotherapy Assessment (19) -- Copy of General Consent (20) -- Copy of Consent for Anaesthesia (21) -- Copy of Consent for Procedure Under Local Analgesia (22) -- Copy of Consent from for Transfusion of Blood / Blood Components (23) -- Copy of Special Consent for Management at Critical Care Unit (24) -- Copy of Consent for Upper Glendoscopy (25) -- Copy of Investigation Chart (26) -- Copy of Continuous Intravenous Infusion Order (27) -- Copy of Time Out Checklist (28) -- Copy of Blood and Blood Product Transfusion Record (29) -- Copy of Physical Restraint Form (30) -- Copy of Pressure Ulcer Risk Assessment 57 Staging and Treatment Chart (31) -- Copy of Position Chart (32) -- Copy of GI Endoscopy Recovery Chart (33) -- Copy of Patients Information (34) -- Copy of Department of Dietetics (35) -- Copy of Subjective Global Assessment (Adults) (36) -- Copy of Nephrology (37) -- Copy of Death Summary (38) -- Copy of Death Certificate (39) -- Copy of Death Report issued by Chennai Corporation (40) -- Copy of letters from Ms. Neela Jayakumar R.VENKATESAPERUMAL R.SUBBIAH, J.
MEMBER PRESIDENT.
ISM/TNSCDRC/Chennai/Orders/MAY/2023.