National Consumer Disputes Redressal
B.N. Gurudev (Dr.) vs N. Ramanna (Dr.) And Ors. on 3 October, 2007
Equivalent citations: I(2008)CPJ84(NC)
ORDER
P.D. Shenoy, Member
1. This is a peculiar case wherein a Veterinary Surgeon has alleged medical negligence against a Consultant Orthopaedic Surgeon and others apart from the Chief Executive Officer of the Hospital.
Case of the appellant:
2. The case of the appellant is that he met with an accident on 13th April, 1992 at 5.00 p.m. while riding a motor bicycle from Hubli to Haveri and sustained serious injuries resulting in fracture of the right leg. He went in an auto rickshaw to KMC Hospital, Hubli and got admitted in that hospital in the casualty ward and later on as an inpatient. A team of doctors conducted an emergency surgery on 14th April, 1992 and the doctors expressed a view that there was vascular insufficiency and hence advised the complainant to consult a Vascular Surgeon at Manipal Hospital, (hereinafter referred to as the hospital), Bangalore. He boarded a train on the same day at 8.30 p.m. and arrived at Bangalore on 15th April, 1992 and was transported from the railway station to the Manipal Hospital by an ambulance provided by the Hospital. He was taken to the casualty, wherein history of the case was recorded and later on he was referred to an Orthopaedic Surgeon and a Cardio-thoracic Surgeon. After several tests, Dr. N. Ramanna, Consultant Orthopaedic Surgeon of the hospital conducted the surgery without obtaining his consent, though he was fully conscious. After recovery from anaesthesia on 16th April, 1992 the appellant was shocked to see that his right leg was amputated. He was treated carelessly without conducting the scientific tests and without taking the second opinion. He claimed a sum of Rs. 20 lakh towards pecuniary and non-pecuniary damages and mental agony etc. Case of the Respondent:
3. Dr. Ramanna OP No. 1-Orthopaedic Surgeon has submitted his written version, which was adopted by Dr. Mohana Krishna and the authorities of the hospital. Dr. Ramanna has stated that as the complainant could not get compensation for his injuries under the provisions of Motor Vehicles Act, he has chosen the State Commission for obtaining compensation with an ulterior motive. He has stated that the doctors at the hospital after having a thorough discussion, decided to amputate the right leg of the complainant after obtaining the consent, if that was not done, the chances of complainant's survival would have been low. After amputation was done, various mandatory concessions were given to the complainant. OP No. 2- Dr. Shekhar Rao who is a qualified Cardio-thoracic and Vascular Surgeon has filed a separate statement. He submitted that as per the authoritative textbooks on Vascular Surgery, popliteal artery injury of the nature sustained by the appellant results in amputation more often than any other arterial injury. It has been scientifically established that beyond a period of 24 hours, after the initial injury, the possibility of salvaging a limb is only 20%. In fact, particularly in cases of knee dislocations, the amputation rate is as high as 86% unless the limb is revascularised within 8 hours of the injury, in case of extensive muscular necrosis urgent or immediate amputation is invariably recommended to avoid any risk of renal failure owing to circulating myoglobin released from necrotic muscles. If loss of sensation extends to the knee, extensive ischaemia of the underlying muscle groups results and an above the knee amputation is proceeded with on an emergent basis to avoid morbidity. It is against the above medicosurgical background that the complainant's injury and the prescribed surgical treatment must be examined and understood.?
Order of the State Commission:
4. The State Commission after going through the records of the case, evidence adduced by both the parties and hearing the learned Counsel for both the parties arrived at a decision that the complainant had failed to prove that there was negligence on the part of the opposite parties in discharging their duties and accordingly, the complaint was dismissed.
5. Aggrieved by the order of the State Commission, the complainant has filed this appeal.
Submissions of the learned Counsel for the appellant:
Even though the hospital does not have a Vascular Surgeon, they have decided to admit the case and conduct the surgery.
They have not conducted Angiography or Arteriogram test. Dr. Shekar Rao is a Cardio-thoracic Vascular Surgeon and not a specialist Vascular Surgeon.
Discharge certificate of KMC Hospital, Hubli shows that the patient was discharged at request as the attendant wanted to take the patient to Bangalore for consultation with a Vascular Surgeon.
Dr Shekar Rao was only 33 years of age and how can such a junior doctor give advice for amputation.
Arteriogram was taken at 2.15 p.m. and amputation was performed at 10.00 p.m.
6. The learned Counsel for the appellant also submitted that there are several inconsistencies in the evidence of the doctors. He quoted some examples from the cross-examination of Dr. Ramanna.
Question: Whether there is anything like 'Posterior Condyle'?
Answer: In anatomy there is no description of Posterior Condyle. While reading the x-ray in the lateral view, when the fracture is seen in the posterior aspect of the femur, we say that there is a fracture on the posterior condyle. Because, we are not able to identify whether it is medial or lateral condyle in the lateral view.
In medical jurisprudence, the expression 'Posterior condyle" is not available. In Human Anatomy, there is no part called Posterior Condyle.
7. Learned Counsel submitted that as such a word is not human anatomy and this part pertains to some strange animal and not of any human being.
Dr. Ramanna in his cross-examination has further stated as follows:
I have personally examined the complainant. On 15th April, 1992 at 10.00 a.m., I have examined him in X-ray department. I made clinical examination. My findings with reference to the clinical examination made by me are the same as the one given by my Assistant. However, I have not made any separate entry regarding my findings in relation to my clinical examination. Hence, the findings recorded by the Assistant are not invalid.
I would add (voluntarily) that I personally requested the vascular surgeon on the phone to come and see the complainant, in between the two of his operations relating to some other persons....
"Dr. Shekar Rao was the Vascular Surgeon to whom the complainant was referred. There is no such entry in the hospital records, which would show that I have referred the complainant." "In the present case we have not obtained an informed consent either from the complainant or from his wife for amputation. I agree to the suggestion, that it is 'imperative' for the doctor to give reasonable information to obtain 'informed consent', regarding the diagnosis, the nature of treatment or procedural risk involved, prospects of success, prognosis and alternative methods of treatment".
Further he went on to quote:
Question: Have you mentioned that gangrene has set in and therefore amputation is necessary?
Answer: The word 'gangrene' is not specifically mentioned, but the alternative, 'limb non-viable' means the same.
Question: What is the basis for you to say that the expression 'non-viable' is equivalent to gangrene?
Answer: By medical training. The authority for this can be referred to any medical text books.
8. He further stated in his cross-examination that "since the time of admission till about 6.00 p.m. his general condition was satisfactory, though the limb was very cold, no pulsations and no movement of the toes, he was conscious and alert, at that time. We know that the complainant was a veterinary doctor. It is false to say that the complainant was in a position to give his written consent, but we deliberately did not take his consent".
Amputation is irreversible operation. I was also aware that the problem of the complainant was, vascular problem. No, I did not think about taking a second opinion from outside doctor.
An urgent operation had to be done, since the condition of the complainant was bad, I thought it was not necessary to obtain an informed consent. Wife of the complainant was present throughout. I called the wife of the complainant into the operation theatre and told her about the need for amputation and at that time, she swooned and her pulse rate came down and she had been put in separate room for treatment and, therefore, we could not get her consent. These things have not been mentioned in our records.
The observations made in Ex. C4 by Dr. Shekar Rao is one of the circumstances prompted us for amputation. The blood report at Ex. C 6 is supported for amputation. My examination and examination made by my team also prompted us for amputation. There was no Neurosurgeon in the said team. I have not taken any opinion of any Neurosurgeon.
The learned Counsel submitted that if the patient was conscious till 6.00 p.m. why his consent was not obtained. Learned Counsel for the appellant quoted certain extracts from the cross-examination of Dr. Shekar Rao alleging that there are inconsistencies:
I have registered as a Cardiovascular Thoracic Surgeon. I have not registered as Vascular Surgeon. I have made exclusive studies of Vascular Surgery, both in M S and M Ch Cardiovascular Thoracic Surgery. There are (Surgeons in) peripheral Vascular Surgery. (Witness volunteers: This is a designation, which they adopt themselves, so that, the people may know about their area of work and interest). It is not true to suggest that it is only the doctors who have done their M Ch exclusively, in Vascular Surgery, who are called peripheral Vascular Surgeons.
Question: Can a peripheral Vascular Surgeon deal with Cardiovascular Problem?
Answer: No.
9. On the basis of his experience he said "a peripheral Vascular Surgeon can deal with all problems relating to blood vessels. As a Cardiovascular Surgeon, on the other hand deals with heart, (heart) blood vessels, lungs, esophagus, chest etc. I agree with the suggestions that, peripheral vascular Surgeon deals with diseases of artery not involving the heart".
I do not agree with the suggestions that a Cardiovascular Thoracic Surgeon is, a physician, who is specially trained only in heart and heart blood vessel surgery" (witness volunteers: I do not agree with the suggestions, that I am not a peripheral vascular surgeon. I do not agree with the suggestion, that I do not possess the requisite qualification to be the peripheral vascular surgeon. It may be that Madras Medical College and Research Institute, offers a course exclusively in M Ch Vascular Surgery.) Question: There was a specific request to examine dorsalis pedis and posterior tibial arteries of the right lower limb of the complainant. What are your findings in respect of these arteries and where have you recorded your findings in respect of these two arteries?
Answer: I have not been asked to examine only dorsalis pedis and posterior tibialis arteries only. As I have mentioned earlier, they are the two farther most arteries, near the ankle joint. It has been clearly recorded that these pulsations are absent.
Witness adds: We have also conducted all the tests, in addition to tests already undergone by the patient. The most specific test is, conducted on this patient on 15.4.1992, was the 'Arteriogram', which clearly gave the information about the status of the vascular tree. The test was conducted at 5.00 p.m. on 15.4.1992 by Dr. V. Subhaschandra of the Cardiology Department. The Cardio Thoracic Department referred this matter to Dr. Subhaschandra. (witness adds: Sometimes reference is made over phone).
Submissions of the learned Counsel for Dr. Shekar Rao:
10. Learned Counsel submitted that no independent medical expert has been examined by the complainant nor has he submitted any extract from the medical literature. The patient was brought to the hospital 52 hours after the injury. He should have been brought within six to eight hours after the injury so as to save the leg of the patient. To support his contention he quoted extensively from Robert B Rutherford, M D, text book on Vascular Surgery (Third Edition)(Standard Reference Manual).
11. The angiogram performed on the complainant's leg, is the most important, definitive, scientific test, for the type of injury, sustained by the complainant, even so, in a situation where, one operation had already been performed at Hubli.
Dr. Rao's examination of the complainant's right leg at the time of surgery, revealed that:
(a) there was extensive injury to the far (distal) popliteal artery, precluding any kind of repair;
(b) there was extensive death (necrosis) of the calf muscles, as could be clearly judged, by appearance, feel and the total absence of any bleeding from the cut surfaces, and;
(c) all the veins in the leg, were extensively filled by blood clot, indicating, the total absence of circulation for a prolonged period of time.
12. The learned Counsel further submitted that on the basis of his earlier physical examination of the complainant's right leg, the findings whereof, were confirmed by the angiography and the surgical examination aforesaid, it was the considered medical opinion of Dr. Rao that, the complainant's right leg, was non-viable and beyond possible salvage. This opinion was endorsed and confirmed by the other members of the surgical team, who were present lift the operation theatre.
13. He quoted from the treatment records of the Manipal Hospital and stressed that the patient was brought for Cardiovascular Thoracic Surgical Consultation to Dr. Rao. Patient's right leg was cold, swollen, pulse less and devoid of sensation or movement below the knee. Vascular reconstruction was not possible. Distal limb below knee appears nonviable. Amputation was advised by him in consultation with Dr. Ramanna and Dr. Ashok Cherian.
He referred to the discharge certificate of Manipal Hospital, Bangalore:
Physical Findings of Examination:
CVS., RSP/A--Normal
1. Punctured wound 1 cm over the anterior aspect of (R) Knee
2. Contused skin 10 cm x 5 cm over the antero-medial aspect of ( R) Knee.
3. Tenderness over the medial condyle (R)--Femur signs of fracture present.
4. Sutured wound along the popliteal and posteromedial aspect of (R) knee.
5. Clincially bimalleolar fracture (R) Ankle.
6. Dorsalis Pedis and Posterior tibial arteries--not felt; no capillary return.
7. All modalities of sensation--lost, cold.
8. No active movements of the toes. Therapeutic Proceedings:
Arteriography-done--report enclosed.
Reference to Cardio Thoracic Department. Physiotherapy and Ophthalmology, Cardiology.
Course of Treatment in the Hospital:
14. The patient was referred from K M C Hospital, Hubli. On examination, the limb was cold and clammy--a reference was made to the Cardio Thoracic Department. At Hubli the vascular insufficiency was noticed and attempts to restore circulation with embolectomy. The Manipal team attempted to restore circulation. An amputation (above-knee) was advised and after appraising the patient's wife and brother-in-law, and above knee amputation performed on 15.4.1992. On 18.4.1992, the wound was inspected under G A and the drains. A revision amputation was done on 27.4.1992. A swab sent for culture and sensitivity--revealed--no growth. The patient was on antibiotics (Sporidex 500 mg 1-1-1) till 9.5.1992. Blood was transfused, sutures removed on 11.5.1992. Wound clean.
15. The patient was discharged from the hospital on 14.5.1992 with no complaints. He continued to take fresh treatment from the Orthopedist for one long year thereafter, took advantage of a free supply of an artificial limb on the recommendation of the orthopedist and all these without a whisper. Suddenly he comes out to file a complaint alleging that the surgeons who operated upon him are not vascular surgeons and they are incompetent, unqualified and inexperienced and used him as a guinea pig, played fraud upon hint etc., makes defamatory, uncalled for statements against them and makes a flat claim of Rs. 20 lakh.
Complainant's wife has signed the consent form.
16. Vascular Surgical Training is a part and parcel of General Surgical Training given during three years course in General Surgery itself. Both have obtained further specialised training and qualifications for further three years during the M Ch in Cardio Vascular and Thoracic Surgical Training programe. This qualification fully specialises an individual in Cardio Vascular and Thoracic Surgery. Subsequent to these qualifications, diagnosis and treatment of the heart and blood vessels are part of routine work. During the course of the study, they are trained and work in hospitals and conduct surgeries. This part of their training is consideration experience for getting a job.
17. Under the Indian Medical Council Act, registration of additional qualification is not mandatory. M Ch in Vascular Surgery in Madras was started for the first time in 1988-89. None of the Apex institutions in the country like, AIIMS, Delhi, Chitra Thirunal etc., do not offer any separate course in M Ch Cardio Vascular Surgery. Only recently, courses are conducted for specific specialisation in vascular surgery. This does not mean that all the earlier qualified surgeons with all their qualifications, training and experience are to be treated as unfit to conduct vascular surgery.
18. He submitted that earlier there were no vascular surgeons and only cardio thoracic surgeons performed the vascular surgery.
Submissions of the learned Counsel for OP Nos. 1 and 4:
19. Learned Counsel reiterated the submissions made by OP Nos. 1 and 4 before the State Commission. He submitted that the general consent as per Exhibit R 4 was obtained. Complainant's wife has signed the general consent. (Authorisation for operation etc.,)--"Permission for any diagnostic examination, biopsy, transfusion or operation and for administration of any anaesthetic and for a post mortem". It is pertinent to note that in the complaint, the complainant does not allege lack of consent for the arteriogram and for the vascular surgery but only complained about lack of consent for amputation by OP No. 1. Complainant's wife has signed the consent forms, which is at R 4 and R 5. Though she is an educated lady she was not examined and it is not the case of the complainant that she was incapable of giving consent. He has submitted in his evidence as follows:
My wife knows to read and write. Except my wife, there was nobody to look after me at Manipal Hospital on 15.4.1992.
Findings:
Whether consent was obtained before performing the surgery?
The records submitted in volume III before us at pages 2, 9, 14 and 17 are reproduced below:
Consent forms:
Authorisation for operation etc., Permission is hereby given for the performance of any Diagnostic Examination Biopsy, transfusion or operation and for the administration of any anaesthetic as may be deemed advisable in the course of this hospital admission. I am also willing for a post-mortem in the unfortunate event of death.
Signature of the patient-Smt Chandra Gurudev dated 15.4.1992.
(i) I, Smt. Chandra Gurudev hereby authorise Manipal Hospital, Bangalore to perform "Angiogram, femoropopileteal embolectomy" on Dr. B.N. Gurudev. The consent form was signed on 15.4.1992.
(ii) I, Dr. Gurudev hereby authorise Manipal Hospital, Bangalore to perform 'Wound Inspection'. The said consent form was signed on 17.4.1992.
(iii) I, Dr. Gurudev, hereby authorise Manipal Hospital, Bangalore to perform 'Wound Debridness. The said consent was signed on 26.4.1992.
20. This clearly indicates that the consent, was given by the wife of the patient who is an educated lady and she was staying along with him in the hospital for arteriogram examination, biopsy, transfusion or operation and for administration of anaesthesia as well as postmortem in the unfortunate event of death. She also gave the consent for Angiogram, femoropopileteal embolectomy. Further after the surgery, the patient has given consent for wound inspection as well as for wound debridness.
21. It is true that there is no separate specific consent for amputation of the right leg but it is clear from the affidavit of the operating surgeon that when the complainant's wife was told about this and she swooned and hence, she was taken to a separate room for treatment. She has not filed any affidavit to deny this. After performing the arteriography when it was found that his limb had become non-viable and gangrene has set in, and the surgeon attending on him has no choice but to perform amputation to save the life of the patient as by that time it had become an emergency procedure.
Whether Cardio Thoracic Surgeon could perform Vascular Surgery.
22. It is clear from the records and evidence placed before us that a Cardiovascular Surgeons are competent to perform Vascular Surgery. Off late there are super specialists performing only Vascular Surgery. However, Vascular Surgeons do not generally perform cardiac surgery. Patient himself decided to get discharged from the KMC Hospital, Hubli and got admitted to the Manipal Hospital. He was conscious at the time of admission and he could have asked the hospital authorities whether there are any super specialist vascular surgeons handling only Vascular Surgery in the hospital before admission, which he had not done. This appears to be an after thought on the part of the complainant.
Whether the alleged discrepancies in the cross-examination of the treating surgeon are material?
23. Let us try to analyse each one of them.
The issue relating to the informed consent has already been answered. Some doubts have been expressed about the description of Posterior Condyle. This has been clarified in the cross-examination by Dr. Ramanna:
There is also a quibbling of the word 'limb non-viable'. This has been clarified through an answer by Dr. Ramanna wherein he has mentioned that:
The word gangrene is not specifically mentioned, but the alternative, 'limb non-viable means the same.
Whether amputation was necessary?
24. On 15.4.1992before the amputation by Dr. Shekar Rao, Dr. Rao consulted the Cardiovascular Thoracic Surgeon who has observed as follows:
15.4.1992-Cardiovascular Thoracic Surgical Consultation:
Thanks for the consultations-
(R) leg is cold, swollen, pulse-less and devoid of sensation or movement below the knee.
Previous poplitial A explorative, Embolectomy at Hubli.
Poplitial A re-explored.
Provisional embolectomy restored antegrade flow upto proximal poplitial level.
No retrograde flow despite repeated attempts Distal poplitial vessel badly contused.
All veins extensively thrombossed in the leg.
Calf muscle appears non-viable, no bleeding from cut surfaces.
Imp: Vascular reconstruction not possible. Distal limb below knee appears non-viable.
Advised: A K Amputation. Discussed with Dr. Ramanna/Dr. Ashok Cherian and handed back to Orthopaedic team.
Further Dr. Rao has observed that:
The emergency, right limb angiography, performed, on the complainant revealed that:
(a) The popliteal artery (the artery behind knee) was severely damaged.
(b) The artery was badly torn, as indicated by the gross extravasations into the surrounding muscle of the contrast medium used for the angiogram, which, in lay terms, means that, the dye used for the angiogram, could go out from the artery, into the surrounding tissues.
(c) The popliteal artery, proximal to the trifurcation, could not be crossed, which, in lay term means, that, there was total blockage or discontinuity. Between the near and far parts of the artery and;
(d) The superficial femoral artery, was occluded at mid thigh level by thrombus, which in lay terms means that, as the knee artery was totally blocked and injured, blood clot had formed and had grown backwards into the thigh artery, because of stagnation.
In this connection, it is useful to go through the medical text on Vascular Surgery (Third Edition)(Standard Reference Manual) by Robert B Rutherford M D wherein it has been observed:
(i) Popliteal artery trauma results in amputations more often than any other arterial injury.
(ii) Popliteal arterial injury can usually be diagnosed rapidly if the initial examiner appreciates the signs and implications of this injury. Seventy percent of the patients in a recent series presented with pulse less extremities, and most of them also had other signs of ischemia. These findings usually lead to a rapid diagnosis and immediate operation. Thirty per cent of patients present with less obvious signs, however, and half of these people have only wounds that are in close proximity to major vessels. Most penetrating popliteal injuries can be identified by adhering to the principle of arteriographic or operative exclusion of underlying arterial trauma. The diagnosis of blunt injury often is less obvious, and this is the reason for most treatment delays. Thirty two per cent of patients with knee dislocations have arterial injuries and the amputation rate is 86 per cent in those limbs that are not revascularized within eight hours.
Complainant has neither filed any expert evidence nor he has submitted any extract of medical text corroborating his complaint to support his contention. Respondents have filed all medical records, which has not been denied by the complainant.
25. Complainant was involved in an accident on 13th April, 1992 from while riding motor bicycle from Hubli to Haveri. He went by an auto rickshaw and got himself admitted in KMC Hospital, Hubli. As the condition did not improve, he travelled by train from Hubli to Bangalore and then went by Ambulance to Manipal Hospital, where he himself got admitted. As precious time was lost between the time of accident and the time he was admitted at Manipal Hospital, where x-rays were taken and arteriogram was performed. There was no possibility of reviving the right leg as gangrene has set in. To save the precious life of the Veterinary Orthopaedic Surgeon, a team of doctors came to an unanimous decision to amputate the right leg which was done in the two stages. Subsequently post-operative treatment was given to the patient/appellant at the same hospital. Appellant before us visited the hospital for Vi years not only for post operative care but also for obtaining prosthetic leg and necessary advice.
26. Hence we are not persuaded to hold that the doctors and the hospital were negligent in this case.
27. Our view is fortified by the celebrated judgment of the Apex Court in Dr. Laxman Balkrishana Joshi v. Dr. Trimbak Bapu Godbole , while dealing with the question of medical negligence and duties of a doctor, observed thus:
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task 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: (cf. Halsbury's Laws of England. 3rd Ed. Vol. 26P. 17). The Doctor, no doubt has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.
28. In the celebrated judgment i.e. Jacob Mathew v. State of Punjab and Anr. , the Apex Court has held that:
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 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 not necessary for every professional to possess the highest level of expertise in that branch which he practises. In Michael Hyde and Associates v. JD Willims and Co. Ltd. Sodely LJ said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.
29. In view of the above, we do not see any reason to interfere in the well-reasoned order passed by the State Commission. Accordingly, this appeal is dismissed. However, there shall be no order as to costs.