National Consumer Disputes Redressal
Lal Memorial Hospital & Ors. vs T. Sivaraman & Anr. on 3 August, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 37 OF 2010 (Against the Order dated 27/10/2009 in Complaint No. 91/1999 of the State Commission Kerala) 1. LAL MEMORIAL HOSPITAL & ORS. Represented by its Trustee, Sri S.N. Chandrika Trust, Asan Nagar, Madyaikkkonam Irinjalakuda-680712 Kerela. 2. S.N.Chandrika Trust - 3. Administrator Lal Memorial Hospital Asan Nagar,Madayikkonam Irinjalakuda-680712 ...........Appellant(s) Versus 1. T. SIVARAMAN & ANR. Thyvilappil Veedu Adattu,P.O. Thrissur Kerela. 2. P.Rajeswari R/o.Thyvilappil Veedu Adattu,P.O. Thrissur ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Appellant : Mr. Raghenth Basant, Advocate with Ms. Aditi Mishra, Advocate For the Respondent : Mr. Amit Sharma, Advocate Dated : 03 Aug 2015 ORDER PER DR. S. M. KANTIKAR, MEMBER The changing nature of hospitals has not gone unnoticed by the courts. Hospitals, like other businesses, must provide quality services or be responsible to the consumer for the consequences The result has been increased recognition of a duty owed by hospitals to their patients with respect to the quality of medical care offered, even in the absence of a 'master-servant' relationship between the physician and the hospital. Courts impose corporate liability because patients are entitled to expect quality treatment from modern hospitals, which generally have extremely sophisticated equipment and highly trained personnel.
The patient, Miss Shrijini (since deceased) was diagnosed as spastic dysplasia, by Dr.Basheer . She had flexion deformity of both the knees. Therefore, she was operated for correction surgery by Dr. Basheer (OP-4) at Lal Memorial Hospital (OP-1), on 25.07.1997. The patient started complaining about pain, which was reported to the staff but neither staff nor doctor attendant to the patient. Every time, the patient was told 'Nothing to worry', by the staff nurse. The patient was advised for traction, but the nurse did not put the traction but applied bandage to the legs and made it firm. Subsequently, patient had severe pain in her legs, which was left unattended, despite several requests by the complainant. The doctor did not visit the patient, till 28.07.1997, after operation. Duty doctors never bothered about the patient. On 28.07.1997, at about 11.00 a.m., Dr. Basheer visited during the daily round, who observed severe pain in the knees and noticed large swelling. The doctor removed the bandage. Swelling was increased to a great extent and blisters were noticed. There was loss of sense below the knees. Nails in the legs began to peel off. The patient was treated for two weeks by IV Glucose and five bottles of blood. The patient had distention of abdomen. The pus was flowing through the legs. Hence, it was informed that the leg was to be amputated, otherwise, it would affect the kidneys. Initially, two operations were performed for removal of pus from the legs. The patient became very critical. When the bandage was removed, both the legs were discolored as blue. Hence, 4th OP doctor informed complainant for operation of removal of dead tissue and further plastic surgery was suggested. It was assured that both the legs of the patient would become normal, within two weeks, but the condition of patient, further deteriorated. More blisters appeared on the legs. No specialist like neurosurgeon, orthopedic surgeon or plastic surgeon visited the patient, except the 4th OP on 30.07.1997. The patient became serious, unconscious, progressed into coma. . Due to assurances given by the OP hospital and doctor, the patient was kept in OP hospital, till 08.09.1997 (for 49 days). Thereafter, the complainant took discharge and got admitted the patient in Medical College Hospital, Thrissur, on 08.09.1997, wherein it was diagnosed as gangrene of both lower limbs and septicemia. The child was treated with antibiotics, blood transfusion, and amputation of both the lower limbs was advised. But due to poor health condition of the patient, it was not performed. Subsequently, the child died on 12.09.1997.
The complainant alleged that due to medical negligence, in not providing the standard of care by the OPs, the patient died. No proper precautions were taken by the OP-4. The OP ought not to have conducted operation of both the legs, simultaneously. Procedure adopted was wrong. The OP-4 failed to diagnose cause of severe pain after the operation which led to gangrene of both legs. The complainant filed a complaint before the State Commission for total compensation, amounting to Rs.11 lacs.
The State Commission allowed the complaint and directed the OPs 1 to 3 to pay to compensation in the sum of Rs.2,95,000/- with interest @9% p.a. from the date of order and Rs.10,000/- as costs.
Aggrieved by this order, this first appeal has been filed.
We have heard the learned counsel for the parties. Learned counsel for the complainant reiterated the facts in the complaint and submitted that there was negligence on the part of OP/doctor during treatment and also the hospital staff, who were negligent for not attending the patient, properly.
Learned counsel for the OP submitted that, Dr. Basheer diagnosed the patient's condition as "spastic diplegia" and patient could not stretch the knee joint beyond a certain level. After discussion and informed Bilateral Obturator neurectomy, Eggars procedure was performed. No assurance was given for total correction or cure of the deformity. As directed by Dr.Basheer, nursing staff duly put skin traction and then instructed to the bystander of the patient, including lady social worker that they should not let the child sit up. There was no negligence in performing the operation. Counsel for OP submitted that Dr Basheer used to examine the patient every day, there were no complaints of any pain or discomfort, till 28.7.97 till 6 am. During the rounds, at 8 am, Dr.Basheer was informed of pain at ankle, patient was trying to sit in the whole night. The traction was tied with the cot and ankle was strangulated. Dr.Basheer noticed bluish discoloration and cold feet, peripheral pulsations were absent, ischemia was suspected. Therefore, immediately, the traction was removed by the nursing staff and necessary treatment was started to increase the vascularity. Thereafter, on 29.7.97, the patient's skin, below her knee, till the ankle, became black and blebs were noted. Active toe moments were absent. Treatment was continued till 4.8.97 and the patient felt feverish. The Pediatrician was consulted. It was found that superficial gangrene demarcated below the knee. The patient remained in same condition, till 11.8.1997. The slough was getting separated and it was decided to do the procedure of desloughing under General Anesthesia, after getting second opinion from Dr. K. S. Pillai, consultant Orthopedics Surgeon, Metropolitan Hospital, Trichur. Dr. Pillai opined that the patient was having superficial necrosis and sloughing of both lower limbs, below the knee. Accordingly, desloughing was done on the patient, on 8.3.1997, in consultation with Dr. Jaykumar, Microvescular Surgeon at Specialist Hospital, Cochin. Dr. Jaykumar and Dr. Basheer removed the scab and dressing on the patient. All the non-viable dead muscles were removed. Further, the patient continued in the hospital, till 8.9.1997. Several complications occurred which were promptly attended to. On 8.9.1997, on the request of parents of the child, the patient was discharged from OP 1/Hospital and shifted to Medical College Hospital, Trichur. Unfortunately, the baby died, on 12.9.1997 at about 5.30 a.m. Hence, it was not negligence.
We have gone through several medical textbooks of Orthopedic surgery which revealed that persistent traction for long duration will cause Ischemia which will further progress to gangrene. No doubt, the development of Ischemia is very rare after Eggars procedure and Neurectomy. As per the medical record and evidence, in the morning of 28.7.1997, Dr. Basheer noticed presence of ischemia on both feet of the patient and it was a case of strangulation which resulted due to from tying of both legs to the cot. It was, may be, due to pain and irritability, the patient sat on the bed with tractions on both legs, during the night of 27.7.1997. According to OP, it was done by a lady social worker who was a by-stander for the patient. On the other hand, the complainant's say was that the said tying was done by the staff of the OP/hospital. Therefore, it is quite clear that ischemia started since the night of 27.7.1997 It is clear that, as per Dr. Basheer, strangulation occurred between 6.00 a.m. to 8 a.m., on 28.7.1997, which, in our view, is contrary to the evidence of RW2, the expert, Orthopedic Surgeon i.e. RW 2, Dr. Sunny Pazhayattil, who also opined that ischemia developed during night hours of 27.7.1997. Thus, it was the act of omission by the nursing staff, who were negligent in nursing care to the patient. It is also ridiculous to expect that a surgeon or a doctor must be always, with the patient. The nursing staff failed to inform about the bluish discoloration to the treating/duty doctor, immediately, during the night hours of 27.7.1997. Thus, we do not find any fault with the Orthopedic Surgeon, Dr. Basheer, the OP 4, who had performed the surgery. It was performed with due care and caution with his expertise skills. The patient was attended to by the experts like Micro-vascular Surgeon, General Surgeon, Pediatrician, and physician, made all attempts to prevent further development of the ischemic gangrene but unfortunately ended in futile.
Corporate liability:
The corporate liability theory is premised on the notion that a hospital owes a duty, directly to its patients, to render quality medical care and to protect its patients' safety. The hospital fulfils its duty, by acting positively, to protect its patients from incompetent or negligent treatment. The breach of this independent duty, by any hospital personnel, results in, corporate or hospital liability. The measure of a hospital's duty is that degree of care, skill, and diligence, used by other hospitals, in the community.
A patient enters a hospital with a hope upon the reasonable assumption that its trained staff of nurses, its responsible supervision, and its special equipment will insure him a higher standard of care in administering to his needs, as his physician may prescribe. If this assumption were not justifiable, the patient might just, as well, stay at home, during his illness. Clearly, a hospital has a greater responsibility for the welfare of its patients than merely to maintain a pool of trained nurses, from which, the various attending physicians may select their assistants In a catena of judgments the Hon'ble Supreme Court discussed about medical negligence. According to Bolam's test, the doctor treated the child, with care and skill. It was a correct surgery, hence, we do not find any negligence on the part of treating doctors. But, due to negligence of nursing staff, the child suffered gangrene of both lower limbs; therefore, the hospital is liable under corporate liability.
12. On the basis of forgoing discussion, we do not intend to interfere with the order of State Commission. Hence, this first appeal is hereby dismissed. However, there shall be no order as to costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER