State Consumer Disputes Redressal Commission
1.Smt. Govindarajula Radha Kumari vs 1.Rohini Super Speciality Hospitals on 18 April, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION : HYDERABAD.
ADDITIONAL BENCH
C.C.No. 03/2019
Between:
1.Smt. Govindarajula Radha Kumari, W/o Govindarajula Venkata Shobana Chalapathi Rao, Aged about 52 years, Indian, Occ.: Housewife.
2. Govindarajula Venkata Sai Sree Keerthi, D/o Govindarajula Venkata Shobana Chalapahti Rao, Aged about 23 years, Indian, Occ.: Student.
Both are R/o H.No.6-2-521, Srinagar Colony, Nalgonda -508001, Telangana State.
......... Complainants And:
1. Rohini Super Speciality Hospitals, (A Unit of Rohini Medicare Pvt., Ltd.,) 2-5-748, Subedari, Hanamkonda - 506 001, Rep. by its Managing Director.
2. Dr.K.Sunil Kumar, Anaesthetist, Rohini Super Speciality Hospitals, (A Unit of Rohini Medicare Pvt., Ltd.,) 2-5-748, Subedari, Hanamkonda - 506 001,
3. Dr.T.Sanjay, Surgeon, Rohini Super Speciality Hospitals, (A Unit of Rohini Medicare Pvt., Ltd.,) 2-5-748, Subedari, Hanamkonda - 506 001,
4. The Oriental Insurance Co., Ltd., Hanamkonda Branch, At 15-1-422/A & B, 3rd Floor, SVS Legend, Warangal-506 012, Telangana State, Rep. by its Branch Manager.
(As per the orders, I.A.No.203/2019 Dt. 11.09.2019 in O.P.No.4 impleaded) .........Opposite Parties 2 Counsel for the Complainants : M/s G.Krishna Reddy, Advocates. Counsel for the Opposite Parties No.1 & 2 : M/s K.Sanjeeva Reddy, Advocates.
Counsel for the Opposite Party No.3 : M/s Pradip R.Tornekar, Advocates.
Counsel for the Opposite Party No.4 : M/s E.Venugopal Reddy, Advocates.
QUORUM: HON'BLE SRI V.V.SESHUBABU MEMBER - (J) & HON'BLE SMT. R.S. RAJESHREE, MEMBER - (NJ) TUESDAY, THE 18th DAY OF APRIL TWO THOUSAND TWENTY THREE ******* (Per Hon'ble SMT. R.S. RAJESHREE, MEMBER - (NJ) Order :
1. This application is filed under Section 17(1) (a) (i) of the Consumer Protection Act, 1986, praying this Commission to direct the Opposite Parties jointly and severally :-
a) To pay compensation of Rs.50,00,000/- with interest @ 15% p.a. from 30.06.2016 till the date of realization;
b) To pay costs of Rs.1,00,000/- and pass such other order or orders which the Commission deems fit and proper under the circumstances of the case.
2. The brief facts of the case are as follows:
The case of the complainant is that her deceased husband who was an Advocate by profession was suffering from low back 3 ache with radiating pain in both lower limbs. There was progressive numbness in the toes bilaterally. He was also finding difficulty in walking and had history of back ache since last five years, that apart, he was also obese, weighing about 85 kgs and short necked person, he was also facing breathing problem while walking. Due to these complaints he approached the Opposite Party No.1 hospital in the last week of June 2016. The Opposite Party No.3 doctor who examined him had diagnosed that he was suffering from L5, S1 grade I, spondylosis and advised him to undergo a spine surgery. Agreeing to same her deceased husband got himself admitted in Opposite Party No.1 hospital on 29.6.2016 and under the supervision of Opposite Party No.3 he had undergone all the tests that were required for the major surgery. And on 30th of June 2016 at about 8:00 AM the patient was taken into the operation theatre and Opposite Party No.2 being an Anesthesiologist has done a pre-anaesthetic check up and opined that general anaesthesia to be given and found the patient to be fit for surgery and also his vitals were stable and Opposite Party No.2 administered anaesthetic drugs and intubated the patient for the purpose of oxygen but immediately the patient developed bradycardia, immediately Opposite Party No.2 and 3 started giving CPR to the patient and had taken resuscitative measures and later shifted the patient to ICU but, however, at about 10:19 AM the patient was declared dead. Sri K. V. Janardhan Rao, who is the brother of the patient had immediately made a police complaint at 4 the Nalgonda II town police, who registered an FIR vide number 192 of 2016 but, however, the said complaint was transferred to Subedari Police Station at Hanamkonda due to lack of jurisdiction, then the complaint was renumbered as FIR number 401/ 2016 but, however, as the brother of the complainant being busy with his professional work could not pursue the criminal complaint hence, the complaint could not be prosecuted further.
On 3.2.2017 the complainant got issued a Legal Notice, to the opposite party through her advocate and asked the opposite party to furnish investigation reports, discharge summary and certificate of cause of death and on 13.02.2017 the opposite party furnished the investigation report and the cause of death, the complainant again got issued one more notice seeking copies of case sheet, death summary, operation notes and Anastasia notes, the opposite party furnished the same. It is only after going through these reports the complainant has realized that the opposite parties were negligent in their services, the consent form that was taken was a very formal consent form without even disclosing the kind of surgery being performed. It is only in the consultant's form that the name of the surgery is mentioned as Laminectomy and Discectomy, opposite parties were aware that the patient was a short necked person and also had breathing problem while walking but, however, they failed to evaluate the cardiac condition of the patient before the surgery. The opposite parties failed to obtain the 5 cardiology fitness of the patient and the Opposite Party No.2 failed in intubating the tube for ensuring proper oxygen since the patient was a short necked person, the opposite parties failed to take proper precautions before intubation the Opposite Parties should have taken extra care while intubation since the patient was short necked, due to this carelessness of opposite parties the husband of the complainant had met with an untimely death, due to such negligent acts of the opposite parties the complainant got issued Legal Notice, on 29/6/2017 only Opposite Party No.2 had replied to the said Notice. The complainant further submits that her deceased husband was the only bread winner and that she is a housewife and their daughter has just completed BHMS course and that due to the acts of Opposite Parties, she has lost the consortium and their daughter has lost the parental love and affection, as such the present complaint seeking compensation and costs.
3. The Written Version filed on behalf of the Opposite Party No.1 & 2:-
The Opposite Parties filed their written version admitting that the deceased husband of the complainant was admitted to their hospital, but had pleaded that he had visited their hospital on 29.06.2016 for the first time with a complaint of radiating pain in both lower limbs and progressive numbness in both toes bilaterally and progressive difficulty in walking since, last 05 years. 6
The patient was obese, short necked and was feeling difficulty in walking due to pain in lower limbs. He was not found having any breathing problems nor any such history was disclosed by the complainant or the patient. And after clinical examination, the patient was found to be conscious, coherent cranial nerves normal. The patient was also found ankle jerk absent bilaterally on both sides and with about 70% sensory impairment in L5 and S1. The MRI of the patient also reveals L5/S1 bilaterally root compression and ultimately he was diagnosed to have been suffering from spondylolisthesis and physician Dr.Buchi Reddy, who is a competent person has found the patient fit for undergoing surgery and accordingly the opposite party planned for a surgery on 30.06.2016 and on 30.06.2016 at 8:00 A.M., the pre-anesthetic check was done and then general anesthesia was planned. And the patient was administered proper medication and inspite of utmost care, at about 8:38 A.M., the patient developed bradycardia and pulse fell to 42/m, spontaneously respiration ceased, he was given Atropen 0.5mg injection intravenously and standardized treatment was given to the patient. But at 8:45 A.M. the patient had an cardiac arrest, after which CPR was continued and by 8:55 A.M., as there was no ECG activity seen, DC Shock and other treatment was being given to the patient. After which at 9:20 A.M., the ECG activity was seen pulse was felt as such the patient was shifted to RICU and was connected to ventilator. Again at 9:45 A.M., the patient had a cardiac arrest and again CPR was started along with 7 other standardized treatment and inspite of the best efforts of all the doctors, the patient could not be revived and at 10:19 A.M., the patient was declared dead. And that they have followed all the standardized treatment required in the given situation.
The brother of the complainant had filed a criminal complaint before the Hanamkonda Police Station, vide FIR No.401/2016, in which a two member doctor committee was constituted by the Superintendent of MGM Hospital, Warangal, to examine the treatment provided to the patient, wherein, the said Committee, had opined that the patient was given utmost care, appropriate treatment and that there was no negligence on the part of the treating doctors of Rohini Hospitals, Warangal. And the Legal Advisor, C.P.O., Warangal furnished a legal opinion, in which he opined that the death is unexpected for which the doctors of the hospital cannot be found at fault, as such the case may be referred as "Mistake of Fact".
The opposite parties further plead that the complainant with an intention to harass and dis-repute the opposite parties, filed this false and baseless complaint and that they have issued Legal Notice and sought for Investigation Reports, Discharge Summary and Certificate of Cause of Death of the deceased on the pretext of claiming insurance, but, the said fact has not been disclosed in the present complaint and the said documents have been used by the 8 complainant to file the present complaint. This non-disclosure of vital information, itself, shows the fraudulent intention of the complainant.
The opposite parties further pleads that there was a proper consent obtained from the patient and the complainant, wherein they have expressed their awareness of the treatment, surgery, risks involved in the surgery, etc. The Opposite Parties further plead that the patient never had history of breathlessness and the ECG of the patient also did not disclose any abnormality, as such the question of cardiac evaluation was not found necessary. And further denied that due to fault in intubation, the patient developed bradycardia and that the opposite party No.2 is an Anesthetist with 15 years of un-blemished experience and the present complaint is filed only to harass and with the malafied intention to make wrongful gain. The Opposite Parties further submits that the patient died much before commencement of the surgery, as such the Opposite Party No.3 who is a surgeon cannot be said to be negligent. And that the opposite party hospital is a well reputed hospital in Warangal, with all modern facilities and is in medical services for more than 25 years and treating thousands of patients successfully. And the complainant filed the present complaint only with an attempt to damage the reputation of the hospital. The opposite parties expressed their unawareness of the Profession of the patient and also his monthly income as the same 9 is not supported with any of the documentary proof of income, such as Income Tax returns, as such the complainant is not entitled for any compensation. Hence, prayed that the complaint be dismissed with exemplary costs.
4. The Opposite Party No.3 remained ex-parte.
5. The Opposite party No.4 i.e. the Oriental Insurance Co., Ltd., had filed their written version stating that they have been un- necessarily made a party to this complaint as there is no cause of action arose against them and that there is no privity of contract between the complainant and the Insurance Company. And further stated that they have issued a policy, bearing No.431403/48/2016/1569, which is valid from 22.01.2016 to 21.01.2017. And the said policy is issued in favour of M/s Rohini Medicare (P) Limited, Subedari, Hanamkonda, Warangal, but not in favour of M/s Rohini Super Speciality Hospitals. And that the limit of liability in aggregate during the policy term is Rs.15,00,000/- (Rupees fifteen lakh only) and covers only one or any one accident. The limit of indemnity cover by the policy for any one claim or series of claim out of one event is restricted to Rs.5,00,000/- (Rupees five lakh only) and further expressed their unawareness with regard to allegations made against the doctors and the hospitals and that they were no way concerned with the said negligence of opposite party No.1 to 3. And that the Opposite Party No.1 to 3 also not informed nor given any details about the 10 said incident. And further pleaded that the Opposite Parties No.1 to 3 have never informed them about the filing of the complaint and only after receiving the summons from this Court, it has come to their knowledge and that the Insurance Company shall be liable only subject to terms and conditions of the policy. And that the Insurance Company would be liable only in case of negligence of the insured is proved, as such they are no way concerned with regard to the acts of the Opposite Party No.1 & 2. Hence, prayed that the complaint may dismissed with exemplary costs.
6. On behalf of complainants, the complainant No.1 has filed evidence affidavit and got marked Ex.A1 to A27 and on behalf of the Opposite party No.1 & 2, Dr.G.Kranthi Rao, Doctor and Managing Director and Dr.K.Sunil Kumar, Anesthetist, filed the evidence affidavits and Ex.B1 is marked on their behalf. Written Arguments and Memo of Citations are filed by the Opposite party No.1 & 2.
Heard the counsel for Opposite Party No.1 & 2.
7. The Points for consideration are:
1 Whether the opposite parties were negligent in their services? 2 Whether the complainants are entitled for the reliefs sought in the complaint ?
3 If yes, to what extent ?11
8. Point No.1 & 2:
The grievance of the complainant is twofold, firstly that the opposite parties though fully being aware that the deceased husband of the complainant was suffering from shortness of breath while walking, had failed to take precaution in evaluating the cardiovascular fitness of the patient before the surgery i.e. they have failed to ascertain cardiac fitness of the patient prior to taking a decision for surgery. Secondly that the Opposite Party No.2 who is an Anesthesiologist, had carelessly administered the anesthetic drugs and also negligently intubated the patient for oxygen without even considering that the patient was short necked i.e. the patient being short necked the opposite parties should have taken extra care in intubation of oxygen. And in support of her case the complainant got marked exhibit A1 to A27.
Now the point that arises for consideration is that whether the opposite parties have evaluated the condition of the patient in all aspects prior to coming to a decision of performing a surgery.
Before going into the merits of the case we would like to discuss in short the pre-operative assessment that is to be undertaken before performing any surgery. In an article published by Dept. of Anesthesiology "hippokratio" authorized by A.Zambouri who had articulated that the ultimate goals of pre- operative medical assessment are to reduce patient's surgical and anesthetic, peri-operative morbidity or mortality and to return him 12 to desirable functioning as quickly as possible. And had discussed in detail the assessment to be done based on the history of the patient, physical examination, and apart from the general blood test, urine test, chest X ray, ECG, stressed on the need for cardiovascular and pulmonary tests. The Indian Medical Association has also issued certain pre-operative assessment guidelines which are as under:-
Clinical evaluation, investigations, risk assessment, optimization of medical condition and informed consent. And in investigations has recommended the following tests: The preoperative workup may include laboratory investigations such as complete blood count, electrolytes, blood glucose, liver and kidney function tests, coagulation profile and imaging studies such as Chest X-ray, ECG and echocardiography.
The opposite party in the written version had contended that they were never informed about the breathlessness of the patient and that they have conducted all the required tests before coming to a decision of performing surgery. Irrespective of whether the complainant and the patient have informed about the breathlessness, the opposite party number 3 being a surgeon and expert is expected to evaluate the condition of the patient in all aspects before taking a decision to perform a surgery, since any kind of surgical procedures be it minor or major, carry a varying amount of risk hence pre-operative assessment is mandatory and 13 this evaluation helps the surgeon to come to a conclusion whether the patient is fit for such surgery or needs any further management before performing the surgery so that the complications that may arise during post surgery be avoided. It is for the surgeon to ensure that the patient is fit in all aspects for performing the surgery. It is a contention of the opposite party that as the ECG of the patient was normal as such they did not choose to further evaluate the cardiovascular condition of the patient. In a medical negligence case, the burden is on the opposite parties to prove that they have followed the standard line of treatment. In the instant case, the opposite parties though contend that they have performed all the required tests, such as ECG, Chest X ray, MRI etc., but no such record is placed before the Commission, though in the Ex. A15 there is a mention of ECG as normal, Chest X-ray, MRI but the same are not supported by any reports. As such an adverse inference can be drawn whether the Opposite Parties have conducted these mandatory tests. Had they really conducted these tests, we fail to understand what restricted them from producing the same before this Commission in support of their contention.
Given the age, weight and complications of the patient, the opposite parties should have taken extra precautions by ensuring that the patient is fit in all aspects. We fail to understand, why the 14 opposite parties were in such a hurry to perform the surgery, since the patient had approached them only on 29/06/2016 for the first time and the surgery was fixed for very next day i.e. 30/06/2016 without even assessing on what medication he was since last five years and without giving any breathing time to patient and his family members to take a decision, whether to undergo the surgery or not. All these acts of opposite parties are indicative of lapses in pre-operative assessment.
Based on the above discussion we are of the view that the opposite parties have been negligent in treating the patient by not taking the precautions of evaluating the patient in all aspects and carelessly proceeding for surgery without even conducting the basic mandatory pre-operative tests.
Coming to the other allegations of the complainant that the Opposite Party No.2, had not administered the anesthesia properly, so also, the intubation for oxygen was not done properly. A perusal of Anesthesia Notes goes to show that the Opposite Party No.2 had given the following injections :- injection Glyco 0.2mg IV, Inj. ondensetron, Inj. Pranitidine- 100mg Dv; Inj. Fentany 100mg, however, only an expert can enlighten with regard to the effect or side effects of these injections, no such expert is examined by the complainant, as such it is difficult to arrive at a conclusion with regard to the injections administered, whether these injections are cause for the development of Bradycardia, only an expert can tell. 15 The opposite party had contended that they have followed the standard line of treatment and referred to the Anesthesia Notes under Ex A15 and also contended that the two member doctor committee that was constituted by the Superintendent, MGM hospital, Warangal, that had examined the treatment given by the doctors at Rohini Super Speciality Hospital had given a finding that "the death of the deceased is not on account of the negligence of doctors attended the surgery to the deceased and death is only due to cardiac arrest. Therefore, the death is unexpected for which doctors of the hospital cannot be found fault, as such this case can be referred as „Mistake of Fact‟."
What is manifest from the Anesthesia Notes under Ex A15 (Bunch of Papers) and the finding given by the two member Committee is that, both these pertains to the line of treatment adopted after the patient had developed bradycardia, but, not the treatment and precautions that were to be adopted prior to such development, had the opposite parties evaluated the condition of the patient in all aspects the patient would not develop bradycardia, a keen perusal of Anesthesia Notes under Ex A15 (Bunch of Papers) goes to show that, between 8.30 to 8.35 A.M., injection Glyco 0.2mg IV, Inj. ondensetron, Inj. Pranitidine- 100mg Dv; Inj. Fentany 100mg were given and at 8.38 A.M. i.e. within a span of three minutes the patient developed bradycardia with a pulse rate of 42/minute. And it is pertinent to note here that lowered heart rate is one of the side effects of all these injections, 16 after development of bradycardia the doctors put all the required efforts to save the patient. The patient has not developed bradycardia, due to these injections is to be proved by the opposite party or an expert.
The opposite parties have relied upon the following citations i.e. in 2021(2) CPR 465(NC); 2021(2) CPR 459(NC); 2021(2) CPR 255(NC) and 2021(1) CPR 701(NC).
But the facts stated in the above cases are not similar to facts of the case in hand.
In R.P.No.1016/2019 & 1066/2019 between Parel Hospital vs. Uma Mangesh Nikam & 02 others the Hon'ble NCDRC in a similar case has held the Anaesthesiologist & the Hospital liable for negligence and held as under:-
"Before proceeding to surgery, he was supposed to be careful to ascertain proper pre-anaesthetic check-up & fitness report". "It is pertinent to note that the anaesthesiologist did not even read the reports of investigations of patient and relied on telephonic communication by ) Orthopaedician given fitness for anaesthesis". The court further emphasized the role of the surgeon and held that "The „Captain of the ship‟ was the Orthopaedic Surgeon and before proceeding to surgery, he was supposed to be careful to ascertain proper pre-anaesthetic check-up and fitness report". And in the instant case also though the opposite parties plead that the ECG and MRI were conducted and found to be normal no 17 such reports are placed before this Commission, though the same finds a mention in Ex.A15 Anesthesia Notes.
Based on the above discussion, we have no hesitation to hold Opposite Party No.1 to 3 liable for negligent acts. As such liable to pay compensation to the complainant.
9. Point No.3:
In the result, the complaint is allowed in part directing the Opposite Parties No.1 to 3 Jointly and severally:-
(i) To pay a compensation of Rs.10,00,000/- (Rupees ten lakh only) for the negligent acts and for hardship and mental agony caused to the complainants. On such payment they can make a claim before the Opposite Party No.4 and avail the same.
(ii) To pay a costs of Rs.20,000/- (Rupees twenty thousand only).
(iii) Time for compliance is 30 days from the date of receipt of the orders.
Dictated to the Steno; transcribed and typed by her; corrected and pronounced by us in the Open Court on this 18th day of April, 2023.
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MEMBER(M-J) MEMBER (M-NJ)
Dt: 18.04.2023 .
AD*
18
APPENDIX OF EVIDENCE
WITNESS EXAMINED
Evidence affidavit of Evidence affidavit of
The complainants Opposite Party No.1 & 2
Smt.Govindarajula Dr.G.Kranthi Rao.
Radha Kumari Dr.K.Sunil Kumar.
EXHIBITS MARKED
For Complainants:
Ex.A1-is the Photostat copy of Certificate of "Bar Council of the State of Andhra Pradesh" dated 27.04.1989. Ex.A2-is the Photostat copy of First Information Report, No.192/2016, dated 01.07.2016 (containing 03 papers). Ex.A3 - is the Photostat copy of "Shavapanchanama Report" of Govindarajula Venkata Shobana Chalapathi Rao, dated 01.07.2016 (Containing 02 papers).
Ex.A4 - is the Photostat copy of Report of Post Mortem Examination, dated 01.07.2016 (containing 03 papers). Ex.A5 - is the Photostat copy of First Information Report, No.401/2016, dated 08.12.2016 (containing 02 papers). Ex.A6 - is the Photostat copy of Final Report U/Sec.173 Cr.P.C., dated 16.07.2017 (containing 02 papers). Ex.A7 -is the Legal Notice, dated 03.02.2017. Ex.A8 -is the Original copy of Reply Letter, dated 13.02.2017. Ex.A9 - is the Original Copies of Pathology, Complete Blood Picture, dated 29.06.2016 (containing 06 papers). Ex.A10 -is the Original copy of Medical Certificate of Cause of Death, Forum No.4, dated 30.06.2016.
19Ex.A11 -is the Original copy of Death Report. Ex.A12 -is the Legal Notice, dated 17.03.2017. Ex.A13 - is the Original Postal Receipt dated 18.03.2017 and Postal Acknowledgement Ex.A14 - is the Original Reply letter, dated22.03.2016. Ex.A15 - is the Original copy of Admission Record, Regd. No.4046 (Containing 21 papers) Ex.A16 - is the Legal Notice, dated 27.06.2017 9Containing 02 papers).
Ex.A17 -is the Returned Cover with Original 04 Postal Receipts and 03 Acknowledgments.
Ex.A18 - is the Legal Notice, dated 29.06.2017 (Containing 02 papers).
Ex.A19 - is the Original 03 Postal Receipts and 03 Postal Acknowledgments.
Ex.A20 - is the Legal Notice, dated 10.07.2017. Ex.A21 - is the Original 02 Postal Receipts and 02 Postal Acknowledgments.
Ex.A22 - is the Reply letter, dated 06.07.2017 (Containing 02 papers).
Ex.A23 - is the Photostat copy of Form No.6, Medical & Health Department- Death Certificate.
Ex.A24 - is the Photostat copy of Family Membership Certificate, dated 22.12.2016.
Ex.A25 - is the Photostat copy of Aadhar Card of G.Radhakumari and G.V.S.Sree Keerthi (3 in number).
20Ex.A26 - is the Photostat copy of Indian Income Tax Return Verification Form of the G.Venkata Shobhana Chalapahti Rao (4 in number).
Ex.A27 -is the Certificate of Bar Association, Nalgonda, dated 24.11.2020.
For the Opposite Party No.1 & 2:
Ex.B1- is the copy of Anesthetic Record of G.V.S.Chalapathi Rao, IP No.4046/2016 (Containing 06 papers). For the Opposite Party No.3:-
Nil For the Opposite Party No.4:-
Nil
SD/- SD/-
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MEMBER (J) MEMBER (NJ)
Dt:18.04.2023
*AD