State Consumer Disputes Redressal Commission
K. Karibeeran (Deceased),Sakthi ... vs Vijaya Health Centre,Vadapalani, ... on 5 October, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru S. Sambandam, B.Sc., MEMBER II O.P.NO.76/1998 DATED THIS THE 5th DAY OF OCTOBER 2010 1.
K. Karibeeran (Deceased) No.27, 2nd Street Sakthi Nagar, Tirupattur Vellore District
2. Sundari @ Rajathi (impleaded as per order in MP.76/2005 dt.23.9.2005) No.27, 2nd Street Sakthi Nagar, Tirupattur Vellore District .. Complainant Vs.
1. Vijaya Health Centre (Annexe to Vijaya Hospital) 175, N.S.K. Salai Vadapalani, Chennai 26
2. Dr. Hariharan Consultant C/o. Vijaya Health Centre 175, N.S.K. Salai Vadapalani, Chennai - 26 Opposite parties This petition coming on before us for hearing finally on 25.6.2010, upon perusing the material documents, and upon hearing the counsels for both the parties, and having stood over till this day for consideration, this commission made the following order.
Counsel for the Complainant: Mr. K. Rajasekaran, Advocate Counsel for the 1st Opposite party:
Mr. N.L. Rajah, Advocate Counsel for the 2nd opposite party:
Mr. P.L. Narayanan, Advocate M. THANIKACHALAM J, PRESIDENT.
1. A case came to be filed by the deceased 1st complainant, under Sec.17 of the Consumer Protection Act, claiming a sum of Rs.20 lakhs, as compensation, for the gross negligence, and deficiency in professional service, rendered by the opposite parties, on the following grounds.
2. The deceased 1st complainant, was working as a branch manager, in Union Bank of India, drawing a salary of Rs.14000/-. Except a small deformity in his left leg, due to polio attack, he had no previous history of any major health problem, until October 1996. In the month of October 1996, when he developed abdominal pain, he approached the 1st opposite party, for checkup, where it was suspected to be a small intestinal tumour. After taking necessary test, the complainant was admitted as an inpatient in the 1st opposite party, hospital on 17.10.1996, after an initial payment of RS.10000/-.
3. The complainant was treated by the 2nd opposite party, and as per his advise he was operated, abdomen was opened from the left side, and a small lump of alleged tumour, measuring about 10 c.m., was removed. However, the complainant developed a bulge in the stomach, which was reported to be due to gastric problem. Despite this problem, the 2nd opposite party, discharged the complainant on 3.11.1996.
4. The complainant had no improvement, and acute pain prolonged in his lower abdomen, for which he was admitted as an inpatient, for the 2nd time, as per the advise of the 2nd opposite party, in the 1st opposite party hospital on 16.11.1996, for further treatment. At that time, the complainant was informed that intestinal infection, due to accumulation of fecal material, was the cause for the acute pain, which could be rectified by another surgery. Thus getting consent, a 2nd surgery was performed, but there was no improvement. The 2nd opposite party, even thereafter conducted three operations, within the span of 10 days, and still the condition of the complainant did not improve. At this stage, the 2nd opposite party suggested 6th operation, thereby creating suspicion about the efficiency of the treatment, given by the 2nd opposite party. Even without giving any kind of postoperative care, with opened abdomen, the complainant was discharged, and thereafter he was admitted at Sri Ramana Surgical Clinic at Venkat Narayana Road, T.Nagar, for further treatment with Doctor Rangabashyam, who opined, that the complainant was in a precarious and critical condition.
5. Dr. Rangabashyam informed, only one foot of the small intestine alone was left over, out of 26 feet, which was already removed by surgery, in a most callous and reckless manner, in the 1st opposite party hospital, by the 2nd opposite party, where they have also failed to prevent infection, by the gross negligence, in the performance of the professional duty, by the 1st and 2nd opposite parties, which should be construed as deficiency in service. The complainant was reduced to a state of vegetable, rendered immobile, for the past 1 years, for which the opposite party should be held responsible.
6. The complainant approached the 1st opposite party hospital, only on the belief, that he would be taken care of, in a proper manner, where he was assured by the 2nd opposite party also, the Gastro Consultant attached to the 1st opposite party hospital. When surgery of this nature was conducted, an intestinal T tube insertion would be done, to remove the fluid and other wastage collections, in order to prevent infection, which elementary precaution was not taken, by the 2nd opposite party, which should be construed as negligent act. The 2nd opposite party, went on conducting surgery, after surgery, removed almost the entire small intestine, within a short span of two days, thereby draining the entire energy, compelling the complainant to spend more than Rs.10 lakhs, for medicine and clinical observation, and for treatment, during the last 1 years. By the improper treatment, failure to give post operative care, the complainant is unable to continue his job, thereby causing financial strain, mental agony, which is quantified at Rs.20 lakhs, should be compensated by the opposite parties, since they have committed, gross negligence and dereliction of their professional duties. Hence the complaint.
7. Pending case, the complainant died, thereafter his wife was impleaded as nominee/ legal heir, as 2nd complainant, as per order in MP.No.76/2005 dt.23.9.2005.
8. The 1st opposite party, admitting that they have provided nursing services, including medical facilities, such as laboratory service, opposed the complaint, on the grounds, with among other grounds, that to decide the case, since elaborate evidence, both oral and documentary are required, the proper forum would be the Civil court, that for the treatment given by the 2nd opposite party, they cannot be held responsible, since there is no master-servant relationship, or principal-agent relationship, between themselves, that all the records pertaining to the patient are available only with the 2nd opposite party, that even as per the complaint, no deficiency of service is attributed, against this opposite party, thereby praying to dismiss the complaint, with cost, denying further allegations also, specifically.
9. The 2nd opposite partys case in brief:
The complainant was admitted on 17.10.1996 for investigation of abdominal pain and kidneys. Previously, in January 1996, he was treated for anemia with medicine, which was suppressed.
At the time of admission, the complainant, was very anemic, with hemoglobin of 7.5 G only, though for normal adult it is 15G. The cause of severe anemia was, due to steady bleeding into the intestine, and the internal bleeding was due to a ruptured, rare, tumour of the small intestine, which was diagnosed only by this opposite party. After taking of necessary tests, ultrasound scan of the abdomen was also taken, which revealed the presence of a tumor in the left lower abdomen. To fix the source of bleeding, a nuclear scan was taken, thereafter it was decided to remove the tumor, since failure to remove the same may cause further complication to the complainant. After due operative preparation and care, the complainant was operated on 24.10.96. His abdomen was opened, after an initial laparoscopic examination, by operation, a tumor in the small intestine about 10 cm long was removed, thereafter the cut ends of the intestine were joined. After operation, the patient had complained of abdominal pain, and some distention of the abdomen, which is usual for all patients, who undergo this type of surgery. By taking appropriate steps, monitoring the conditions of the complainant, satisfying that the complainant was passing motion, and gas through the natural passage, he was discharged on 3.11.1996, in a fit condition, with no complaints.
10. On 8.11.1996, when the complainant telephoned to this opposite party, informing abdominal pain, distention and loose stool, he was advised to report to the hospital, which he responded on 16.11.96. A clinical examination of the abdomen showed, no gross abnormality, and the x-ray of the abdomen showed distention of the coils of upper part of small intestine.
From the x-ray it was inferred, intermittent obstruction due to sticking of the intestinal loops, which is the process, by which the body heals after any injury or surgery. In view of the x-ray finding, symptom of pain, second operation was performed on 19.11.96,due to severe adhesive between the intestinal loops, due to an accelerated healing process. This surgery was undertaken to save the life of the patient, after due discussion with the patient, and his wife. The opening of the abdomen, and examination revealed the previous site of union in the intestine was intact. But the intestinal loops, beyond this site were struck to each, could not be separated, it was likely to cause tearing of the bowel, during the process of separation, because of this reason alone, 30 inches of the bowel was resected and the ends joined, taking further steps, to prevent further adhesions. The complainant progressed well, and x-ray revealed, on 22.11.96, there was no distention of the abdomen. However, from 24.11.96, the complainant was having some abdominal discomfort, which was diagnosed as Colitis, with perforation of the large intestine, which is a rare occurrence after abdominal surgery.
11. The unexpected ailment, was treated by emergency surgery, which has nothing to do with the previous ailments. The condition of the complainant was not better, even on 28.11.96, since the abdominal distention increased further. Explaining, that there might have been leakage from the site of intestinal union of previous surgery, the abdomen was opened on 28.11.96, which indicated the complainant had peritoneal infection and inflammation on part of colon and spontaneous hole of about 5 mm in diameter, in the part of the colon called the sigmoid colon, left part of the lower abdomen. The perforation was spontaneous, due to severe infection of the colon, and not due to technical or graphical error, on the part of the 2nd opposite party. Unfortunately, the patient developed further perforations, due to continued Colitis, inspite of intensive treatment, which cannot be attributed, as alleged, carelessness, negligence or deficiency of service, on the part of the 2nd opposite party.
12. On 20.12.96, the abdominal cavity was inspected and at that time, two fresh perforations were present, in the large intestine, at a level above the previous perforation. Keeping abdomen, deliberately open, in order to allow the infected material to drain out easily, treatment was given, and thereafter it was closed completely. It was suggested, by operation, removal of perforated larger intestine to the patient, for which he was not wiling, and he himself got discharged, against medical advise, in a fit condition, though this opposite party had the intention to remove the infected portions of the large intestine. The complainant was given best care, attention and treatment, before, during and after surgeries, and the subsequent events have taken place, despite the treatment, and certainly not due to any wrong treatment, or lack of treatment. The insertion of T tube, into the intestine, is not a procedure, though practiced by many surgeon. After the complainant had been discharged from the hospital, this opposite party is not responsible for the subsequent treatment, since complainant has nothing to do with the opposite party, thereafter. In fact, the complainant has not paid to this opposite party, a single rupee, as fees from the time he was admitted, for the 2nd time. Though this commission has jurisdiction to try the complaint, in view of the complex issue of facts and law, the summary proceedings of consumer forum, may not be appropriate, and if at all it is to be decided by civil court. The complainant lodged the claim on false ground, vexatiously, claiming exorbitant amount, and therefore it is prayed, the complaint may be dismissed with exemplary cost.
13. In order to prove the respective case of the parties, affidavits were filed on their behalf, in addition to marking Ex.A1 to A6 and B1 to B17. Further the 2nd opposite party has been examined as RW1.
No doctor has been examined on behalf of the complainants, as expert witness to prove, the treatment was faulty one or to make out a case, that the opposite party had committed any medical negligence or deficiency in service, while giving treatment. They have also filed written submissions.
14. Points for determination are:
1. Whether the 1st opposite party is responsible for the alleged medical negligence or deficiency, said to have been committed by the 2nd opposite party?
2. Whether the 2nd opposite party had committed gross negligence, and deficiency professional service, during the treatment given by him, to the complainant?
3. Whether the complainant is entitled to compensation, if so, to what amount, and against which opposite party?
15. POINT NO.1 AND 2:
Mr. Karibeeran (deceased) herein after called patient, who was working as a Branch Manager, at Shalamedu Branch, in UBI, drawing a handsome salary, in those days, had some health problem, in the month of October 1996, and for checkup, he approached the 1st opposite party hospital, where he was treated by the 2nd opposite party, as consultant. Clinical examination, revealed that the patient was suffering from abdominal pain, and for further treatment, he was admitted in the hospital on 17.10.96. After taking necessary test, analyzing the test report, having endoscopic examination of the stomach, it was noticed that large intestine was normal, thus excluding any bleeding problem in them, thereby taking next step, it was found out that there was a tumor in the left lower abdomen, probably in the small intestine, for which operation was performed on 24.10.96, preceded by laparoscopic. After the removal of tumor in the small intestine, joining the intestine as prescribed, treating the patient, taking care, he was discharged on 3.11.96. The above facts are not in dispute.
16. The patient developed severe pain, for which he contacted 2nd opposite party, who advised admission for treatment, and accordingly on 16.11.96, the patient was readmitted in the 1st opposite party hospital. Examination, including the history of pain, x-ray revealed distention of coils on upper part of small intestine, diagnosed as adhesion formation, a process by which the body heals, after any injury or surgery. However the pain continued, and therefore the patient had to undergo a second operation on 19.11.96, due to severe adhesion, between the intestinal loops, due to a accelerated healing process. During the second surgery about 30 inches of bowel resected, and the ends joined.
Though the 2nd opposite party, opened the abdomen of the patient, examined/ noted the site of the union in the intestine which was intact. It seems he has not examined their larger intestine, which he ought to have examined as a prudent doctor, since the patient was complaining continuous abdomen pain, even after the 1st surgery, by laparoscopic, and mini laparatomy, where 10 cm. tumour was removed. After 2nd surgery, on 19.11.96, instead of patient being relieved from the sufferings, had increased, causing much pain, and even as admitted by the 2nd opposite party, from 24.11.96 onwards, the patient was having some abdominal discomfort, for which emergency surgery (3rd) was performed on 28.11.96, which also has not given the relief to the patient, as admitted by the 2nd opposite party in paragraph 17 & 18 of the written version.
17. The 2nd opposite party, after 2nd surgery, diagnosed the problem of the complainant as colitis, with perforation of the intestine, that means, inflammation of the large intestine, which should have occurred due to infection.
Admittedly when the complainant had come to the opposite parties, for treatment, he had no problem in the large intestine, which is also admitted by the 2nd opposite party, in paragraph 7 of the written version, which reads endoscopic examination of the stomach, and large intestine was normal. Thus excluding, any bleeding problem, however even after the removal of the tumor, which was said to be cause for bleeding and pain, perforation in the bowel occurred, necessitating an emergency surgery, on 28.11.96. Once again, on the same day, i.e on 28.11.96, at 8.50 p.m, the patient had peritoneal infection and inflammation of part of the colon, as well a hole of about 5 mm, in diameter, in the left of lower part of the abdomen. That was rectified, noting that the previous site of the intestinal union of surgery was intact and healthy. The 3rd and 4th operation also failed to give the desired effort, as expected by the patient, from the expert /specialist viz. the 2nd opposite party, even as claimed by him elaborately, in the written version. In the meantime, pus accumulated, causing further problem also.
At this stage, the 2nd opposite party, appears to have suggested 5th surgery, which is described by the 2nd opposite party, in the written version as unfortunately, the patient developed further perforation, due to continued colitis, in respective intensive treatment, further admitting, when he had inspected the abdominal cavity, two fresh perforations were seen in the large intestine, at a level above the previous perforation. In view of this development alone, in order to remove the perforated colon, an attempt was made, for further surgery, which was not acceptable to the complainant. Having lost the faith, with the opposite party, the patient got discharged from Vijaya Hospital, and admitted in Sri Ramana Surgical Clinic on 21.12.96, where he was operated on 24.12.96 for colostomy, where from he was discharged on 28.1.97. Thus it is seen, from 17.10.96 to 28.1.96, he was always under treatment, having all kind of discomfort in the abdomen, affected by septicemia, incurring heavy expenses also, to meet out the operation for the purchase of the medicine etc. By the perusal of the document later, the patient felt that only because of the medical negligence, committed by the 2nd opposite party, while doing laparascopic, he should have sustained bowel injury, which was the root cause, for al the subsequent problems.
Therefore, accusing both the opposite parties, the patient had filed the case, as said above, for the recovery of Rs. 20 lakhs.
18. Pending case the patient died, and his wife was impleaded as the legal heir of the deceased 1st complainant, as 2nd complainant. Though the 2nd complainant had come on record, as legal heir of the patient, it is not the case of the 2nd complainant, that her husband died, due to medical negligence committed by the opposite parties, by amending the complaint. Though the patient had stated in somany words, that the opposite party had committed medical negligence and deficiency in service, in the absence of such plea in the complaint, amending the same, claiming compensation for death also, it may not be possible for us, to take into consideration, the death of the 1st complainant, in order to quantify the amount of compensation, in case the 2nd complainant is entitled to any compensation, which we will discuss infra also.
19. The 1st opposite party is the hospital, whose service was utilized by the 2nd opposite party, while treating the patient admittedly.
The 1st opposite party would contend that there is no master servant relationship between themselves, and the 2nd opposite party, and therefore if the 2nd opposite party had committed any negligence, they cannot be held responsible vicariously, even taking the stand, that if at all only civil court can effectively adjudicate the dispute involved in this case. In view of the law settled, and in view of the fact, the service of the 1st opposite party was availed by the 2nd opposite party, and in view of the further fact, even for the payment of the 2nd opposite party, the amounts were collected by the 1st opposite party, we are of the considered opinion, that the 1st opposite party also should be held liable vicariously, and they cannot escape as if they have nothing to do with the service rendered by the 2nd opposite party. In fact, only on the reputation claimed by the 1st opposite party, the patient had been to the 1st opposite party hospital, and the 1st opposite party alone appears to have suggested or nominated the 2nd opposite party, as the consultant, and therefore, they cannot escape so easily, even under law.
20. The Honble High Court of Madras, in 2002 ACJ 954, as well as the Apex Court, reported in (2004) 8 SUPREME COURT CASES 56, had an occasion to consider this kind of situation.
.
In the first case, the Honble High Court of Judicature at Madras, considering the contentions of the parties therein, that the doctor is an independent consultant, and not an employee of the hospital, there was no master and servant relationship between hospital and doctor, has come to the conclusion, that doctors service have been utilized by the patient, at the instance of the hospital, and in this view, the hospital should be held vicariously liable for the negligence of the doctor, irrespective of the exact type of relationship, governing the employment of the doctor, in the hospital, which is in a way affirmed by the Apex Court in Savitha Garg (Smt) Vs. Director, National Heart Institute, reported in (2004) 8 Supreme Court Cases 56, wherein it is said distinction between contracts of service and contracts for service, cannot absolve the hospital, as it is responsible for the acts of its permanent staff, as well as staff whose service are temporarily requisitioned. It is the further dictum of the Apex Court, the hospitals, as the controlling authority, is responsible for the torts, committed by the doctor, or the medical negligence, under vicarious liability. Based upon the above decision, and considering the admitted fact, that the 2nd opposite party had attended the patient, viz.
the complainant, in the 1st opposite party hospital, while performing surgery, the said hospital is vicariously liable for the medical negligence, if any committed by the 2nd opposite party.
21. In a case of medical negligence, generally we expect expert opinion/ evidence, to assist us, in order to reach a just conclusion, since we cannot claim expertise, since not connected with medical field. Therefore, in a case of medical negligence, it is for the complainant, who alleges medical negligence, deficiency in service, to prove initially, the charge of negligence, or deficiency in service. If the complainant, who had approached the Fora/ Commission, seeking relief, on the ground of negligence, and deficiency in service, discharged the initial burden, then it will be shifted to the opposite party to disprove, who attended the patient, since the doctor, had the exclusive knowledge, about the treatments given to the patient or, the complications involved in the case though they were diligent, and efficient beyond their control. The doctor, who had treated the patient, if explained the position, that the alleged negligence/ deficiency was not due to the treatments given by him, or it would have had happened, due to inadvertence, or should have happened due to admitted complications, considering the nature of disease and treatment, then in that case, if there was no recovery, even that cannot be taken as negligence, or deficiency, warranting, punishing the doctors, who did their service to their best, directing them to pay compensation, or expenses, as the case may be.
22. Now the law is well settled A professional may held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed, or, if he did not exercise, with reasonable competence the skill which he did possess as held in Ms. Ins. Malhotra Vs. Dr. A.Kriplani & Ors. reported in 2009 (4) Supreme 319. While considering the negligence in the context of the medical profession, pertaining to criminal case, as well as torts, it is ruled In tort, it is enough for the defendant to show that the standard of care and skill attained was that f the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord wit the general and approved practice is enough to clear him of the charge. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. Three things are pertinent to be noted.
Firstly the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time (that is, the time of the incident) on which it is suggested as should have been used.
Thirdly, when it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence It is also the dictum of the Apex Court A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
23. From a layman, who has gone to a doctor for treatment, we cannot expect, expert evidence, since it is not possible for him also to adduce evidence, how the doctor-professional had committed negligence, leading to other complications or problem.
In this context alone, as held by the Apex Court, in V. Kishan Rao Vs. Nikhil Super Speciality Hospital and another, in Civil Appeal No.2641 of 2010 that the principle res ispa loquitor, comes to the aid of the sufferer, proving prima-facie the negligence, and shifting the burden to the doctor, to prove otherwise, since what he did was, within his exclusive knowledge, which was in accordance with the standard protocol to be followed or applied, by a prudent doctor, while treating the patient. In this view, it is held in the above case, In a case where negligence is evident, the principle of res ispa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
Further it is also observed in the above decision, that the evidence given by the expert, need not be accepted as such, and it is the duty of the expert to explain the technical issues, so that a common man can understand the problem, while assessing and deciding, whether the acts or omissions of the medical practitioner or the hospital, constitute negligence. Thus it is held further in most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.
24. The learned counsel for the 2nd opposite party drew our attention to a latest decision of the Apex Court, in Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & others, reported in 2010 (1) Supreme 519. Their Lordships of the Apex Court, considering the previous cases, decided by the Apex Court, regarding medical negligence, as well as available in UK and taking into consideration, the safety of the medical men also, have formulated the following principle, which we are bound to follow, and they are :
1. 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 something which a prudent and reasonable man would not do.
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.
iv.
A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonable 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 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 or 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 one available, he would not be liable if the course f 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 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 perform their duties with reasonable skill and competence and in the interest of the patient. The interest and welfare of the patients have to be paramount for the medical professionals.
Based upon the above position of law, now the case has to be scanned.
25. In order to appreciate the facts in issue, and to fix the medical negligence if any, it is necessary for us to have some idea, about the laparoscopic, laparatomy, its complication etc., as pointed out by the learned counsel for the complainants, based upon medical literature.
26. In the text book of Complications of Laparoscopic Surgery, edited by Robert W.Bailey, M.D., under the heading Gastrointestinal Injuries it is said Direct injury to the stomach or small or large intestine from laparoscopic instruments may occur during any laparoscopic procedure. These injuries often occur when the surgeon or assistant blindly inserts an instrument through one of the laparoscopic cannulas. The vast majority of laparoscopic instruments are either 5 or 10 mm in diameter and can easily puncture most visceral structures. This complication typically occurs as a result of an instrument being rapidly introduced outside of the limited view afforded by the video laparoscope.
27. In the text book of Surgical Laparoscopy, by C. Palanivelu, catalogues general complications, in the case of laparoscope, which includes bowel injuries also, not denied by the 2nd opposite party, as RW1. Under the heading bowel injury, in the said book, it is said Bowel injuries most frequently involve the small intestines, followed in frequency by the colon, duodenum and stomach. These injuries may be unrecognized at the time of surgery and present with a mortality of 5%. Direct injury can be caused by the Veress needle or by operating trocars. This is particularly significant in patients with abdominal wall hernias or prior surgery. Bowel perforation requires immediate laparotomy for repair of the injury.
It is further stated Carelessness and over confidence can cause trocar injury.
Even with enough clinical experience, I had 3 trocar injuries all happened recently, after many thousands of cases.
28. At page 92 of the said text book, it is observed The recognition of complication of access during laparoscopic surgery requires a meticulous protocol and should be observed irrespective of the method that is used.
At the initial trocar insertion, the surgeon should ensure that all vital structures are viewed before the actual laparoscopic procedure. Once the primary trocar is inserted (blind insertion), prior to connection of the CO2 supply tube, the surgeon should introduce the laparoscope and visualize the areas likely to be injured. In addition to vascular injury, the surgeon should carefully examine the viscera or bowel for injury. The most significant posterior abdominal wall injuries and visceral or bowel injury can be detected with the careful initial inspection.
It is further stated In case of repair of bowel or control of bleeding, a drain is placed that can give early warning of the presence of post operative complications.
further indicating Laparoscopic bowel injuries are often undetected during surgery and are diagnosed in the postoperative period with evidence of peritonitis or perforation. High index of suspicion is appropriate when recovery from a laparoscopic operation appears to be unduly delayed or develop complications. Investigations ( Ultrasound CT), and relaparoscopy are necessary.
29. On the above said principle, now the procedure followed by the 2nd opposite party has to be seen, with reference to pleadings, and documents.
30. The learned counsel for the complainant, has urged before us, while doing laparoscopy, it should have caused internal injury, which alone had caused abnormal distention, and pain, which was neglected to be seen by the 2nd opposite party, adopting proper care, which should be construed as first negligence. It is the further submission of the learned counsel, that when there was symptom and clinical examination revealed, bowel injury, then the abdomen should have been opened, instead of minor laparotomy, and in this case, though the 2nd opposite party opened the abdomen, for removing the adhesion,omitted and failed to explore the entire intestine, in order to locate the internal injury, that should have been caused, while doing laparoscopy, which according to him is the 2nd negligence. A further submission was made, that as admitted by the 2nd opposite party, that the walls of intestine struck together, and fearing to separate or split, which would cause tearing of the intestine, it was decided to remove that segment only, causing paralytic ileus, infection, since even at that time, the 2nd opposite party failed to explore for any infection in the intestine. According to him, the 2nd opposite party neglected to see, even the paralytic ileus surfaced, and that should have been caused obviously, by the injury in the bowel, due to laparascopic, which is in accordance with the text also, as quoted above.
31. On 24.11.96, when the 2nd opposite party opened the abdomen, he had noticed two perforations, that was also not completely cured, causing further perforation, and for all these continuous problem in the larger intestine, the laparoscopic injury must be the cause, that should be construed as medical negligence, and deficiency in service. In this context we have to see, how the 2nd opposite party diagnosed the problem, and what was the, condition of the patient when he left the 2nd opposite party, to Sri Ramana Surgical Clinic.
32. As seen from the discharge summary of the patient, after his admission on 17.10.96, his problem was diagnosed as
1. Small bowel leiomyoma excised
2. G.I. Tract bleeding
3. Secondary anaemia
4. DNS (left) Allergic Rhino Sinusitis
33. During the 2nd stay in the 1st opposite party, treatment was given from 16.11.96 to 21.12.96, for which a hand written discharge summary was given (Ex.A3), for which we find from the opposite party records, a detailed discharge summary, at page 20 of the 2nd typeset, which does not tally.
Therefore, the submission of the learned counsel for complainant, that the typed discharge summary, should have been prepared, to cover the lapses committed by the 2nd opposite part, stands to the reason to believe, because of the absence of those particulars in Ex.A3.
34. After discharge from Vijaya Health Centre on 21.12.96, immediately the patient had been taken to Sri Ramana Surgical Clinic, and he was treated by Professor N. Rangabashyam, who had issued a certificate dt.28.1.97, which exposes the medical negligence, committed by the 2nd opposite party, and how he failed to treat the perforation, taking care at the initial stage itself, leading to septicemia and multiple organ failure. We quote the discharge summary of Prof. N.Rangabashyam, hereunder:
Mr. Karibeeran, 43 years, was admitted on 21.12.96, with septicemia and evidence of multiple organs failure as a result of fecal peritonitis. He was operated elsewhere. He had peritoneal toileting and diversion Colostomy.
Subsequently he had repeated peritoneal toileting and intestinal T-Tube intubation was done to decompress the intestine.
Now he is stablilized apyrexic and the colostomy is working well He requires another six months rest before fit to join duty.
35. Thus it is clearly established, when the patient had left the opposite parties, he had all kind of problems, and that things will speak itself, about the medical negligence, as ruled by the Apex Court, quoted supra, and principle if res ipsa loquitor, coming to the aid of the complainant. Therefore it is for the 1st ad 2nd opposite party to explain, how the patient was suffering from septicemia, and how multiple organ failure resulted, due to fecal peritonitis, for which we find nil evidence, even from the mouth of the 2nd opposite party.
36. The 2nd opposite party, as RW1, would admit, that the pathological report, revealed that patient had bleeding in the intestine, which cannot be stopped clinically. He had explained the purpose of laparoscopic, and in this case, admitting that laparoscopy, did not really helped him, in locating the exact spot of tumor, whereas that was located only by nuclear scan. It is also admitted by RW1, as reported in the text, it is possible that during laparoscopy procedure there could be damage caused to a portion of the area. By doing the minor laparotom,y I located the tumour and removed it. Though he would assert laparoscopy did not puncture the large intestine of the patient, and he was not the cause, he was unable to explain how large intestine had sustained injury. In view of the admitted complication, that injury is possible, while doing laparoscopic, in view of the admitted fact, that the patient had undergone laparoscopic, not yielding result, complicating the problem, we are constrained to infer that, because of the laparoscopic procedure adopted by the 2nd opposite party alone, the patient would have sustained bowel injury, leading to other admitted further complication, deteriorating the health of the patient, leading to by multi organ failure, for which we are of the opinion, the 2nd opposite party should be held responsible, since he failed as a prudent and skilled doctor, to find out the injury, atleast when he had opened the abdomen, at later stage. If he had bestowed some more attention, which was expected from this kind of highly qualified doctor, when the patient came to him second time the patient would have been saved, and problem would have been avoided, which he failed in our considered opinion, which can be seen even from his own testimony.
37. He admits, after second surgery, patient had usual complaint of pain, and because of the paralytic ileuse i.e., paralysis of the intestine, not causing propulsion of the intestine contents. It is also admitted by RW1, though he ruled out the mechanical obstruction during the surgery, the prolonged paralytic ileus was not cured, and infact no tube was inserted for drainage, which is adopted by some doctors, but RW1 would say it is not necessary, admitting collection of fluid, which was treated/ drained otherwise.
On the other hand, he would say at that point of time, there was no infection, and therefore no drain was considered essential or necessary, which appears to be factually incorrect, even as per the medical records, maintained by them. The fluid collected was consequent to perforation and turbid fluid was, due to colonic perforation and peritoneal irritation thereof. If there was a drain, the problem would have solved in the initial stage, and atleast sepsis would have been avoided, since it is admitted by RW1, that the patient was suffering from abdominal sepsis, and not septicemia, which is also incorrect as per the certificate issued by Professor N.Rangabashyam, which we have quoted above. Admittedly, within 64 days or so, the 2nd opposite party had performed 6 surgeries, and none of the surgery had given the relief required.
As rightly submitted by the learned counsel for complainant, the 2nd opposite party instead of going for laparatomy, immediately after the second complaint, had done minor laparotomy, even failing to provide catheter or drain pipe, which should have caused perforation, which occurred in the intestine, for which we feel empathetically based upon record, the 2nd opposite party should be held responsible.
38. The process of adhesion is admitted by the 2nd opposite party, as seen from written version, as well in the cross examination, as if that may be either due to healing process, or due to infection. If the adhesion was due to healing, it will be called as bread and butter adhesion, where the tissues can easily he separated.
As admitted by RW1, in the case of the patient, that the walls of intestine struck together, and if any attempt had been made to split, that would cause tearing, thereby indicating this adhesion was only due to infection, and atleast at that stage, the 2nd opposite party ought to have explored the abdomen for an injury, which should be the source of infection and for cause of adhesion, which he failed, not explained, and in this view, taking this act of the 2nd opposite party also as medical negligence, he can be faulted.
39. The text reveals paralytic ileus can also be caused due to infection. In this case, even as per the first discharge certificate, the complainant had prolonged the period of paralytic ileus. Though the 2nd opposite party, treated the symptom, as admitted by him, by removing the mechanical obstruction, by introducing gastro griffin Para fuse method, but not treated the cause, or gave any medicine to revive the intestine, to restore the wave movement, thereby as rightly claimed, we should conclude that the second opposite party had not acted, as one expected from his rich experience, which also should show, that he has failed in giving proper standard treatment to the patient, who approached him with trust and confidence, that his ailment will be relieved.
40. In a case of this nature, when the patient had more complication, which was not brought under control, despite the effort taken by the 2nd opposite party in the ordinary course, he should have sought for the second opinion, which he failed, though the record reveals that he had sought for the opinion of ENT and other doctors.
41. The 2nd discharge certificate viz. Ex.A3 says, patient is discharged at his own request, for further treatment elsewhere, patients condition at discharge good, thereby showing the doctor who attended viz. the 2nd opposite party, has not reflected the correct health condition of the patient also, thereby enabling him to continue the treatment elsewhere, without any problem, which was sought to be modified by improving the discharge certificate, as seen from other documents, which we have referred above. But Ex.A3, discharge certificate proved to be false, by Ex.A5, which says, that the patient was admitted with septicemia and evidence of multiple organ failure, as a result of feacal peritonitis, since he was operated elsewhere, thereby we can say, even the opposite parties have attempted to suppress in the record, the condition of the patient, since it was deteriorating, probably, in order to escape from the negligence, which they have committed, and in this view also, we are inclined to find fault, with the treatment given by the opposite parties, as well as in maintaining the records.
42. In the records maintained by the 2nd opposite party, nowhere, to our knowledge, it is said that they have examined the abdomen in entirerity, in order to find out the continuous problem, though not, at the first instance, atleast at later stage, whereas it would reveal that the second party had not gone, beyond the point of surgery, forgetting the fact, that laproscopy was performed, which would have possibly caused some injury, to the bowel, as should have expected from an experienced doctor, if he had find out the bowel injury, which is the main cause for the subsequent problem, immediately after the exploratory laproscopic surgery on 24.10.96 or atlast during the second surgery, the patient would not have been reduced to 34 kgs. as pleaded from 78 Kgs., thereby immobilizing him, advising him to take rest, more or less continuously, even unable to join duty, after treatment, from Professor N. Rangabashyam, who has advised 6 months rest. Because of the bowel inujury, which was not treated properly, finding out the real cause, and its removal, we are of the considered opinion, that the 2nd opposite party, though had performed five surgeries or so, failed to control causes, which were caused, due to bowel injuries, leading go septicemia and multi organ failure, and at later stage, causing death also, which was not so pleaded by amending the complaint, but we can infer that these complications alone, caused death of the patient, in this case.
43. As seen from the written version, as well as from the written arguments, it is the case of the 2nd opposite party, that the patient was severe anemia, which was not diagnosed previously, that should have been caused due to steady bleeding into the intestine, which was caused by tumor in the small intestine. We appreciate the 2nd opposite party, for proper diagnosis at the first stage, but unfortunately he continued to be so. Assuming that the patient was an anemic, the bleeding was not profusely, and at some point of time, there was no bleeding also, as disclosed by motion test, which proved negative. Therefore, even we can say, there was no urgency for emergency operation or that may not be the cause for the subsequent deterioration of the health.
44. The treatment given by the 2nd opposite party, in removing the tumour, as well releasing the adhesion are not faulted, as far as the small intestine is concerned. Admittedly, the patient developed perforation of the large intestine, and the cause has not been explained by the 2nd opposite party, whereas he also would say unexpectedly. Without finding out the real cause, the treatment given by the 2nd opposite party, repeated intervention has not benefited the patient, and this may also be taken as negligence.
45. As ruled by the Apex Court, when the complainant had prima-facie proved about the negligence of the 2nd opposite party, and not only that his condition became worse day by day, then it is for the 2nd opposite party to make out a case, that the treatment given by him was proper, and the role played by him, has nothing to do with the deterioration of the health of the patient, for which we do not have any evidence. Even in the decision, relied on by the 2nd opposite party, it is observed, a medical practitioner would be liable, where his conduct fell below the standard, which had happened in this case, since the 2nd opposite party failed to bring, a reasonable degree of skill, and its exercise, while doing laparoscopic, as well as the subsequent operations. For all the reasons recorded above, having regar to the facts and circumstances of the case also, we conclude that the 2nd opposite party had committed medical negligence, as well as deficiency in service, while treating the 1st complainant, for which both opposite parties should be held responsible, answering these points in the affirmative.
46. POINT NO.3 The deceased complainant had claimed a sum of RS.20 lakhs as compensation, for which no details / plea are available in the complaint. But, the learned counsel for complainant urged before us, that the death was due to the improper negligent treatment, given by the 2nd opposite party, and in this view, taking the salary of the 1st complainant, even adopting multiplier method, as available in Road accidents claim, loss should be calculated.
In the beginning itself, we have pointed out, that the complaint was not amended, including the reasons, for the death, as well as changing the claim, based upon death, and in the absence of such plea, we are declined to adopt multiplier or take into consideration, the salary of the deceased, in order to ascertain the total compensation, as well as the dependency of the 2nd complainant, who is a widow. Admittedly, from 17.10.96 to 3.11.96, the patient was treated as inpatient, and thereafter readmission was made on 16.11.96, and discharged on 21.12.96. Thereafter, admitted in Sri Ramana Surgical Clinic, for rectification of the problems caused by 2nd opposite party, and discharged on 28.1.97. Taking these period, and the suffering undergone by the patient, as well as the probable expenses, for the purchase of medicine, and the payments, as in patient, for hospital, we have to decide the quantum, and not on the basis of the salary drawn by the deceased or on the basis of the 2nd complainants, suffering due to the death of the 1st complainant, being the husband. Considering the nature of disease, treatment and the amount spent, as per the records produced before us, and the period of hospitalization, suffering undergone by the complainants, as well negligence on the part of the 2nd opposite party, and deficiency in service, in not adopting the expected stand and care of treatment, from the opposite parties, we are inclined to allow a sum of Rs.3,00,000/- for medical expenses, and a further sum of Rs.7,00,000/- towards medical negligence, and deficiency in service, thus totaling a sum of Rs.10,00,000/-, alongwith cost of Rs.10000/-, which should be paid jointly and severally by both opposite parties, answering this point accordingly.
47. In the result, the complaint is allowed in part. The opposite parties are, jointly and severally directed to pay a sum of Rs.10,00,000/- (Rupees ten lakhs) towards medical expenses, and compensation as referred above, alongwith cost of Rs.10000/-. Time for payment three months, failing which the amount so awarded, shall carry interest @9%, p.a., from the date of failure, till payment. Rest of the claim is dismissed S.SAMBANDAM M. THANIKACHALAM MEMBER II PRESIDENT Exhibits of the complainant A1 Bills and receipts concerning admission and treatment of the complainant at Vijaya Health Centre A2 Discharge summary report by 2nd opposite party A3 Discharge report by 1st opposite party, concerning the second admission and treatment given to the complainant A4 Bills and receipts concerning treatment of the complainant with Dr.Rangabashyam at Sri Ramana Surgical Clinical A5 Certificate by Dr. Rangabashyam after treatment of the complainant at Sri Ramana Surgical Clinic during first admission A6 Photographs of the complainant Exhibits of the opposite parties B1 April 96 to January 97 Ledger Extract B2 February 97 March 1997 Ledger extract B3 02.03.2006 Receipt No.HR19863 B4 02.03.2006 Receipt No.HR21339 B5 02.03.2006 Receipt No.HR21902 B6 Case sheets, admission slip, etc B7 18.10.1996 Colonoscopy report B8 02.11.1996 Medical certificate issued by 1st OP B9 24.10.1996 Blood Group report B10 17.10.1996 Discharge summary B11 Doctors notes and abdominal girth chart B12 Investigation Chart B13 Graphic chart B14 Post operative nursing chart B15 Pre-operative check B16 Post-operative nursing chart B17 Lab reports
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Examination of witness For complainants : Nil For opposite parties:
RW1: Dr. Hariharan, 2nd opposite party S.SAMBANDAM M. THANIKACHALAM MEMBER II PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/OP otder