State Consumer Disputes Redressal Commission
1. C. Parthiban, S/O Coummarasamy, 2. S. ... vs Dr. Latha Chatruvedula, Gunecology ... on 3 May, 2023
1
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION AT PUDUCHERRY
Dated this the 3rd day of May 2023
Consumer Complaint No.02/2017
1.C.Parthiban
S/o.Coummarasamy,
2.S. Jayanthi
W/o.Parthiban
Both residing at No.71,
Perumal Koil Street,
Pondicherry.
... Complainants
Vs
1. Dr. Latha Chaturvedula
Gynecology Department,
Unit-III, JIPMER Hospital,
Dhanvanthri Nagar,
Gorimedu,
Puducherry.
2. The Director,
JIPMER Hospital,
JIPMER Campus,
Dhanvanthri Nagar,
Gorimedu,
Puducherry. .. Opposite Parties
2
BEFORE:
HON'BLE THIRU JUSTICE R. PONGIAPPAN
PRESIDENT
DR.S.SUNDARAVADIVELU,
MEMBER
TMT.S. OUMASANGUERY,
MEMBER
FOR THE COMPLAINANTS
Tvl.M.Govinda Thirunavukarasu, D.Reena Iswariya, Advocates
FOR THE OPPOSITE PARTIES 1 and 2
Thiru.L.Annadoure, Advocate
O R D E R
(By Dr.S. SUNDARAVADVELU, Member) This complaint has been filed by the complainants against the Opposite parties under section 14 and 17 of Consumer Protection Act, herein after called the CP Act, alleging negligence in treating their daughter Ms. P.Sri Raja Rajeswari (hereinafter referred as the patient) resulting in her untimely death. The complainants have sought Rs.99,99,999 towards damages from the Opposite parties on account of loss of life, shock and mental agony and cost of the complaint.
3Gist of the complaint is as follows:
2. The complainants are the parents of the patient who was their only child.
The child was brought up with abundant love and affection. After getting B.Tech degree in computer science, she got employment in M/s Amazon Development Centre India at Bangalore as Catalog assistant and drawing a salary of Rs.20,238 per month as total emoluments. While being at Bangalore, one day she suddenly developed severe collywobbles and she was taken to the local physician who advised for a medical check-up in a multi speciality hospital. Therefore the complainant brought his daughter to Pondicherry and took her for treatment to the 2nd Opposite party hospital on 02.12.2015.The patient was examined by the 1st Opposite party who was heading the Unit III of Gynaecology Department. She was advised some clinical tests like blood investigation X-Ray, Scan and advised to visit on 23.12.2015.On 23.12.2015, after examining the test reports ,the Opposite party 1 informed that the patient, Ms.Sri Raja Rajeswari has developed an ovarian cyst and it has to be removed by a simple surgery. The op1 was informed about the medical history of the patient including the surgery for appendicitis conducted when she was 9 years old. The date of surgery was fixed as 28.12.2015.
3. On 28.12.2015, the patient was admitted as inpatient and surgery was performed. The complainants were not informed as to the type of surgery 4 proposed to be conducted before the surgery. Later they came to know that Laparoscopic procedure was conducted on their daughter. Next day i.e on 29.12.2015, the patient was discharged without prescribing any medicines. On reaching home, the patient complained of severe stomach pain and vomiting and loose motion. The complainants and their daughter visited the Opposite party no.1 on 30.12.2015 and the Opposite party 1opined that it is only a pain consequent to the surgery and she was imagining because of the surgery and nothing to worry. No tests were conducted on the patient inspite of the complaint of severe pain and loose motion.
4. They visited JIPMER again on 31.12.2015 however the Opposite party no.1 could not be met. Due to increasing pain, loose motion and abdominal distension ,they visited JIPMER again on 08.01.2016 and 09.01.2016. No tests were conducted and no care was taken. On 20.01.2016 +some unusual material was found oozing out from the surgical wound and the patient was immediately rushed to the Opposite party hospital. She was subjected to several tests and it was found that the material that oozed from the surgical wound was faecal matter and she had developed Peritonitis as a complication of the surgery done on 28.12.2015.The patient was admitted in the Opposite party hospital and another emergency surgery was performed whose details were not disclosed to the complainants. After the surgery, ,the patient was kept in ICU but 5 on 21.1.2016, the complainants were informed that bp was drastically going down and it is not a good sign. On 21.01.2016, at 11.00 am, their daughter, the patient, Ms Sri Raja Rajeswari expired. (Date of death has been mentioned wrongly as 21.01.2016 instead of 22.01.2016.) On account of the sudden death of her only daughter, the complainant 2 went into shock and depression and is under treatment with a psychiatrist. Due to the lack of care and chronic negligence of the opposite parties the complainants have suffered mental agony, shock, loss of love and affection and hence this complaint.
5. Opposite party 1 filed reply version which was adopted by the Opposite party 2 also. In the reply version they denied the allegations made in the complaint by the complainants and set out their defence as follows:
The complaint is based on conjectures and misrepresentations. The patient has taken treatment in private hospital in Bangalore and Apollo Hospital ,Chennai for severe collywobbles and those hospitals have not been impleaded as parties.
She attended Obstetrics and Gynaecology Unit III on 2.12.2015 with Hospital patient no G- 400408 with history of Irritable Bowel Syndrome and was already under medication for four months and she was diagnosed for Ovarian Dermoid cyst on ultrasound done outside. She was having history of appendectomy 14 years back. Since the cyst was a benign tumour it was discussed with the relatives that Laparoscopic cystectomy could be performed. Accordingly after getting 6 necessary consent, the surgery was performed on 28.12.2015 on Out patient basis.
Intra-operatively there were filmy adhesions between the anterior abdominal wall and bowel which were minimally released so as to avoid any soft tissue injury.No intra operative complications were identified and the specimen of cystectomy was shown to the mother of the patient- the complainant 2 and the procedure was explained. When the patient came on 30.12.2015 for review she was found to be normal and analgesics were given for pain and there were no symptoms warranting any investigation. On 31.12.2015, Miss.Sri Raja Rajeswari reported with complaints of loose motion and vomiting. She was examined and found to be stable and therefore advised to take Oral Rehydration Solution and symptomatic treatment.
6. When the patient came back on 08.01.2016 with complaint of loose motion, she was asked to take surgery opinion in JIPMER which was not taken by her. Next day ie on 09.01.2016 , ultrasound test was performed and no abnormalities detected. At that time also ,she was advised to go to Surgery department for opinion which she did not seek.
7. The patient came back only on 20.01.2016 and was said to have had persistent abdominal pain all these days and she had apparently subjected herself to treatment with one Dr.Karthikeyan ,a surgical gastroenterologist who is understood to have done many scans on her and found everything normal. The symptoms 7 could have ensued owing to Irritable Bowel Syndrome. The patient was sent to Surgery dept for opinion along with a Senior Nursing Sister and simultaneously she was admitted for evaluation. She looked pale and dehydrated but there was no evidence of any abdominal signs. She was stable throughout. Blood investigation results were within normal limits except Haemoglobin which was 4.3% which indicates evidence of iron deficiency anaemia. Ultrasound was repeated and found to be normal. On 21.01.2016 at around 7.30 am the patient had complained of discharge from the scar site and it was diagnosed as fecal fistula. On the basis of surgery opinion, laparotomy was planned and the father and relatives were elaborately explained that colostomy was necessary and about the possibility of post operative sepsis. After getting free consent, resection of caecum and ileostomy was done on 21.01.2016.The patient was stable intra-operatively and postoperatively and she was kept in ICU but unfortunately she went into septicaemia soon after surgery and health deteriorated from which she didn't recover and the patient expired on 22.01.2016 at 10.46 am.
8. The opposite party further stated JIPMER is one among the Institutes of National importance and a premier institute and had condescended to ( para
28)take up the case and did all necessary investigation and requisite surgery was done by a team of doctors who are experts in the field with utmost care and concern .The patient was advised for open surgery immediately for her ailment but 8 she was reluctant due to social stigmatisation and the patient and relatives themselves entreated to do laparoscopic cystectomy.
9. The Opposite party 1 was the head of the team of doctors who performed surgery and a professor of the Department of Gynaecology in the Institute and she was well aware of the complications of the surgery and also post operative complications. Hence the patient was advised to come for regular follow up treatment and there was no negligence on the part of Opposite parties. Best efforts and skill was exercised in treating the patient and all pre- operative and post operative care was taken with appropriate standard medical treatment taking into consideration the patient's previous surgery. The patient was advised to take surgery opinion on 8.01.2016 and 9.01.2016 but had not followed this advice.
11. The complainants examined themselves as witnesses CW1and CW4 and marked exhibits C1 to C18, besides two doctors were examined as witnesses CW2 and CW3. On the opposite party side, Opposite party No. 1 examined herself as RW1 and marked exhibits R1 and R2. Associate Professor in the OG department was examined as RW2.
12. Both sides made oral arguments and presented written arguments with copious citations .
13. In her arguments the counsel for the complainant presented the following citations:
9
1. State of Haryana and Another Vs. Jasbir Kaur & others - Appeal (Civil) No.5523 of 2003, dated 05.08.2003 - Hon'ble Supreme Court of India.
2. Neena Aneja Vs. Jai Prakash Associates Ltd., - Civil Appeal Nos.3766-3767 of 2020, dated 16.03.2021 - Hon'ble Supreme Court of India.
3 Sir Dipak Ranjan Sen. , Managing Director, Peak Chemical Industries Ltd., Vs. Managing Director and Directors of Suraksha Diagnostic & Eye - Case No.SC/72/0/2001, dated 28.03.2012 - State Commission. West Bengal.
4. Dr.Stepheena, Fathima Mata Mission Hospital, & Another Vs. Lilly Joseph -
Revision Petition No.2568 of 2012 , dated 10.12.2014- Hon'ble National Commission, New Delhi.
5. Oriental Fire and Genl. Insurance Co. Vs. P.P.Misri and others - Dated 11.10.1991 - Kerala High Court.
6. Rajkot Municipal Corporation Vs. Manjulben Jayantilal Nakun & Others - dated 17.01.1997 - Hon'ble Supreme Court of India.
7. A.S.Mittal & others Vs. State of UP & Others , dated 12.05.1989 - Hon'ble Supreme Court of India.
8. Indian Medical Association Vs. V.P.Shantha & Others - dated 13.11.1995 - Hon'ble Supreme Court of India.
9. State of Haryana & others Vs. Smt. Santra- dated 24.04.2000 - Hon'ble Supreme Court of India.
10.Queen's Bench Division, England - Bolam Vs. Friern Hospital Management Committee - February 20,21,22,25, 26, 1957.
11. M/s.Spring Meadows Hospital & Another Vs. Harjol Ahluwalia rep. through K.S. Ahulwalia & Another - Dated 25.03.1998 - Hon'ble Supreme Court of India.
12. Nizam's Institute of Medical Sciences V. Prasanth S.Dhananka & Others - Civil Appeal No.4119 of 1999, dated 14.05.2009 - Hon'ble Supreme Court of India.
10
13. L.Sunil Reddy and others Vs. Managing Director, Rohini Hospital and another - Revision Petition No.1222 of 2003 , dated 18.03.2005 - Hon'ble National Commission, New Delhi.
14. Ms.Neha Kumari, D/oShri Amar Vs. Apollo Hospitals, Dr.R.Gopal - dated 27.11.2002 - Hon'ble National Commission, New Delhi.
15. Basant Seth & Another Vs/ Regency Hospital Ltd - Original Petition No.99 of 1994 , dated 22.01.2002 - Hon'ble National Commission, New Delhi.
16. State of Haryana & Others Vs. Raja Rani - Appeal (Civil) No.2743 of 2002, dated 29.08.2005 - Hon'ble Supreme Court of India.
17.Arun Kumar Agarwal and another Vs. National Insurance Company Ltd., & others - Civil Appeal No.5843 of 2010, dated 22.07.2010 - Hon'ble Supreme Court of India.
18. National Insurance Co. Ltd., Vs. Minor Deepika and three others - CMA No.3049 of 2004, dated 27.04.2009 - Madras High Court.
19. Mrs.Arpana Dutta Vs. Apollo Hospitals Enterprises Ltd., and another , dated 18.02.2000 - Madras High Court.
20. Erudhaya Priya Vs. State Express Transport - Civil Appeal Nos.2811-2812 of 2020, dated 27.07.2020 - Hon'ble Supreme Court of India.
21. Jagdish Vs. Mohan - Civil Appeal No.2217 of 2018, dated 06.03.2018 - Hon'ble Supreme Court of India.
22. K.R.Madhusudan & Others Vs. Administrative Officer and another - Civil Appeal No.1923-1924 of 2011, dated 18.02.2011- Hon'ble Supreme Court of India.
14. Per contra, the counsel for the Opposite parties would argue with following citations:
1. Bitoni & Anr. Vs. Satya Narain Chauhan & Anr - 2007-STPL 5538 NC 11
2. Pravinbhai Naranbhai Sonara Vs. Kesar Sal Hospital - Appeal No.1055 of 2013. Dt. 13.12.2021.
3. Dr.Shankerlal Lahoti, MBBS, Vs. Naseemunnisa Begam , D/o.Md.Taha, Hon'ble State Consumer Disputes Redressal Commission at Hydrabad in FA No.01/2011.
4. Kishori Lal Vs. ESI Corporation - II (2007) CPJ 25(SC)
5. Indian Medical Association Vs. V.P.Shantha - (1995) 6 SCC 651
6. Jacob Mathew Vs. State of Punjab and another (2005) SCC (Crl.) 1369
7. M.A. Ganesh Rao Vs. Dr.T.M.A. Pai Rotar Hospital & Ors. 2007 STPL 131 NC National Consumer Disputes Redressal Commission, New Delhi.
8. Amarnath Kakkar Vs. Escorts Hearet Institute and Research Centre Ltd., - CC No.270 of 2001, dated 10.09.2015 (Reported in 2015 STPL- 10154 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION )
9. Satya Prakash Pant Vs. Dr.P.N.Joshi and another - First Appeal No.257 of 2010 dated 06.05.2015 (Reported in 015 STPL 5546 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION)
10. Madaan Surgical and Maternity Hospital & Another Vs. Santhosh and another - Revision Petition No.3527 of 2012 dated 17.05.2012 (reported in 2014 STPL 7243 NC)
11. K.J.Nijhawan and another Vs. Sir Ganga Ram Hospital and others - First Appeal No.511 of 2003 dated 11.06.2003 (reported in 2009 STPL 11141 NC)
12. Raj Kumar Gupta and others Vs. P.S.Hardia (Dr.) and another - Original Petition No.11 of 1997, dated 19.01.2007 (Reported in 2007 STPL 3287 NC)
13. M.A.Ganesh Rao Vs. Dr.T.M.A.Pai Rotary Hospital & Others - First Appeal No.62 of 2006, dated 11.10.2006 (Reported in 2007 STPL 1318 NC)
14. Sr.M.R.Virupakasha Vs. M/s.Wockhardt Hospital and Heart Institute - First Appeal No.4 of 2007, dated 24.11.2006 (reported in 2013 STPL 7277NC) 12
15. Mool Chand Khairati Ram Hospital and Ayurvedic Research Institute & another in First Appeal No.233 of 2007,dated 19.12.2006 (reported in 2013 STPL 313 NC)
16. B.Shyam Sunder Raj (Dr) Vs. M.Pandarinath in Revision Petition No.3651 of 2007 and Revision petition no.101 of 2008 (Reported in 2012 STPL 6298 NC)
17. Raj Bhalla Vs. Vimhans - Complaint Case No.111 of 2002, dated 15.09.2009 (Reported in 2009 STPL 15896NC)
18. Shrinath Chaturvedi Vs. G.S.Ambardkar (Dr.) and others - Original Petition No.252 of 1993, dated 26.03.2009 (reported in 2009 STPL 7391 NC)
19. Manju Garg Vs. Goel Hospital & Another - Original Petition No.68 of 1994 dated 07.04.2005 - Hon'ble National Commission, New Delhi.
20.T.V.Sukumaran Vs. Joy K.Cheriyan (Dr.) - First Appeal No.192 of 1997, dated 13.12.2005 - Hon'ble National Commission, New Delhi.
15. In the arguments, the counsel for the complainants has made the following submissions.
Duty of care of a doctor starts from the time he / she accepts the patient for treatment. The patient had undergone appendectomy operation when she was 9 years of age. This was recorded by the op 1 in the case record. In cases of earlier surgery there is every possibility of development of adhesions increasing the chances of injury to other organs in the course of surgery. But the op 1 ignored the past history and conducted herself negligently and callously. Reasonable skill expected of her was not exhibited while conducting the Laparoscopy as a resu, The surgery was botched up and caecum was injured leading to peritonitis , septicemia 13 and ultimately death. The Rw1 has made candid admissions in her deposition. The complaint is not hit by non joinder of necessary parties.Ecg machine was not working and variation in blood count could be due to some errors in the machine. Due post operative care was not given JIPMER hospital is also vicariously liable for the negligence of the op 1.Future prospects of the patient at the time of death should also be taken into account for awarding compensation.
16. In his written arguments the counsel for the opposite parties stated that the complainants had fraudulently mentioned the monthly income of the patient as Rs.4000 while taking treatment whereas while claiming compensation the income is stated to be RS.20338 per month. The complaint is not maintainable against JIPMER being an institution of national importance providing free treatment to the patient. Cases of medical negligence has to be considered in the light of the guidelines laid by the Hon'ble Supreme Court. Professor Dr.Latha who performed surgery is an expert in the field of gynecology and a highly skilled professional and trained to handle laparoscope and perform surgeries. She has been doing laparoscopy procedure since 1995 and handling classes for undergraduate and postgraduate students. On an average 4 to 5 major laparoscopic procedures are performed in a month. Laparoscopy was performed on the patient on 28 .12.2015 by a team of three doctors headed by the Opposite party no.1 and the other doctors were Dr. Sasirekha who was an associate professor of gynecology and 14 Dr.Nasareen. Opposite party 1 has all the awareness and knowledge of new advanced discoveries and developments in her field. The Opposite party 1 had advised the patient to take the opinion of doctors in surgery so as to ascertain the state of affectation. The victim girl without complying with the advice and direction had straight away come to the first Opposite party for treatment. During laparatomy second surgery it was found that there was perforation on caecum and the damaged portion was removed and necessary procedure was done to set it right. Caecum is on the upper part about 5 to 7 cm above the ovaries and therefore there is no possibility not probability of caecum being injured while performing the laparoscopic surgery. While doing cauterisation using guarded bipolar diathermy probe at the ovaries there is no possibility of causing injury to the caecum and the bipolar diathermy probe is found to be effective in localising the source of bleeding. The patient left the JIPMER hospital on 28.1.2015 against the advice of the doctors. The allegation that JIPMER hospital is lacking in infrastructure and the instruments used in the surgery were not sterilized is denied. The patient was taking treatment at Bangalore, Apollo hospital Chennai. CW.2 Dr. R.Karthikeyan and Dr.Narayan in Puducherry were also treating her. The other doctors and hospitals should also have been impleaded as party to the proceeding. The claim has not been substantiated with proof of any credible documents or medical literature. Evidence of CW.2 and CW.3 do not support the case of the 15 complainants .The complainant ought to have examined any experts in the field or ought to have referred the case to a medical board of experts for their expert opinion. The complainants have failed to prove each and every allegation of negligence. The complainants had insisted on performing laparoscopic cystectomy with a false sense of modesty lest the scars of open surgery should remain on their unmarried daughter and had chosen to do laparoscopic cystectomy.
17. After careful consideration of the evidences presented and arguments made and presented in written form.
The following issues were framed for consideration.
1. Whether the complainants are consumers under the CP Act and whether the complaint is maintainable against JIPMER as JIPMER is an institution of National Importance established by an Act of Parliament?
2. Whether the patient Ms.Sri Raja Rajeswari was given treatment as per protocol and guidelines without any deficiency or negligence?
3. If there was negligence or deficiency, what is the compensation to be given to the complainants?
4. To what other relief the complainants are entitled? 16
18. Issue No.1.
Whether the complainants are consumers under the CP Act and whether the complaint is maintainable against JIPMER as JIPMER is an institution of National Importance established by an Act of Parliament.
19. The Opposite party No.1 in her reply version and the Learned Counsel for the Opposite parties in his arguments stated that JIPMER was declared an institution of national importance by Parliament by way of Jawaharlal Institute of Post -Graduate Medical Education and Research, Pondicherry Act, 2008. JIPMER conducts a number of medical, nursing and paramedical courses. Research is conducted on various disciplines of medicine and public health. As per Section 13
(n) of JIPMER Act one of the functions of the institute is to provide free treatment to the poor patients. So the institute renders service free of cost to the patients irrespective of their station in life .In the case of deceased patient Sri Raja Rajeswari, the treatment was provided free of cost. As JIPMER provides free treatment, it is not covered under the Consumer Protection Act. The Learned Counsel also submitted the judgment of Hon'ble Supreme Court in V.P Shantha Vs Indian Medical Association in his support quoting conclusion 9 . Conclusion 9 is reproduced below "9 Service rendered at a Government hospital /health centre /dispensary where no charge whatsoever is made from any person availing the services and all patients(rich and poor) ) are given free service- is outside the 17 purview of the expression' service 'as defined in section 2(1)(o)of the Act. The payment of a token amount for registration purpose only at the hospital /nursing home would not alter the position."
20. In the V.P.Shantha case Hon'ble Supreme Court held that medical services are also covered under the Consumer Protection Act and delineated the circumstances in which medical practitioners and hospitals will be liable for negligent acts under the Act.
21. In view of Section 2(1)(o) which provides that service does not include the rendering of any service free of charge, the Hon'ble Supreme Court divided hospitals and nursing homes into three categories.
(i) Hospitals where services are rendered free of charge to everybody availing of the said services ;
(ii) Hospitals where charges are required to be paid by everybody availing of the services ; and
(iii) Hospitals where charges are required to be paid by persons availing of services but certain categories of persons who cannot afford to pay are rendered service free of charges.
22. The Hon'ble Supreme Court held that the hospitals in first category who render service without any charge whatsoever to every person availing of services would not fall within the ambit of service contained in Section 2(1)(o) of the Act; the payment of token amount for registration purposes only would not 18 alter the provision in respect of such doctors and hospitals. For the second category, there could not be any dispute and it was held that it would clearly fall within the ambit of Section 2(1)(o) of the Act.
23. Regarding the third category it was held that those hospitals are covered under the Consumer Protection Act and the relevant conclusion as drawn by the Hon'ble Supreme Court is extracted below :
"10.Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the eXpression service as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service "and the recipient a "consumer" under the Act. "
24. Let us analyse the position with regard to JIPMER in the light of the conclusions extracted above.
25. As pointed out by the learned counsel for the Opposite Parties JIPMER is established by an Act of parliament and is an institution of national importance and has been established with the objective of providing free treatment to the poor patients in the same manner as are being provided by a medical institute of the Central Government. Counsel for Opposite parties says that the patient or 19 complainants have not made any payment or consideration for the treatment undertaken in JIPMER. The complainants also have not denied it. However the counsel for Opposite parties has not said anything about the charges being collected from other patients.
26. A perusal of the web site of JIPMER shows that while free treatment is given to poor persons, charges are liable to be paid by certain category of persons. The relevant portions of the website of JIPMER, www. JIPMER.org is reproduced below.
"Hospital fees and charges General patients :
No charges are levied for outpatient or inpatient investigations and treatment for patients with monthly income less than Rs.2500.
Cancer patients:
All cancer therapy will be free irrespective of income. Special ward patients :
Patients in special ward will be charged for radiological examination, other investigations and clinical procedures as per the listed charges. A and B class special ward patients will pay full charges ,while patients in C class will pay 50 % of the charges.
Eligibility for special wards : Any person willing to pay the charges can be admitted in the special ward. For Government servants, it is dependent on the pay drawn. Cost of medicines supplied by the hospital will be collected in full as and when administered."20
27. Thus it is seen that JIPMER does collect charges from patients depending on their income except in case of cancer . Therefore JIPMER would squarely fall under conclusion 10 of Hon'ble Supreme Court in the Shantha case cited supra and therefore covered under the CP Act.
28. We are fortified in this regard by the judgement of a five member bench of Honble National Consumer Disputes Redressal Commission in Sailesh Munjal and Anr Vs All India Institute of Medical Sciences, New Delhi in OP 224 of 1994, wherein it was held that AIIMS, New Delhi is covered under the Consumer Protection Act. In the said case, AIIMS objected to the maintainability of the consumer complaint on similar grounds as taken by JIPMER here. Hon'ble National commission noting that AIIMS recovers various amounts such as Hospital charges, diagnostic charges etc from the patients and did not provide free treatment to all persons ,and applying the principles as laid down by Shantha case cited supra ruled that AIIMS is covered under the Act. Hon'ble National Commission held " The decision rendered by the ApeX Court in (Shantha case)is binding on all force, and, therefore, there is no alternative but to hold that the services rendered at the AIIMS would be covered by the provisions of the Act, despite the fact that it is established for educational and research purposes."
29. This has been reaffirmed in All India Institute of Medical Sciences vs Ayesha begum FA No.756 of 2007 decided by Hon'ble National Commission. 21
30. The learned counsel for the Opposite party has relied on certain citations which are analysed below.
In Dr.Shankerlal Lahoti vs Naseemunnisa Begum, the AP State Consumer Disputes Redressal Commission on the basis of Shantha case decided by Hon'ble Supreme Court upheld the decision of the District forum that treatment given by a doctor in a Govt Hospital was covered under the Consumer Protection Act as the information whether charges are collected from other patients was not stated. Thus this authority is not supporting the case of the Opposite party.
In Kishori Lal vs Chairman, Employees State Insurance Corporation, Hon'ble Supreme Court held that person availing services of the medical practitioners in hospitals run by the ESI corporation are consumers under the Act even though the charges are borne by the insurer. Hence this case law is also not supportive of the contention of the Opposite party.
In Pravinbhai Vs Kesar SAL hospital decided by State Consumer Disputes Redressal Commission, Ahmedabad ,it was held that in the opponent hospital services of hospital were provided free of charge to poor and deserving persons and to every other person on payment of charges and hence the hospital falls under the definition of the consumer under the CP act. This citation is also not supporting the case of the Opposite party rather it's supporting the complainant. 22
In Bitoni and another versus Satyanarayan Chauhan decided by the Hon'ble National Consumer Disputes Redressal Commission, the respondent was exonerated mainly on the ground that treatment was provided free of charge. This is not applicable to the case on hand since in the Opposite party hospital treatment was not provided free to all persons.
31. The Learned counsel for complainants had cited the order of Hon'ble Supreme Court in Neena Aneja Vs Jai Prakash Associates. In this case Hon'ble Apex court has decided that proceedings instituted before the commencement of the Consumer Protection Act 2019 would continue before the Fora corresponding to those under the old Consumer Protection Act of 1986 and need not be transferred in terms of revised pecuniary jurisdictions as per the new Act.This is not relevant for the case on hand as no such issue has arisen here.
32. In Spring Meadows Hospital vs Harjot Ahluwalia, Hon'ble Supreme Court held that both the parents of the child as well as the child would be consumer within section 2(1)d(ii) of the Act and as such can claim compensation under the act.The the parents were also awarded compensation for the mental agony undergone by them due to the wrong treatment given to their child.
33. In view of the decision of Hon'ble Supreme Court in the Shantha case discussed elaborately and the Spring Meadows case cited supra and decisions of Hon'ble National Consumer Disputes Redressal Commission in Sailesh Munjal and 23 Ayesha cases , it is categorically held that the complainants are consumers under the CP Act and complaint against JIPMER is very well maintainable. Issue No.1 is decided in favour of the complainant.
Issue No.2 Whether there was any deficiency or negligence in the treatment given?
34. Before we go into the question whether due care was given in the treatment given to Ms Sri Rajarajeswari in the Opposite party hospital it would be pertinent to study the legal principles governing medical negligence jurisprudence. Hon'ble Supreme Court and the Hon'ble National Consumer Disputes Redressal Commission have in large no of judgements laid down the principles for determining medical negligence cases. Both the complainants and the opposite parties have also brought to our attention numerous citations in this regard.
35. Bench of Hon'ble Supreme Court comprising Justice Dr.Dhananjaya Chandrachud, present Chief Justice ,along with Justice Hemant Gupta observed as follows in Arun Kumar Manglik Vs Chirayu in Civil Appeal No.227-228 of 2019 "29 This Court has consistently held in its decisions (the decision in Kusum Sharma (supra) reiterates that principle) that the standard of care which is expected of a medical professional is the treatment which is expected of one with a reasonable degree of skill and knowledge. A medical practitioner would be liable only where the conduct falls below the standards of a reasonably competent practitioner in the field. 24
30. Decisions of this Court elucidate on the standard of care which is expected of medical practitioners. Medical negligence jurisprudence in India is characterized by a reliance on the „Bolam test‟. In Bolam v Friern Hospital Management Committee, the defendant doctor treating a patient suffering from mental illness was held not guilty of medical negligence by the Queen's Bench for failure to administer muscle-relaxant drugs and using physical restraint in the course of electro-convulsive therapy. Justice McNair, in his directions to the jury, laid down the following standard of care:
"...I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view..." 4 [1957] 1 WLR 582 A careful reading of the Bolam case shows that the standard of "reasonableness" is implicit in the test. Thus, the court holds:
"...where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much 25 with any of the submissions in law which have been put before you by counsel. Mr. Fox-Andrews put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent. Mr. Fox-Andrews also was quite right, in my judgment, in saying that a mere personal belief that a particular technique is best is no defence unless that belief is based on reasonable grounds." (Emphasis supplied) Bolam clarified that the standard imposes a duty on medical professionals to ensure that obsolete methods are not employed:
"...At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion."
31 A three judge Bench of this Court in Dr Laxman Balkrishna Joshi v Dr Trimbak Bapu Godbole5 stipulated that the standard to be applied by a medical practitioner must be of a "reasonable degree of care":
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a 26 right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17)."
32. In Jacob Mathew v State of Punjab, a three judge Bench of this Court upheld the standard of the ordinary competent medical practitioner exercising an ordinary degree of professional skill, as enunciated in Bolam (supra). The Court held that the standard of care must be in accordance with "general and approved practice":
"24. The classical statement of law in Bolam has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular.
It has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two 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 27 generally available at that point of time on which it is suggested as should have been used."
36. After discussing the applicability of Bolam Test in the present day context, the Hon'ble Supreme Court held that the Bolam test is applicable for deciding medical negligence cases in the following words.
"41.Our law must take into account advances in medical sciences and ensure that a patient - centric approach is adopted. The standard of care as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts. Significantly, the standard adopted by the three-judge bench of this Court in Jacob Matthew includes the requirement that the course adopted by the medical professional be consistent with "general and approved practice" and we are bound by this decision."
37. In the Jacob Mathew case Vs State of Punjab Hon'ble Supreme Court concluded "1.Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human efforts would do or doing something which a prudent and reasonable man would not do. ....The essential components of negligence are three : " duty "breach " and" resulting damage".
"2.Negligence in the conduct of the medical profession necessarily calls for a treatment with a difference. ...A simple lack of care, an error of judgement or an accident is not proof of negligence on the part of 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 better alternative course or method of treatment was also available or simply because a more skilled doctor would not have 28 chosen to follow or resort to that practice or procedure which the accused followed. 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 external precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
3.A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.The standard to be applied for judging, whether the person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. 4.The test for determining medical intelligence as laid down in Bolam case 1957 holds goods in its applicability in India."
38. The judgment quoted Halsbury's Laws of England (4th Edn., Vol.30, para
35), as follows:-
"35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater 29 skill and knowledge would have prescribed different treatment or operation in a different way..."
39. In Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009 Honble Supreme Court observed "112. It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is. "
40. In Kusum Sharma vs Batra Hospitals Hon'ble Supreme Court held "89.While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
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.30
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field 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 of action chosen by him was acceptable to the medical profession.
41. Some of the above citations were relied on by both sides or at least one side. The citations relied on by the complainants may be taken up for analysis and culling out the principles regarding medical negligence in the first instance.
42. The citation Oriental Fire and General Insurance Co., Vs. PP Mistry and others decided by the Hon'ble Kerala High Court talks about the principle laid down by Donoghue versus Stevenson 1932 on negligence and that a manufacturer owes a duty of care to the ultimate consumer. The case deals with the claim filed by the dependents of victim of a road accident.
43. The citation of Rajkot Municipal Corporation vs Manjulben Jayantilal Nakum decided by Hon'ble Supreme Court talks about the principles and law of negligence and duties of statutory authorities. In this case compensation was claimed by the dependents of a person who died due to a tree fall while walking on the road.31
In Sunil Reddy Vs M managing director Rohini Hospital Commission decided by the Hon'ble National Consumer Disputes Redressal Commission Hyderabad branch, principles relating to medical negligence as laid by Hon'ble Supreme Court were briefly recapitulated
44. The citations, I)State of Haryana versus Raj decided by Hon'ble Supreme Court ii)Neha Kumari Hospital versus Apollo Hospital and iii)Basant seth versus Regency Hospital both decided by Hon'ble National Consumer Disputes Redressal Commission does not support the case of the complainant since the complaints were dismissed as no medical negligence was found against the op hospitals.
45. The Opposite party had relied on the following citations of Hon'ble National Consumer Disputes Redressal Commission in support of his defence.
1.Dr Deepak Kumar Satsangi vs Sanjeevan Medical Research In this case after quoting exhaustively from Jacob Mathew case, Kusum Sharma case and Martin F.D.Souza the Hon'ble National Consumer Disputes Redressal Commission held that " in view of Supreme Court holding that a court can not be an expert in such cases and the opinion regarding medical negligence given by an independent Board shall have more credibility" and dismissed the complaint of medical negligence as not established. In the case on hand no expert medical board opinion has been obtained. Hence this is not applicable.
2. Krishna Murari Sinha versus Dr Muhammad Bashir "14. Applying Bolam test the standard under professional skill and care accepted by a doctor is that of a reasonable average professional. The law 32 does not require of a professional man that he be a paragon combining the qualities of polymath and prophet."
3. Nirmala vs- Ms Apollo hospital. Hon'ble National Consumer Disputes Redressal Commission relying on Achutrao Haribhau Khodwa vs State of Maharashtra and Samira Kohli vs Dr.Prabha Manchanda decided by Hon'ble Supreme Court. This citation discusses about the informed consent and correctness of the procedure adopted. Both of these are not in dispute in the case on hand. The relevant paragraph is extracted below "It is for the doctor to decide, with reference to the condition of the patient, nature of the illness and the prevailing established practices as to how much information regarding the risk and consequences should be given and how they should be couched in the best interest of the patient. A doctor acting accordingly with normal care and in accordance with a recognized medical practice cannot be said to be negligent merely because body of opinion taken a contrary view."
4. Megh Vs Jasjit chhachhi - National Consumer Disputes Redressal Commission quoting Bolam test and Jacob Mathew case on the basis of expert Medical Board opinion decided that no negligence was made out.
5.In Irene pais vs doctor Anil Pinto- Hon'ble National Consumer Disputes Redressal Commission after considering landmark decisions of Hon'ble Supreme Court observed as follows "8. The Hon'ble Supreme Court stated in unequivocal terms that a simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long a doctor follows a practice, acceptable to the medical profession by that day, he cannot be held liable for negligence, merely because a better alternative course or method of 33 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 doctor followed."
6.Ramaiah Vs. Pundalik Shenoy - Hon'ble National Consumer Disputes Redressal Commission.
35. In PGI, Chandigarh (supra), the Supreme Court has observed ;
"19. With regard to the professional negligence, it is now well settled that a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case the skill which he did not possess. It is equally well settled that the standard to be applied for judging whether the person charged has been negligent or not ; would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices."
46. During oral arguments the Counsel for Opposite parties presented the following citations and they are analysed hereunder.
1. M.A Ganesh Rao versus Dr TMA Pai Rotary Hospital- Hon'ble National Consumer Disputes Redressal Commission - for the proposition that no specific negligence alleged and established and no expert witness was examined.
2. Rajkumar Gupta versus PS Hardia Dr-Hon'ble National Commission found that the complainants have failed to produce extracts from medical literature or expert evidence to corroborate the allegations of medical negligence against the opposite party doctor. 34
3. KL Nijawan versus Sri Gangaram Hospital and others.Honble National Commission concluded on the basis of the expert committee opinion comprising of faculty of AIIMS New Delhi that there was no negligence on the part of the opposite party hospital.
4. Shrinath Chaturvedi versus GS Ambardekar Hon'ble National Commission for the proposition that evidence produced by doctors was not rebutted by the complainant . and no expert evidence was produced by the complainant
5. Raj Bhalla vs Vimhans - Hon'ble National Consumer Disputes Redressal Commission held "in the entire complaint there is no whisper of actual medical negligence or deficiency in service attributed against the opposite party as to what ought to have been done as per the medical text or what should have been done by opposite party that was not done and due to that lapse it caused irreparable damage to her. ... the opposite party has done whatever they could do with the knowledge of the problems that she is having and considering that she suffers from diabetes and hypertension they had controlled these parameters at the time of operation.
" "Not filed any expert evidence or medical text to prove negligence "
6. B.Shyam Sunder Raj Vs M.Pandarinath - Hon'ble National Consumer Disputes Redressal Commission for the proposition that if the patient does not comply with the instructions of the doctor no negligence can be ascribed. Relevant portion is extracted below:
"9......It is also on record that the patient despite advise by the petitioner doctor to do so was not got admitted for the treatment in the ICU and instead left against medical advice .Since respondent himself admitted that he acted contrary to the specific advice of the doctor we find force in 35 the Petitioner' s contention that there was no medical negligence or deficiency in service in the instant case"
7. Mool Chand Khairati Ram Hospital Vs Naresh Kumar Sharma - Hon'ble National Disputes Redressal Commission decision taken regarding course of treatment and diagnostic tests to be done by qualified doctors not countered or contradicted through expert or other credible evidence.
8. Virupaksha vs M/S Wockhardt hospital and heart institute Appeal by the complainant was dismissed as no credible evidence including that of expert to prove that there was any medical negligence was produced.
9. Madaan surgical and maternity hospital vs Santosh and another- National Consumer Disputes Redressal Commission "But to determine whether an error is one of judgement or whether it constitutes negligence, it has been suggested that the court is to look at whether the error is so egregious to constitute negligence."
"Liability of a doctor arises not when the patient has suffered any injury ,but when the injury has resulted due to the conduct of the doctor which has fallen below that of reasonable care."
10.Satya Prakash pant versus Dr. P.N Joshi- National consumer disputes redressal Commission "11.. Under the law doctors are permitted a broad range of judgment in their professional duties and they are not liable for error of judgment unless it's proven that an error of judgment was the result of negligence."
11.Amarnath Kakkar versus Escorts heart institute and research centre - This also deals with same proposition on selection of choice of treatment . 36
12..TV Sukumaran versus Joy k.Cherian decided by National consumer disputes redressal Commission "6.....The cases of medical intelligence as held by the Hon'ble supreme court fall in a different category as allegations on medical negligence are not to be treated likely and secondly specific act of negligence has to be proved, challenging the line of treatment given by a doctor.Before us,there is nothing to substantiate the allegation that the line of treatment given by the respondent to the complainant was not the correct line."
" There is no specific allegation of medical negligence and much less proved by the complainant by any expert or medical literature."
13.In Manju Garg versus Goel hospital - National consumer disputes redressal Commission On the basis of three reports of 3 different doctors which clearly stated that there was no medical negligence on the part of the Opposite parties, no medical negligence was found by the Hon'ble National Consumer Disputes Redressal Commission
47. The case at hand may be analysed in the touchstone of reasonable care, knowledge and skill in treatment of patients by the doctors.
48. The patient Ms. Shri Raja Rajeswari came to Opposite party JIPMER hospital on 2.12.2015 with history of Irritable bowel syndrome for the past four months and with a past history of appendectomy done 14 years back. On investigation a 'small' cyst was found in the right ovary with dimensions 7.11 ×5.34 cms.T he patient was advised to come on 23/12/2015 for review and on 23.12.2015, the investigation reports were found normal and therefore instructed to come on 28.12.2015 at 7.30 am for laparoscopic surgery for removal of the 37 ovarian cysts. Accordingly Laparoscopic Ovarian Cystectomy was performed on 28.12.2015.
49. At this juncture, it may be useful to have brief background about ovarian cysts and Laparoscopy.
Ovarian cysts are sacs usually filled with fluid in the ovary or on its surface. One ovary is located on each side of the uterus. Ovarian cysts are common occurrences. During the surgery, the patient was found to have three dermoid cysts Dermoid cysts can contain tissues like hair, teeth, skin etc. Laparoscopic surgery is a minimally invasive surgery technique that only uses a few small incisions in the lower abdomen. The patient is given anesthesia before the procedure is done .A laparoscope - a thin tube with a camera at the end is inserted into the abdomen usually at the sight of the navel through a small incision. Additional incisions are also made in the abdomen for insertion of surgical instruments. Carbon dioxide is pumped into the abdomen to create more space between the abdominal wall and internal organs. Surgical instruments are used to remove the cysts.
5. It is the case of the complainants that their daughter SriRajarajeswari died due to the injury to the bowel caused in the course of the laparoscopic surgery. The bowel injury caused bacterial infection leading to septicaemia which resulted 38 in multi organ dysfunction and death .Had the bacterial infection been timely detected it would not have led to septicemia which eventually caused the death of the patient. First opposite party ought to have been aware of the fact that on account of an earlier abdominal surgery for appendicitis in all probability there will be adhesions and she ought to have been doubly cautious in performing the surgery, the patient being a high risk patient.
51. Operation notes dated 28.12.2015 regarding the Laparoscopic cystectomy was perused Exhibit R2 page 31. The notes are extracted below.
"Laparoscopy procedure details :
Ovarian (right)Lap cystectomy by Professor Latha,Dr sasirekha,Dr. Nasreen Right Adnexa - minimal adhesion of bowel to the abdominal wall. 15 × 15 centimetres Dermoid cyst 2 ×2 cm Dermoid cyst 1 ×2 cm Dermoid cyst -a total of 3 cysts.
Left adnexa Tube and overy normal Ileo caecal area - adhesion to anterior abdomen wall.Minimal spillage during specimen delivery.
General anaesthesia Bladder drained Umbilical port inserted 10mm & pneumoperitoneum created and camera inserted Right side ports and 1 Left side port inserted & under vision. 39 Intra operation noted; filmy adhesions present ileocaecal region to anterior abdomen wall.
R cyst capsule removed and cyst retrieved via camera port minimal spillage.
2 small cysts removed. Cut section of the cysts showed tooth ,hair and pasty content suggestive of Dermoid .sent for HPE( Histo Pathology Examination) Pneumo peritoneum deflated after removing ports under vision. Port sites sutured.
End of operation vitals are stable. "
52. Nothing is mentioned in the operation notes about any injury to the bowel or any other internal organs or any unusual events during the procedure.
53. Operation notes made during the second surgery Laparatomy done on 21.01.16 was perused, Ex.R2 page 26 (Laparatomy is basically a surgical procedure which involves a large incision in the abdomen to facilitate a procedure.
In contrast in Laparoscopy only a small incision is made)
54. The relevant portion of operation notes are as follows:
"Abdomen distended, fecal matter coming through umbilical port. Peritoneal cavity contaminated with fecal matter .after meticulous blunt and sharp dissections slowly adhesions were released. by extraperitoneal approach it was noticed that there was small perforation 1 cm on the large bowel 5 cm from ileocaecal area .also there was injury over proximal caecum also. mucosa was exposed outside for about 4 cm ,edges 40 looked fresh. All the contents were sucked out and saline wash was given .bowel was explored completely from duodenal flexure to full length .Damaged area of bowel including perforation and injured caecum was resected".(Emphasis supplied.)
55. In the written submissions of the Opposite parties also it has been admitted "It was found during laparotomy that there was perforation of caecum and therefore the damaged portion was removed and necessary procedure was done to set it right.
In the CCU receiving notes at 5:00 p.m on the same day 21.01.2016,it is recorded that "post operative laparoscopic cystectomy with faecal fistula and faecal peritonitis ; ileocaecal resection and ileostomy done ".
56. Thus it is established that caecal injury was found present at the time of second surgery.
Medical certificate of cause of death was perused by us. Exhibit R2 page 89.
57. It is seen that this certificate has been issued by one of the witnesses RW2, Dr.Sasirekha, Associate Professor . In the certificate, caecal injury is mentioned as one of the causes for the death and also that the caecal injury must have occurred approximately 3 weeks before .The relevant portions of the certificate are extracted below.
41
Medical Certificate of cause of death Hospital in- patients. Not to be used for stillbirths.
Cause of death Interval between onset and _death __
approximate
1.Septic shock -multi organ 24 hrs
dysfunction
Fecal peritonitis 2-3 weeks
Caecal injury 3 weeks
58. It is the version of Opposite parties in the written arguments that "caecum is to be found on the upper part which is 5 - 7 cm above the ovaries and therefore there was not any possibility not even probability of caecum being injured while performing laparoscopic surgery which was done on 28.12.2015." Similarly they denied the possibility of cauterization causing any injury on caecum. While denying that caecal injury was caused during laparoscopy, their claim is that the patient was suffering from IBS (Irritable Bowel Syndrome) and IBS caused the death. The relevant portion in the written submission is extracted below "46........ there ensued death not owing to the allegation of negligence on her part but because of the affectation of irritable bowel syndrome for over a period of year to 2 years previous to 28 12 2015 ". However no supporting evidence has been produced by the Opposite parties that affectation of IBS led to the death of the patient.
42
59. Let us examine this statement of opposite parties that IBS ensued the death of the patient.
What is IBS ?
Irritable Bowel Syndrome is a common chronic (it continues for a long time or recurs frequently) disorder of the gastrointestinal tract.
IBS is defined by the presence of abdominal pain or discomfort in association with disordered defecation that is either constipation or diarrhea or both. Other typical symptoms of IBS include bloating, gassiness, abdominal distension, feelings of extreme urgency to use the bathroom, excessive straining etc.(Source - book titled' 'Making sense of IBS -A Physician answers questions about irritable bowel syndrome '-chapter 2- author Brian A Lacy - John Hopkins press health book)
60. Problems in IBS have been found to be in the nervous system supplying the gut often making it more sensitive. Psychological factors including stress, certain foods and the microorganisms living in the gut can all play role in triggering symptoms. There is no clear origin "( source- British Society of Gastroenterology - guidelines on the management of irritable bowel syndrome). Now we examine whether IBS could have caused the perforation in the caecum of the patient Ms.ShriRajaRajeswari.
43
61. "What are the prospects for IBS?
IBS is a chronic condition. That means that once you get it it's likely to stay with you for many years. The good news is the symptoms will vary over time so between the bouts of symptoms you will have periods with minimal symptoms or no symptoms at all.
62. Is it harmful?
No. IBS is often painful, inconvenient and uncomfortable and can cause a great deal of discomfort and distress but it does not cause permanent harm to the intestine .There is no indication that there is any physical damage that occurs to people suffering from IBS. It does not lead to intestinal bleeding of the bowel or to a serious disease such as cancer , inflammatory bowel disease or Crohn's disease."Source- book titled' Understanding Irritable Bowel Syndrome' by Simon Darnley and Barbara Millar
63. What is my prognosis?
There is absolutely no data in medical or scientific literature to show that having IBS increases the risk of developing cancer of the colon or rectum or any other type of cancer. Specifically, IBS does not turn into inflammatory bowel disease either Crohn's disease or ulcerative colitis. Source 'Making sense of IBS
-A Physician answers questions about irritable bowel syndrome '-chapter 9- author Brian A Lacy - John Hopkins press health book) 44
64. It may be relevant to mention here that Inflammatory Bowel Disease can cause perforation of the bowel but IBS does not turn into Inflammatory Bowel Disease (IBD).
"Irritable Bowel Syndrome IBS is a functional bowel disorder .Functional bowel disorders is a term that describes a problem with how the stomach and bowels function or work. Irritable bowel syndrome and functional dyspepsia are functional disorders .All the organs are normal but there are still signs that something is wrong. While there are no cures for IBS or functional dyspepsia neither will cause death nor turn into something worse like cancer ."Source- Website Michigan Medicine
65. IBS can be painful but does not lead to other health problems or damage your digestive tract."Source- National institute of diabetes and digestive and kidney diseases ( Niddk )website as part of the National institute of health of US government 'symptoms and causes of irritable bowel syndrome '
66. As per the Mayo clinic website " Only a small number of people with IBS have severe symptoms .Some people can control their symptoms by managing diet, lifestyle and stress. More severe symptoms can be treated with medication and counseling. IBS does not cause changes in bowel tissue or increase risk of colorectal cancer."(emphasis supplied) 45
67. In view of the above information culled out from various medical books and other sources, the claim of the Opposite parties that IBS caused the perforation in the caecum could not be accepted.
68. Opposite parties have denied the possibility of laparoscopy procedure having caused the injury to the caecum saying the caecum is located 5-7 cms above the ovaries. Medical literature was referred to verify the veracity of this statement of the Opposite parties. It may be useful to mention here that Caecum is part of large intestine which is in turn part of bowel along with small intestine .
69. .In "Bowel injury in gynecologic laparoscopy :systematic review" an article published in Document Gynecology 2015 authored by Natalia C llarena it has been stated
70. "Overall incidence of bowel injury in gynecologic laparoscopy is one in 769 but increases with surgical complexity. Delayed diagnosis is associated with a mortality rate of 1 in 31."
2.As per medical text book - Te Linde's 'Operative Gynaecology' - John A.Rock and Howard W.Jones III Chapter 16 'Diagnostic and Operative Laparoscopy 70(1) "Complications of laparoscopy :
Complications occur with laparoscopic procedures as with all surgical procedures . Surgical experience and meticulous adherence to proper technique are essential to prevent complications. Some complications such as those associated with blind insertion of the trocar may be unavoidable. A laparoscopic surgeon should be aware of the potential complications and how to manage them."46
70(2). Some of the Complications listed are pneumoperitoneum, vessel injury, bowel injury, ureter injury etc. 70(3). Regarding bowel injury relevant extracts are reproduced below:
" Injury to the intestines can occur during insertion of veress needle or trocars or at the time of operative laparoscopic procedures. Injuries are more common in patients who have had previous abdominal surgery or pelvic adhesive disease. Perforation of the bowel with the veress needle often goes undiagnosed because the area of perforation usually seals off spontaneously. The syringe test usually permit recognition of stomach or bowel penetration, but the test is not infallible. Large bowel injuries may be repaired laparoscopically if the patient has undergone a bowel preparation or if there is minimum fecal spill. If the surgeon is not experienced in laparoscopic suture technique or if the injury is extensive a laparotomy should be performed."
70(4) "Thermal injury can be caused by direct contact of electrical, thermal or laser energy with an organ or tissue. Some accidents occur because the field of vision is incomplete and bowel may come in contact with a charged or heated instrument without the surgeons knowledge .With electrical injury, the full extent of damage may not become obvious immediately and patients may be asymptomatic for up to 3 days. Abdominal pain and signs of peritonitis in a 47 patient who has recently undergone operative laparoscopy should raise question of a thermal bowel injury." ( Emphasis supplied)
75. Again in the chapter 42 titled Intestinal tract in Gynecologic Surgery It is said "The gynecologic surgeon should have a basic understanding of the anatomy and physiology of the intestinal tract and should possess the fundamental skills necessary to recognise and correct common conditions affecting the digestive system. Meticulous dissection and cautious handling of tissues reduce the occurrence of intestinal injury and the risk of post operative complications."
"Gastro intestinal injury during laparoscopy can occur with introduction of the insufflation needle or trocar and during cautery or sharp dissection. Good clinical judgement is necessary to determine which patients are appropriate candidates for laparoscopy. Previous surgeries , inflammatory conditions and prior irradiation increase risk of injury from enteric adhesions which fix intestine to the abdominal wall. In the presence of enteric adhesions the laparoscopic trocar can be inadvertently placed into the stomach ,transverse colon, or small intestine."
" The most serious laparoscopic intestinal injuries are those that go unrecognized at the time of surgery . Thermal injury from electrocautery or laser can have a potentially disastrous outcome."(Emphasis supplied)
3."Bowel injury following gynecological laparoscopic surgery" - Hassan M Elbiss and Fijri M Abu- Zidan in African Health Sciences 2017 Dec 17(
4) 48 "Bowel injury is a serious complication of gynecological laparoscopy. Its incidence depends on the treated pathology and the type of procedure (diagnostic, minor operative, or complex operative). Lack of surgeon's experience and presence of previous abdominal surgery increase the risk of bowel injury. The incidence of bowel injury is 0.13% for laparoscopy procedures. The most common site of bowel injury was the small bowel, followed by the large bowel and stomach.2 This is in agreement with a recent systematic review which has shown that the incidence of bowel injury in gynecologic laparoscopy is 1 in 769.3"
" Early recognition of bowel injury and early intervention is crucial to reduce its morbidity and mortality. Despite care to identify bowel injury during surgery, only less than half of these injuries are diagnosed during laparoscopy. When bowel injuries are not diagnosed during surgery, and dealt with at the same time, it may become a life-threatening condition. That is why it is the most common cause of laparoscopy-related death."
76. In medical literature titled " Complications of laparoscopic surgery:
prevention ,diagnosis and management " authored by Mark Yudin et al published in Journal of Society for Obstetrics and Gynecology it has been stated that " although laparoscopy is considered to be minimally invasive surgery it does not carry a minimal risk. ...While it is relatively safe, it is similar to any other procedure in that complications do occur. The mortality rate associated with laparoscopic surgery has been reported to range from .03 to 0.49%. The most frequently encountered risk factor is previous abdominal surgery. Injury to the gastrointestinal tract may occur at any time during 49 laparoscopy .The risk of this injury is approximately 1.8/ 1000. Damage may be mechanical or thermal in nature.
77. As per "Bowel injury as a complication of laparoscopy " article published in British Journal of Surgery in 2004 -author M van der Voort et al "Bowel injury is a rare but serious complication of laparoscopic surgery."
"At 0.13% the incidence of laparoscopy induced bowel injury is small and such injuries are usually discovered during the operation. Nevertheless Laparoscopy induced bowel injury is associated with a high mortality rate of 3.6%"
78. Thus it is clear that gynaecologic laparoscopy can cause bowel injuries.Thus the argument of the Opposite parties that there is no possibility of caecum being injured due to laparoscopic surgery is not acceptable.
79. Death of the patient occurred on 22.01.2016 and as per the death certificate cause of death is caecal injury which occurred approximately 3 weeks(21 days) earlier . (Exhibit.R2 page 89) The laparoscopy procedure was performed on the victim patient on 28.12.2015 which is 26 days earlier. In Nizams institute of medical sciences versus Prashanth Dhanankha Hon'ble Apex Court observed "32.We are also cognizant of the fact that in a case involving medical negligence once the initial burden of them is discharged by the complainant by making out case of negligence on the part of the hospital or the doctor concerned the onus then shifts on to the hospital or to attending the doctors and it is for the hospital to satisfy the complainant that there was no lack of care. In Savita Garg vs Director National Health Institute it 50 has been observed as under by the Honble Supreme Court "once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore in any case the hospital is in a better position to disclose what care was taken or what medicine was given to the patient. It is the duty of the hospital to satisfy that there was a lack of care and diligence".
Judgment of Honble National Consumer Disputes Redressal Commission in St.Antony' s Hospital vs D'Silva in FA no 39 of 2007 may be referred to with advantage here. In this case also the patient, wife of the complainant, was admitted for removal of ovarian cyst. After Laparoscopic surgery, next day she was showing signs of systemic sepsis and peritonitis. Another exploratory surgery was conducted which revealed the presence of a small tear in the sigmoid colon and as a result body fluids and fecal matters has leaked into her system. The patient died inspite of shifting to another higher center and cause of death was septicaemia leading to multi organ failure. Hon'ble National Consumer Disputes Redressal Commission held "Apart from this, the Doctors from the Appellant hospital have not been able to explain how the colon tear occurred and why a third surgery may have been necessary because of which even the surgical wounds were not properly sutured. The instant case is a case of res ipsa loquitur where medical negligence is clearly established."
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80. In the case on hand also ,the Opposite parties have not been able to explain the reason for the injury in caecum satisfactorily. Their defence that IBS caused the injury is found incorrect. On the other hand their defence that laparoscopy could not have caused caecal injury is also incorrect.
81. Therefore this commission is compelled to deduce, especially in the absence of any other plausible explanation from the Opposite parties that faulty procedure adopted during the Laparoscopy surgery on the patient on 28.12.2015 has caused perforation of the caecum which led to septicemia and eventually death. The Opposite party 1 has not exhibited the required reasonable skill and care in performing the procedure.
82. No fault is identified in adopting the Laparoscopy cystectomy to remove the ovarian cyst. No doubt is raised regarding the qualifications and expertise of the op1.Even though the academic qualifications of the Opposite party 1 Dr. Latha Chatruvedula has not been furnished, since she is working as a Professor in JIPMER an institute of National importance we have no reason to doubt the academic qualifications. As per the Opposite parties, Dr Latha who performed the laparoscopic surgery is an expert in Gynaecology and trained to perform surgeries using laparoscope and she has been conducting laparoscopic procedures since 1995. Average of 4 to 5 major Laparoscopic procedures are performed by her every month. She handles classes for undergraduate, post graduate and senior 52 residents. The complainants also have not raised any complaints against her qualifications. However the issue to be determined is even if the treating doctor is established to have the required skill and expertise whether the skill was put to practice on the particular occasion. Hon'ble Supreme Court concluded in the Jacob Mathew case that" 3. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed or he did not exercise with reasonable competence in the given case, the skill which he did possess " .In view of the above findings and discussions it is concluded that the Opposite party 1 has not performed the laparoscopic cystectomy with the reasonable competence and due care expected from a reasonable expert in this case and the complainants deserve to be compensated for the negligence.
Whether due Post Operative care was given to the patient?
83. The patient visited the hospital on 30.12.2015, 31.12.2015 , 08.01.2016 and 09.01.2016 with complaints of stomach pain ,vomiting and loose motion. Relevant notings of case record pertaining to the follow up visits are extracted below, Ex.R1 page 5.
30.12. 2015 Seen by Dr.Latha.Laparoscopy cystectomy done on 27.12. 2015. All laparoscopic scars healthy .Advice : to come after 2 weeks for Histopathology Examination report voveran tablet 53 31.12.2015 time 10:15 a.m. Seen by Dr. Keerthana Complaint of loose tools 7 to 8 episodes per day since yesterday afternoon. Complaint of vomiting -4 episodes; no history of bladder disturbances, history of fever on and off for 2 days and history of repeated episodes of belching.
Advice:
Tab : paracetamol ,famotidine,ORS,perinorm Review after two weeks with histopathology examination report. 08.01.2016 History of loose stools five days( 8 to 9 times per day) watery in consistency ,not blood stained, history of nausea, laparoscopics scars healthy, Advice: USG and was referred to Surgery 09.01.2016 By Prof. Latha TAS: uterus normal ,no free fluid ; advised to get surgery opinion and review Injury to the caecum was not noticed inspite of the complaints of the patient during the above visits.
In the article titled 'Complications of laparoscopic surgery:
prevention, diagnosis and management 'authored by Mark yudin cited supra it is said "Most often the patient will present within 48 hours with signs and symptoms of peritonitis. It is imperative to investigate these patients early rather than to observe them for several days as this complication may lead to death if not treated expeditiously."54
84. In an article published in journal 'Fertility and sterility 'titled "Avoiding complications of laparoscopic surgery " by Ralph philosophe it has been stated "
all intra operative injuries can be life threatening especially if they go unecognised.Therefore any suspicion should be followed through to ensure the integrity of internal organs. Although unintentional, intraoperative injury to the bowel can occur within the standard of care and its occurrence can lead to significant consequences and immediate attention to this problem is imperative.
The key to treating bowel injury is immediate recognition. Injuries typically present within 48 to 72 hours with increasing abdominal pain and fever. post operative intestinal bleeding following laparoscopy occurs."
85. From the medical literature referred above it is evident that timely suspicion and diagnosis is crucial for avoiding damage due to bowel perforations which is a rare but significant complication of gynaecologic laparoscopic surgery." In the case on hand this timely detection of the caecal injury was not done inspite of the patient being a high risk patient in view of the previous history of appendectomy.
86. Vicarious liability While it has been held that the Opposite party 2 Dr.Latha Chaturvedula did not exercise the due care expected and required,the role of Opposite party 1 JIPMER hospital is to be examined.
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87. The complainants alleged that the Opposite party hospital is also vicariously liable for the negligence and damage suffered by them.
88. In Arpana Dutta vs Apollo Hospitals Enterprises , Hon'ble Madras High Court quoted the observation of J.Pratap Singh in V.Chandrasekar Vs Apollo Hospitals regarding Vicarious liability -page no.26....."In the circumstances if the patient suffers injury due to negligence of the doctors provided by the hospital, the hospital should be equally liable for damages on the principles of vicarious liability or on the principles analogous to vicarious liability. Therefore it is concluded that Opposite party No. 2 JIPMER Hospital is vicariously liable for the negligence of the Opposite party no.1
89. Contributory negligence One of the grounds taken by the opposite parties in support of their defence is that the victim girl that is the patient had left the hospital after the laparoscopic surgery on 28 .12. 2015 against the advice of the doctors and even though she was instructed to take the opinion of surgery doctors on 8 .1.2016 and 9.1. 2016 she had been reluctant to do so. The counsel for Opposite parties had quoted the orders of the Honble National Consumer Disputes Redressal Commission in the Shyam Sunder Raj versus Pandarinath case wherein Hon'ble National Commission had observed that "it is also on record that patient despite advice by the petitioner /doctor to do so was not got admitted for further treatment in the ICU and instead 56 left against medical advice. Since , respondent himself has admitted he acted contrary to the specific advice of the petitioner /doctor ,we find force in the Petitioner's contention that there was no medical negligence or deficiency in service in the instant case".
90. Now the allegations of the Opposite parties is examined I)Whether the patient left the hospital against the advice of the doctors.
As per the deposition of the CW1and CW4 the complainants, the patient was discharged on 29.12.2015 next day of surgery and no medicine was prescribed. As per the deposition of Rw1, it is only the mother of the deceased and the patient herself who wanted to be discharged on the very next day of surgery ie 29 .12.2015 and neither Rw1 or anyone from the hospital had persuaded or pressurized the patient to get discharged the very next day and as a responsible doctor she would not discharge immediately any patient on whom surgery was done. On cross examination Rw1 stated that laparoscopy surgery for the removal of ovarian cyst is a simple surgery not a major one and usually next day the patient is discharged. At the time of discharge Rw1 was in the hospital but not along with the patient .usual procedure is that only with the knowledge of my team members patient will get discharged. At the time of discharge of the deceased patient Dr. Nasreen was on duty .in this case even before the issue of discharge summary the patient had left the hospital.
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91. Perusal of the medical records Ex.R1 page 5 reveals that no entries whatsoever have been made on 29.12.2015 and entry relating to 30.12.2015 says "Seen by Dr.Latha laparoscopy cystectomy done on 27/12/2015 .all laparoscopic scars healthy .Advice :to come after 2 weeks for histopathology examination report"
92. In the above notings no mention has been made regarding discharge against medical advice or left without intimation etc. Therefore the claim of the Opposite party that the patient left the hospital on 29.12.2015 against the advice of the doctors is not accepted.
93. The next claim against the patient is that even though she was instructed to take surgery opinion on 8 and 9.1 2016 she was reluctant to do so. To examine this claim it is necessary to peruse the case records of the relevant dates. The relevant portion of the notings dated 8.1.2016 are extracted below Exhibit R1page 7 and C3 "To Surgery respected sir/madam Here with referring this patient 22 years old unmarried laparoscopy cystectomy done on 27 12 2014 now complaint of loose tools- 5 days. patient diagnosed as irritable bowel syndrome on August 2015 kindly evaluate and opine regarding this patient"
94. Notings on 9.1 .2016 are as follows " To Surgery doctors 58 Herewith referring a patient post lap cystectomy in December 2015. complaint of abdominal pain.kindly give your valuable opinion. Underwent laparoscopic ovarian cystectomy on 28 12.2015. "Thus the notings are not in dispute. the Cw1 in cross examination denied that after the surgery on 28.12.2015, the patient was referred for surgery opinion .However when he was shown the endorsement dated 8.1 .2016 in exhibit C3 and was asked that his daughter was referred to surgery as aforesaid endorsement ,the witness says that he did not know about the same. The complainants have not submitted any reason for not complying with the instructions of the OG unit to see the surgery department doctors. However CW2 Dr.Karthikeyan gastroenterologist deposed that he treated the patient before she went for the surgery at JIPMER and after the surgery he met her once. He found the victim was suffering from diarrhea and dehydration so he suggested starting intravenous fluids and also to take antibiotics. Ultrasound was taken for whole abdomen on 11.01.16 and the report was normal. Thus it is seen that even though the patient did not go to the surgery department as directed, she was not indifferent either and was consulting her doctor who was treating her earlier. Nevertheless ,the patient and the complainants can not be entirely absolved of the charge of contributing for the mishap that has befallen the patient. Perhaps if she had gone to the Surgery department and taken their opinion, the perforation may have been found at that time itself ie on 59 8.01.2016 / 9.01.2016 instead of on 21.01.2016 during the laparotomy. Hence it is held that the patient and the complainants themselves have contributed for their sufferings at least to a limited extent
95. It may be useful to see the law laid by Hon'ble Supreme Court on the doctrine of contributory negligence . In Municipal Corporation of Greater Bombay vs Lakshman Iyer ,it was held " Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage."
96. In accordance with the decisions of Honble Apex Court ,this Commission proposes to reduce the compensation appropriately when the question of compensation is taken up later in this order .
97. Another plea taken by the complainants is that the JIPMER Hospital is lacking in infrastructure, the instruments used were not sterilised and caused the 60 bacterial infection resulting in death. It is the case of the complainants that the opposite party admitted in her deposition that the ECG machine was not working and variation in blood count could be due to some errors in the machine.. The said non functioning of ECG machine is noted by the senior doctor in the case records of the victim and the same was admitted by Opposite party 1 during her cross examination. Perusal of deposition of RW 1 reveals that this is correct
98. Past history was not taken into account and Non Joinder of parties It is the plea of the Opposite parties that even though the patient taken treatment in Bangalore, Apollo Hospital , Dr Karthikeyan and Dr.Narayanan they have not been impleded.In JIPMER surgery was done by a team of three doctors. only Opposite party 1 won has been impleaded. other doctors also should have been impleaded. The counsel for the complainants say the opposite parties alone are the necessary parties and hence they have been impleaded.
99. The counsel for the opposite parties have cited the judgment of Hon'ble Supreme Court in Savita Garg Vs Director, the National Heart institute in support of their stand. However a perusal of the extract of the said judgment as reproduced in the written arguments do not support their case. On the contrary it supports the case of the complainants. The relevant portions of the said judgment are reproduced for easy reference." So far as the law with regard to the non joinder of necessary party as per Civil Procedure Code Order 1 Rule 9 and Order 1 Rule 10 61 no suits shall fail because of mis joinder or non joinder of parties. It can proceed against the persons who are parties before the court. Therefore even if after the direction given by the commission the concerned doctor and the nursing staff who were looking after the deceased have not been impleaded as opposite parties it cannot result in dismissal of the original petition as a whole. Hence the plea of the Opposite parties that the complaint shall be dismissed due to non-joinder of necessary parties is rejected.
100. Non production of documents The Opposite parties have alleged that except the outpatient case history and in patient case history, the complainants have not produced any other documents or medical literature to substantiate their claim of medical negligence. Exhibit C11 is not having any evidentiary value as the author of the document has not been examined and the particulars are false. Exhibit C11 was perused. Evidence Act is not applicable for the proceedings under the Consumer Protection Act. Hence, the allegation of the first opposite party no.1 is not accepted.
101. Non examination of medical experts .
As per the Opposite parties, in order to establish medical negligence experts ought to have been examined or referred to medical board for their expert opinion.Even though two doctors namely Dr.R.Karthikeyan , Gastroenterologist and Dr.Narayanan, Nephrologist were examined as complainant side witnesses, 62 they are not experts in gynaecology, surgery or trained in laparoscopic surgery. The witnesses themselves admitted during their deposition that they are not experts in surgery . It is correct that deposition of both doctor witnesses have not helped the complainants to prove the allegation of negligence.
102. Insistence on laparoscopy over open surgery As per the Opposite parties, the complainants and the patient insisted on performing laparoscopic cystectomy with false sense of modesty lest the scars of open surgery should remain on their unmarried daughter and therefore 1 Opposite party had chosen to do laparoscopic cystectomy. Both laparoscopic cystectomy and open surgery are equal effective procedures and laparoscopic copic surgery is an accepted method of treatment and Opposite party 1 is the best arbiter to decide and choose the right procedure to suit the occasion and she is permitted to exercise such an option. The counsel for Opposite party have cited the decision of Hon'ble National Consumer Disputes Redressal Commission in Satya Prakash pant Vs Dr.P.N .Joshi in this regard wherein it was held doctor is not a guarantor of cure and that a doctor is permitted a broad range of judgment in their professional duties and they are not liable for error of judgment that an error of judgment was the result of negligence. We agree with the contention of the Opposite parties that laparocopy is an accepted method of treatment for cystectomy and the Opposite party is not at fault for having selected this procedure. 63
103. In view of the above discussions, it is categorically concluded that the Opposite party no.1 was negligent and did not exercise the required skill as expected of a reasonable professional in conducting the laparoscopy surgery and issue no.2 is answered accordingly and issue no.2 is answered accordingly.
104. Issue No.3 If there was negligence or deficiency, what is the compensation to be given to the complainants?
Compensation
105. Now we come to the question of compensation. Principles for determining compensation to the victims and dependents have been laid by the Hon'ble Supreme Court in various judgments.
106. In Nizam Institute of Medical Sciences's case it was held that if a case is made out, then the Court must not be chary of awarding adequate compensation. The relevant paragraph reads as under:
"39. We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a 64 balance has to be struck, it would be difficult to satisfy all the parties concerned."
106. In Reshma Kumari v. Madan Mohan Hon'ble Supreme Court held that the compensation awarded should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below.„26. The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms."
108. The complainants' counsel has cited the decisions in Erudhaya Priya Vs State Express Transport and Jagdish Vs Mohan in support of their claim that future prospects on advancement in life and career are also to be taken into consideration.
The citations Arun Kumar Agarwal versus National insurance co limited of Hon'ble Supreme Court and National insurance Co. Vs Minor Deepika of Hon'ble Madras High Court also deal with the question of valuing the income of the house wife and are not relevant.
109. Honble Apex Court laid detailed principles for working out the compensation for victims of accidents in Sarla Verma vs Delhi Transport Corporation 65 . "9.Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased"
110. Admittedly the patient Ms.SriRajaRajeswari was a B.Tech graduate and was working in Amazon Development Center India at Bangalore.She was 22 years old at the time of death. She was the only child for her parents. Her father was a shop owner and mother, a home maker.
111. In the light of the principles laid by the Hon'ble Supreme Court in Sarla Verma case and the celebrated Pranay Sethi Case the compensation in this case is arrived as follows:
Monthly income =Rs 20,238 Annual income=Rs.2,42,856/- (Ex.C11) Increase for future prospects(40% of present income)=Rs.97,142/- Total annual income Rs.3,39,998/-
Personal expenses (50% of net income)=Rs.1,69,999/- Multiplier =18 Compensation=1,69,999×18=Rs.30,59,982/-66
112. As the complainants have not claimed any amount as expenditure for the treatment at the Opposite party hospital, no compensation is due on this account.
113. Thus a sum of Rs.30,59,982/- is worked out as the compensation payable for the negligence committed by the Opposite parties. As already discussed the patient and the complainants have contributed to the damage by their non- complying with the instructions of the Opposite parties. Hence it is felt that 25 % of the compensation (Rs.7,64,996)arrived at may be reduced towards this contributory negligence as held by the Hon'ble Apex Court in Municipal Corporation of Greater Bombay case cited supra. Thus the compensation payable to the complainants is Rs.22,94,986(Rs.30,59,982-Rs.7,64,996). The compensation of Rs.22,94,986 shall be paid with 9% from 17.02.2017 i.e date of complaint before this Commission. In otherwise, the opposite party no.1 is working under the opposite party no.2. Both are jointly and severally liable to pay the said sum.
114. Issue No. 4:
In view of the findings in point nos. 1 to 3, the complainants are not entitled to any other relief. Point no.4 is answered accordingly.
115. In the result the complaint is allowed with the following directions.
1. The opposite parties 1 and 2 are hereby directed to pay jointly and severally a sum of Rs. Rs.22,94,986/- (Rupees twenty two lakhs ninety four 67 thousand nine hundred and eighty six only) towards compensation with interest at the rate of 9% from the date of complaint i.e. 17.02.2017 till the realization.
2. The opposite parties 1 and 2 are hereby directed to pay jointly and severally a sum of Rs.5,000/- towards costs.
Dated this the 3rd day of May 2023.
Sd/-
(Justice R. PONGIAPPAN) PRESIDENT Sd/-
(S.SUNDARAVADIVELU) MEMBER Sd/-
(S. OUMASANGUERY) MEMBER LIST OF COMPLAINANT'S WITNESSES:
CW.1 25.05.2017 Thiru.C.Parthiban (1st Complainant) CW.2 Dr.Karthikeyan CW.3 Dr.Narayanan CW.4 09.11.2022 Thiru.S.Jayanthi (2nd Complainant) LIST OF OPPOSITE PARTIES' WITNESSES:
RW.1 29.09.2022 Dr.Latha Chaturvedula RW.2 12.10.2022 Dr.Sasireskha 68 LIST OF COMPLAINANT'S EXHIBITS: Ex.C1 31.03.1993 Birth certificate of the deceased Sri Raja Rajeshwari issued by Puducherry Municipality. Ex.C2 22.01.2016 Death certificate of the deceased Sri Raja Rajeswari issued by Oulgaret Municipality. Ex.C3 02.12.2015 Photocopy of outpatient record of the deceased Sri Raja Rajeswari issued by JIPMER Hospital, Puducherry. Ex.C4 21.01.2016 Photocopy of admission record of the deceased Sri Raja Rajeswari issued by JIPMER Hospital, Puducherry. Ex.C5 06.02.2016 Requisition letter given by the first complainant to the Opposite party hospital. Ex.C6 08.02.2016 Postal acknowledgement card. Ex.C7 18.02.2016 Copy of RTI application submitted by the complainant to the JIPMER Hospital, Puducherry. Ex.C8 19.02.2016 Photocopy of reply given by JIPMER Hospital to RTI application submitted by the complainant. Ex.C9 29.02.2016 Photocopy of reply given by JIPMER Hospital to RTI application submitted by the complainant. Ex.C10 10.05.2016 Photocopy of letter given by the complainants to the Manager, M/s.Amazon Development Centre, Bangalore. Ex.C11 -- Pay particulars of the deceased Sri Raja Rajeswari issued by Amazon Development Centre, Bangalore. 69 Ex.C12 22.01.2016 Photocopy of death report of the deceased Sri Raja Rajeswari issued by JIPMER Hospital, Puducherry. Ex.C13 30.08.2016 Photocopy of advocate notice issued by the complainants to the opposite parties. Ex.C14 -- Postal acknowledgement card addressed to the first opposite party no.1. Ex.C15 -- Postal acknowledgement card addressed to the first opposite party no.2. Ex.C16 -- Postal acknowledgement card addressed to Her Excellency Lt. Governor of Union Territory of Puducherry. Ex.C17 -- Postal acknowledgement card addressed to the Chief Secretary, Government of Puducherry. Ex.C18 07.11.2016 Reply notice given by the JIPMER Hospital, Puducherry. LIST OF OPPOSITE PARTY EXHIBITS : Ex.R1 14.09.2022 Photocopy of Medical records of the deceased Sri Raja Rajeswari issued by JIPMER Hospital, Puducherry. Ex.R2 -- Photocopy of the inpatient records of the deceased Sri
Raja Rajeswari issued by JIPMER Hospital, Puducherry.