State Consumer Disputes Redressal Commission
1. Dr. Fredrick John, And Another vs A.Rajagam @ Velusamy on 12 January, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I A.P.118/2004 (Against order in C.C.No.10/2000 on the file of the DCDRF, Sivagangai) DATED THIS THE 12th DAY OF JANUARY 2010 1.
Dr. Fredrick John, |
2. Dr.(Mrs.) Indra John, | Appellants/Opposite parties Johns Medical Centre, | Subramaniapuram South Extension, | Karaikudi 630 002. | Sivaganga.
Vs.
1. A.Rajagam @ Velusamy, | S/o. Azhagaiah, | Keezha Arumbur, | Thiruveriyur Post, | Thiruvadanai Taluk, | Sivaganga. | |
2. Saraswathi, | S/o. A.Rajangam @ Velusamy, | Keezha Arumbur, | Thiruveriyur Post, | Respondents/Complainants Thiruvadanai Taluk, | Sivaganga. | |
3. Arivazhagan, | S/o.A.Rajangam @ Velusamy, | Keezha Arumbur, | Thiruveriyur Post, | Thiruvadanai Taluk, | Sivaganga. | The respondents as complainants filed a complaint before the District Forum against the appellants/opposite parties praying for the direction to the opposite parties to pay a sum of Rs.3,00,000/- towards compensation for the loss and mental agony for the death of Devarani and Rs.1 lakh as compensation for the illegal operation and Rs.30,000/- for medical expenses and to pay the cost with interest. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.29.09.2003 in CC No.118/2004.
This appeal petition coming before us for hearing finally on . Upon hearing the arguments of the counsels on eitherside, this commission made the following order:
Counsel for the Appellants/Opposite parties : M/s.Sudha Ramalingam, Dr.V.Suresh D.Nagasaila, R.Venkatesh.
Advocates Counsel for the Respdts/Complainants : M/s.B.Sivakumar, and T.Pappaiah Dharmarajan, Advocates.
M. THANIKACHALAM J, PRESIDENT
1. First and second opposite parties in O.P.10/2000 on the file of District Consumer Disputes Redressal Forum, Sivagangai, are the appellants.
2. Tmt.Devarani @ Muthupetchi (herein after called patient) is the wife of the first complainant and mother of minor complainants 2 and 3. She was admitted for ailment of continues bleeding in the uterus in the first opposite partys hospital viz., Johns Medical Centre, on 29.08.1999, in view of the fact, when consulted, she was directed to be admitted as inpatient, on the assurance given by the first opposite party, that upon operation, the bleeding would be arrested.
The patient was operated on 02.09.99, not by the first opposite party as assured, whereas, the operation was conducted by the opposite parties 2 to 4 without the consent and knowledge of the complainants and the patient. The opposite parties, before operation have not conducted necessary tests and based upon old scan, the operation was fixed, which shows the negligence. After operation, the patient complained of acute pain in the abdomen, when the same was brought to the knowledge of the first opposite party, she has not clinically ascertained the cause of pain and even thereafter no proper treatments were given. Once again, without the knowledge of the patient as well as the first complainant, another operation was conducted, that too, not adopting proper care and efficiency. If the first operation had been performed, according to normal standard, there would not have been any chances for second operation, which by itself would suggest, there was negligence and deficiency on the part of the opposite parties.
3. On 04.09.99, the patient suffered breathing problem due to the negligent and improper surgery. Even the request of the first complainant to shift the patient, for proper and better treatment or to get experts opinion was evaded lethargically by the first opposite party, thereby, exposing the carelessness, negligence and deficiency in service, resulting death of the patient on 05.09.99.
4. The first opposite party had collected more than Rs.30,000/- for operation, for that, she has not only refused to give bill, but also neglected to give better treatment, only giving false hope and information as if everything was normal. The opposite parties are guilty of negligence and deficiency since they have not applied the reasonable skill and professional standard, despite timely warning was given for better treatment. The Case Sheet will reveal and prove that the operation and treatment given to the patient were below the normal standard, skill and knowledge coupled with the negligence and deficiency in service, for which, they should be held responsible.
5. The first complainant had lost his wife and the second and third complainants had lost the motherly affection, causing mental agony and suffering, which should be compensated in terms of money. The issuance of a lawyer notice to pay adequate compensation also failed, to yield any result and in this view, the complainants are constrained to file the case, for the recovery for a sum of Rs.3 lakhs as compensation for the loss and mental agony because of the death of Devarani and further sum of Rs.1 lakh, as compensation for the illegal operation and a further sum of Rs.30,000/- for medical expenses, incurred by the first complainant.
6. The opposite parties in their separate Written Version have pleaded as follows, in brief, (since the opposite parties have taken more or less same defence, not extracted separately).
7. The opposite parties have not breached the duty of care owed to the patient, when she was under their care. In the complaint, there is no specific allegation, regarding the alleged deficiency in service or standard of care or degree of care on their part.
The first complainants wife was not a patient of the first opposite party and she was the patient of Dr.Indira Johns patient, the second opposite party.
8. At the request of the second opposite party, the first opposite party assisted her in the proposed surgery of the patient who was posted for total abdominal hysterectomy (TAH) on 02.09.99. The surgery was performed under general anesthesia given by third opposite party by first and second opposite parties for fibroid uterus.
When the patient left operation theatre, she was conscious and all her vital parameters were within normal limits.
9. On 3.9.99, at the request of the second opposite party, the first opposite party examined the patient and both discussed about the condition of the patient and proper management was adopted, including transfusion of blood. After necessary management, though the patient was stabilized, first and second opposite parties opted to perform a laparotomy, which was informed to the first complainant, and after informing the consequences, then obtaining the consent, the surgery was performed, under general anesthesia on 3.9.99 without any hitches. After surgery, when the first opposite party examined the patient on 4.09.99, patient again developed tachypnoea and tachycardia, for which, she was given continuous oxygen, including transfusion of blood also. On 5.9.99, patient had developed respiratory arrest, followed by cardiac arrest. In spite of best efforts taken by the first and second opposite party, to resuscitate the patient, she expired at 4.45 p.m. due to Disseminated Intravascular Coagulation [DIC] and Adult Respiratory Distress Syndrome [ARDS].
The opposite parties have explained the first complainant, about the inherent risks associated with the surgical procedure and therefore, it is false to contend that without consent, second surgery was performed unnecessarily.
10. The opposite parties, who have attended on the patient never strayed away from any of the internationally accepted and tested management methods.
The second opposite party alone, had given treatment and attended delivery for first and second delivery of the patient, and on the basis of that alone, the first complainant had admitted his wife, in the first opposite partys hospital. On 21.7.99, a routine ultra sonogram was performed, which revealed that the patient was suffering from fibroid uterus. Based on this ultra sonogram report and other clinical findings, the patient was advised to undergo surgery, for which, she came back again with bleeding per vagina on 29.8.99 and got admitted at John Medical Centre.
Even after TAH, the patient complained of acute pain in the abdomen, for which, the opposite parties clinically ascertaining the cause of pain and to rule out any bleeding points, and giving blood to combat the DIC, the second surgery was proposed, on the patient which was also informed, explained, consent obtained. The second operation was performed, only to stop the bleeding per vagina caused by DIC.
11. On the forenoon of 5.9.99, the first and second opposite parties rang up to Dr.Ramesh Ardhanari of Meenakshi Mission Hospital, Madurai and explained the condition of the patient, asking to send a Ambulance to shift the patient. Unfortunately, at about 4.30 p.m. the patient developed respiratory arrest followed by cardiac arrest and expired on 4.45 p.m. On the request of the relatives of the patient, the same Ambulance was used, to take the body to their residence.
10. The first and second opposite parties have informed about the nature of the patients illness, accepted, and then only the patient signed the consent to undergo the proposed surgery, which was witnessed by the first complainant. On 3.9.99, when it was decided to perform the second surgery on the patient, the first complainant was informed about the critical condition of the patient and he too, signed his consent for the patient to undergo surgery since the patient was in a critical condition, her signature cannot be obtained.
12. The opposite parties deny the allegations, that the opposite parties provided negligent and deficiency in service to the patient, did not inform the patient and the first complainant about the treatment and its risks, did not perform the first surgery properly which led to the second surgery and that did not shift the patient to Madurai for further management. All the opposite parties as prudent medical practitioners, have adopted the standard skill required in giving care to the patient and they never shirked their responsibility while rendering service, and therefore there is no question of negligent act or deficiency in service.
The claim of the complainants, for compensation is based upon untenable allegations. The other allegations in the complaint are denied as false, thereby, prayed for the dismissal of the complaint.
13. The District Forum receiving affidavits from the parties, exhibiting Ex.A1 to Ex.A3 and Ex.B1 to Ex.B6, analyzed the rival contentions of the parties, based upon the medical literature also, came to the conclusion that the first and second opposite parties, have not taken sufficient and precautionary measures before performing the surgery, that while performing Total Abdominal Hysterectomy [TAH], the first and second opposite parties have not adopted the standard practice and their conduct would suggest that there was improper treatment, that though the surgery performed are medically acceptable, the fact they did two surgeries for the same treatment, immediately, would suggest that the second surgery was performed in order to cover the negligence act of the first and second opposite parties, during the first surgery, that because of the deficiency in service on the part of the first and second opposite parties, the patient who came to the hospital with consciousness, had lost her life, that before performing the surgery, on 2.9.99, they failed to take fresh scan and relying on the old scan, would amount to deficiency, that it is doubtful, whether the first and second opposite parties would have transfuse so much of blood, when it is said, the patient was suffering from Disseminated Intravascular Coagulation and that when the records would reveal that there was no bleeding per vagina or external bleeding, the decision taken for re-laparotomy was not explained, which should be construed as deficiency in service.
On the basis of the above findings mainly, further finding fault in the medical records also as corrected, the Trial Forum has come to the conclusion that the patient died only because of the improper treatment given by the first and second opposite parties and in this way, they committed not only negligent while performing their duties as Doctors, but also committed deficiency in service. At the same time, the Trial Forum felt, that no role has been played by the third opposite party which would have caused death though he administered Anesthesia, thus he was relieved. As far as the 4th opposite parties is concerned, the finding is, she has not played any role in the treatment given to the patient which is the case of the 4th opposite party also, as per the Written Version. In this view, the opposite parties 3 and 4 are relieved and the complaint against them was dismissed. In view of the fact, the patient died, the first complainant lost his wife, second and third complainants lost their mother. Taking into the consideration the age of the mother, motherly affection lost to the children, quantified the compensation for the first complainant at Rs.50,000/-, for second and third complainants Rs.1 lakh each, thereby, totally awarded a sum of Rs.2,50,000/- with cost, against the first and second opposite parties, directing them to pay the amount with interest.
14. The first and second opposite parties aggrieved by the said order, have questioned the same, on various grounds in this appeal.
15. The complainants, have not challenged the dismissal of their complaint against the 3rd and 4th opposite parties and therefore, the findings as against them, reached finality.
16. Heard the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
17. Mrs.Devarani wife/mother of the complainants was admittedly known patient to the second opposite party, in view of the fact, that the first child was delivered by the second opposite party by LSCS in May 1986 and the second opposite party delivered her second child, by vacuum extraction in December 1988.
In view of the confidence, deposed by the complainants, when the patient was having excessive bleeding per vagina and lower abdominal pain, they have consulted the second opposite party and the second opposite party also treated the patient conservatively, which has not yielded the desired result. Therefore, when the patient approached the second opposite party, once again on 21.7.99, ultra sonogram was performed which revealed, the patient was suffering from fibroid uterus, for which, she was advised to undergo surgery, probably to get permanent relief. Immediately, it was not accepted and once again on 28.8.99, the patient came back, complaining of bleeding per vagina and got admitted at John Medical Centre, owned by the first opposite party, at the advise of the second opposite party, where the second opposite party initiated all the corrective measures to stop her bleeding.
Clinically and otherwise, examining the patient, the second opposite party appears to have decided to perform Total Abdominal Hysterectomy [TAH], for which, she had consulted the first opposite party also, who examined the patient, suggested that operation may be fixed on 2.9.99. Thus, first and second opposite parties, having decided to perform TAH, requested the third opposite party/Anesthesist to examine the patient and also took advise of one Dr.M.Chandrasekar, M.D., Consultant Physician, who had examined the patient. On their agreeing, after examination, satisfying about the condition of the patient, surgery was performed on 2.9.99 at 5.15 a.m. After surgery, it seems, the patient was conscious and all her vital parameters were within normal limits. Unfortunately, on 3.9.99, examination revealed, the patient became pale, tachypnoeic and dyspnoeic as well pulse rate also varying. Thereafter, considering the condition of the patient, first and second opposite parties, opted to perform a laparotomy to rule out any bleeding.
In this view, on 3.9.99 at about 11.00 a.m. surgery commenced and after surgery, as reported, the patient was stable.
Again on 5.9.99, the patient continued to have tachypnoea and tachycardia, for which, first and second opposite parties, even consulting some other Doctors, did their best to manage, but unfortunately the patient collapsed at 4.45 p.m. at 5.9.99.
18. The complainants, aggrieved by the death of Mrs.Devarani, after obtaining medical records, from the first and second opposite parties, probably on perusal, or otherwise felt that the opposite parties have not performed their duties properly. Thus, accusing on various grounds, claim was made for a sum of Rs.4 lakhs and the trial forum, conceded by issuing an order for Rs.2,50,000/-, thereby, causing grievance to the first and second opposite parties, resulting this appeal. As far as the above narrated events are concerned, we find no dispute.
19. By going through the pleadings, it is seen, it is not the case of the complainants, that the opposite parties have concocted the case records or manipulated the case records, or corrected the case records, as the case may be, in order to suit their case. But the trial forum has given a finding as if some corrections were made in the case records.
Taking clue from the said finding, in the Written Argument, it is alleged that the records are concocted and to support the same, as rightly submitted by the learned counsel for the appellants, we find no pleadings and we are certain, there is no other indication also, to draw an inference even the first and second opposite parties could have corrected the records, as if including the words Fibroid Uterus. It is not the case of the complainants, that the patient was not suffering from Fibroid Uterus. The Ultra Sonography Report dated 20.02.98 (Ex.A1) as well as the subsequent Ultra Sonogram dated 21.7.99, would reveal that the patient was suffering from Fibroid Uterus. Therefore, the finding of the lower forum, as if that the word Fibroid Uterus have been inserted, in the Case Sheet, then coming to conclusion that on basis, deficiency of service on the part of the opposite parties 1 and 2 is not well founded.
20. The opposite parties have filed affidavits, they have also produced the medical records. If the complainants had felt, that the records relied on by the opposite parties are not true or manipulated, then they should have challenged the same, calling the opposite parties into the box, for cross-examination, bringing the alleged manipulation to the concerned opposite parties. In this case, there is not only absence of pleadings, but this procedure is also not adopted. This being the position, as rightly submitted by the learned counsel for the appellants, the finding given by the District Forum, suo motto that the case records was manipulated is erroneous and even we would say, unwarranted under the facts and circumstances of the case and in this view, inference drawn, affixing negligence or deficiency in service must go.
21. The main grounds alleged in the complaint attributing negligence or deficiency in service are:
(1) before operation, necessary precaution tests were not conducted;
(2) that after operation, the opposite parties have not clinically assessed and ascertained the cause of pain;
(3) that without the knowledge and consent of the first complainant as well as the patient, the second surgery was performed, which would suggest the first surgery was not done with due care and diligence, applying the medical skill required for a qualified doctor;
(4) that because of the deficiency and negligence act in the first operation, to cover the same, second operation was done and (5) that for the above reasons, the opposite parties are guilty of negligence and deficiency in service, in addition, in view of the fact, they have not applied the reasonable skill and professional standard. All the above allegations are only general accusation, and not with reference any specific incidents, or act, pointing out, how and at what point of time, the standard medical care available for treating the patient was deviated or offended, thereby, causing problems to the patient. Therefore, as rightly submitted by the learned counsel for the appellant, the complaint itself is lacking particulars, regarding the alleged negligence and deficiency of service. Be it as it may. The general allegations/accusations if proved, amounting to negligence or deficiency, nothing wrong in proceeding against the opposite parties and in this view, we have to proceed further.
22. In order to establish the averments or allegations in the complaint, admittedly, on behalf of the complainants, no expert evidence has been let in, the admitted position being, the first complainant who has filed an affidavit is not an expert. On the side of the complainant only 3 documents are exhibited, out of which, two relate to Scan, one relates to payment for the purchase of medicines, which will not generally prove the allegations leveled in the compliant.
Therefore, it can be safely said, the complainant failed to let in any expert evidence, to prove the medical negligence on the part of the opposite parties.
23. It is the basic duty of the complainant to prove the alleged medical negligence, at the first instance, atleast prima-facie, and then only, if at all we could say that the opposite parties failed to discharge their burden, when the burden is shifted on the otherside. In a case of like this nature, expert evidence is a must, and in the absence of expert evidence, only accepting the affidavit of the layman viz.
the complainant herein, ordinarily we cannot come to the conclusion, that the opposite party should have committed negligence. We are fully aware of the position even in the absence of expert medical evidence also, when there are intrinsic evidence available, in the available records, indicating the negligence said to have been committed by the opposite parties, that could be taken as proved and in that situation, the non-examination of the expert may not loom large. On the other hand, if the documents relied on by the otherside are acceptable in nature, in other words when it is not shown, prepared for the occasion, and when those documents are in accordance with the procedure prescribed for this kind of problem, then, in the absence of expert opinion, to point out that the entries made by the opposite parties in the case record are incorrect, or it should have been subsequently prepared, then the non-examination of the expert witness may amounts to fatal to the case of the complainant.
24. It is the submission of the learned counsel for the complainants/respondents, that the medical records relied on by the opposite parties are sufficient to prove the negligence committed by the opposite parties.
Except the said argument, for the reasons, we are going to assign herein, we have no specific evidence, to inform or expose which entries are incorrect, or which procedure noted in the medical records are the deviation of the protocol prescribed, for this kind of treatment. Therefore, the submission on the behalf of the complainants, that the records filed by the opposite parties prove the negligence, is unacceptable to us. In this context, before going into the factual position of this case, it is useful for us to remember the law laid down by the Apex Court, in the case of medical negligence as well it will be useful to recollect the nature of disease, for which, treatment given and the standard management available as per the Text.
25. It is the specific case of the opposite parties that the patient died due to Disseminated Intravascular Coagulation [DIC] followed by Adult Respiratory Distress Syndrome [ARDS]. As per the medical literature DIC or Disseminated Intravascular Coagulation is a rare compication involving the malfunction of the blood clotting mechanism, as her body tries to break down the blood clot behind the placenta. DIC is a complicated process, but to try and oput it simply, it is the end result of two opposing physiological factors.
On the one hand, massive amounts of small blood clots from throughout the extremities of the womans body. All these small clots use up most of the bodys platelet stores. The consequences of this is a lack of platelets in the rest of the womans body, causing widespread internal haemorrhaging. This is a life-threatening complication generall requiring the woman being admitted to an intensive care ward. In the Book Complications of Pregnancy editors Sheldon H.Cherry, M.D.,, in the case of DIC, what are the management to be followed are given as follows (1). Restoration of blood volume with crystalloid, packed cells, and colloid (e.g. albumin-containing solutions). In these circumstances central monitoring is helpful to avoid fluid overload; an indwelling urinary catheter also is necessary to follow fluid status.
(2). Correction of the anemia, thus restoring normal oxygen-carrying capacity and preventing hypoxia and academia. (3). Correction of the acid base status. (4). Precaution of renal failure.
Rapid attention to correction of blood volume to maintain renal perfusion will avoid acute renal insult.
An indwelling urinary catheter will give a rough indication of renal perfusion and fluid state. (5). Correction of the coagulopathy. In cases of dilutional coagulopahty, if the patient is no longer bleeding heavily after stabilization, additional transfusion of coagulation factors may not be necessary. In the case on hand, the above said methods are followed, as disclosed by the medical records, and we would say that there was no negligence on the part of the first and second opposite parties in the process arresting the hemorrhage in Disseminated Intravascular Coagulation [DIC].
26. It is medically established that DIC can be an explosive and life threatening bleeding disorder frequently associated with obstetrical catastrophes, as seen from the book Principles of Internal Medicine by Harrison, where we find DISSEMINATED INTRAVASCULAR COAGULATION [DIC] can be either an explosive and life-threatening bleeding disorder or a relatively mild or subclinical disorder. Although there is a long list of diseases complicated by DIC, it is most frequently associated with obstetrical catastrophes, metastatic malignancy, massive trauma. ACUTE RESPIRATORY DISTRESS SYNDROME [ARDS] is explained that This describes the acute, diffuse pulmonary inflammatory response to either direct (via airway or chest trauma) or indirect blood-borne insults that originate from extra-pulmonary pathology. It is characterized by neutrophil sequestration in pulmonary capillaries, increased capillary permeability, protein-rich pulmonary oedema with hyaline membrane formation, damage to type 2 pneumocytes leading to surfactant depletion, alveolar collapse and reduction lung compliance. If this early phase does not resolve with treatment of the underlying cause, a fibroproliferative phase ensues and causes progressive pulmonary fibrosis. It is frequently associated with other organ dysfunction (kidney, heart, gut, liver, coagulation) as part of multiple organ failure. Based upon the above literature, before scanning the medical records, it would be better to understand the negligence, especially professional negligence, relating to doctors profession.
27. Generally, it is said negligence is breach of duty caused by omission to do something which a reasonable man, guided by those consideration which ordinarily regulate conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. It is ruled by the National Commission as well as the Apex Court that the negligence complained must be proved by evidence or through any expert evidence or through medical literature, indicating that the doctor who treated was not qualified or incompetent to handle the case or what he did should not have been done, resulting, any injury to the patient. In this case, we would say not even an attempt has been made to discharge the above duty, even drawing our attention to any medical literature, then taking us to the medical records, exposing how first and second opposite parties have acted negligently or if they have deviated, what procedure, under which circumstances it was deviated that offended the patient resulting collapsed.
28. The Fora or the Court which is expected to decide the case on merit, cannot base its decision under presumption or surmise, unless the law mandates certain presumptions. As rightly pointed by the learned counsel for the appellants, as seen from the findings of the District Forum, the District Forum mostly proceeded on the basis of presumption, as if the opposite parties should have committed deficiency, thereby, rendering presumptive judgement, which is not legally acceptable.
29. When there is no expert evidence to prove that the opposite parties have failed in their duty or failed to follow the medical standard, we have no reason to reject the affidavits filed by the opposite parties as well the medical records prepared by them then and there, since their qualification are not under challenge and it is also not the case of the complainants, that they are unqualified or not skilled to handle the problems of the patient, as reported. In this view also, we should say that the complainants failed in their duty, and this being the position, it is not known, how the District Forum had affixed the seal of negligence upon the opposite parties.
30. The Apex Court of the land, in the celebrated case Jacob Mathew Vs. State of Punjab & Another, reported in (2005) 6 SCC 1, has held that it should be shown that the doctor against whom a medical negligence is attributed, did something or failed to do something, which in the given facts and circumstances, no medical professional in his ordinary sense, and prudence would have done or failed to do, and that the death should be the direct result of negligent act of the doctor, and the act alleged must be the proximate and efficient cause without the intervention of any other negligence, and in this kind of cases alone a doctor could be held responsible, warranting tortuous liability, which is also reiterated in Nizam Institute of Mdical Sciences Vs. Prsanth S.Dhananka & Others, reported in 2009-4-LW Part 1, followed in Martin F.D.Souza Vs. Mohd. Ishfaq reported in AIR 2009 Supreme Court 2049, wherein it is said A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct feel below that of the standards of a reasonably competent practitioner in his field.
. It is further observed that an error of judgement may or may not be negligent.
It depends on the nature of the error , further concluding The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
31. It is also the dictum of the Apex Court that Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
32. In Postgraduate Institute of Medical Educational and Research, Chandigarh Vs. Jaspal Singh and Others, the Apex Court reiterated the settled position regarding, the professional negligence which reads 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 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. Then coming to the burden of proof, it is the dictum of the Apex Court that In the medical negligence actions, the burden is on the claimant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioners breach of duty. On the basis of the above settled preposition of law, the evidence in the present case has to be evaluated, when it is specifically alleged by the complainants, that the opposite parties have committed lack of care and cautions thereby committed medical negligence.
33. Now, we take the main accusation leveled in the complaint at Para 4 regarding alleged necessary precaution tests were not conducted before operation. The District Forum also has taken this allegation, so serious and gave a finding that not taking fresh Scan amounts to deficiency in service [Page 21 of the order].
The patient was admitted on 29.8.99.
As seen from Ex.B1 and Ex.A3, on three different occasions, namely 20.2.98, 21.7.99 and 26.8.99, scans were taken that is Ultra Sound Scan.
Ex.A3-Scan was taken on 26.8.99, that is just three days before the patient was admitted in the hospital, which revealed, Myoma uterus, that is Fibroid Uterus commonly known. The same was the impression previously, also.
Therefore, if any Scan had been taken just prior to the operation on 2.9.99, there would not have been any change since all three scans reports have confirmed Fibroid Uterus. Therefore, the conclusion of the District Forum if Scan had been taken prior to 02.09.99, that would have disclosed the correct position, and subsequent problem would not have arisen, is factually erroneous and on this ground, we are unable to fix any medical negligence on the part of the opposite parties.
34. Ex.B1 is the entire medical records, maintained for the treatments given to the patient commencing from 29.8.99 ending 5.9.99, till expiry.
As seen from the records, not seriously challenged, on 30.8.99 grouping and typing adopted, previous history are also noted and anticipation of the problem, one pint of blood also sought to be reserved. On the basis of the blood grouping, transfusion of blood namely B Postive, (transfusing the blood obtained from the donor) not challenged and we are having the list of donors also, and there are corresponding entries, in the case records also. Before operation, on 30.8.99, necessary tests were conducted, such as X-ray, ECG taken including STRESS ECG also. Therefore, it is futile on the part of the complainants to content necessary tests were not taken, leading to complication, which was unfortunately accepted by the District Forum, that as if no necessary precaution tests were conducted by the opposite parties and as if on the basis of the Scan taken on 21.7.99, alone the patient was taken for operation. In this view, the negligence attributed at Para 4 of the complaint is liable to rejected.
35. In Para 5 of the Complaint, it is alleged, if due care and caution with skill and professional knowledge were taken, there would not be any chance for second surgery and because of the fact, the second operation had taken place, according to the complainants it is negligent and deficiency.
This is also accepted by the District Forum, as if the opposite parties have not given any reason for second surgery. The learned counsel for the appellants as an answer to the said finding and to demonstrate the said finding is erroneous, drew our attention to Ex.B1 itself. In Ex.B1, on 3.9.99 from 3.30 A.M., it is noted Pt. C/o. Abdomen Pain & Distension & difficulty in breathing. Similarly, at 4.00 a.m. the noting says Pt. has sweating & breathing difficulty.
Pallor +. At 4.30 a.m., it is said Case discussed with Dr.Fredrick John, gen. surgeon. Dr.Chandrasekar, M.D. Physician & Dr.Raju, Anaesthetist & decided to perform re-laparotomy. Despite Total Abdominal Hysterectomy, the problem was not solved and the patient had pain in the stomach continued, and even the abdomen was bulging that is why Distension noted. It is the case of the opposite parties as per the medical records also, there was no bleeding per vagina and note says P/A No bleeding externally Distention + Further, low HP count also noted. The above symptoms, as per the medical literature, as urged before us, would signify internal bleeding, which is not known, suspected on the basis of the clinical examination. In order to rule out the possibility of the bleeding, and in order to know what is the cause for the distension and pain in the abdomen, as per the affidavits of first and second opposite parties, even after consulting one Dr.Chandrasekar, as per the noting available on 3.9.99 at 4.30 a.m. the first and second opposite parties have decided to perform the laparotomy. It is also the judgement of the first and second opposite parties, if the laparotomy was not done, the patient could have collapsed, due to the diffuse abdominal oozing, which in turn Hypovolemia and shock.
The Anaesthesia Chart also would reveal that the patient was loosing a lot of blood, wherein, it is noted Hemoglobin count had dropped to 6.0 hg. In view of the above facts, as diligent doctors having duty to safe the patient, who had come to the Clinic, the first and second opposite parties, have decided to perform re-laparotomy, in which, we cannot find any fault since it is also an admitted standard procedure, to solve the problem in this kind of cases, even as recorded by the District Forum. The very fact, in so many words, the opposite parties have not stated in the case record, will not erase the impression, which lead them to take the decision to perform re-laparotomy. Therefore, as concluded by the District Forum, we are unable to say the first and second opposite parties have failed to assign reasons, in the medical records.
36. It is specific case of the opposite parties, that they have informed the situation to the first complainant, and the first complainant also understand the problem, has given risk consent form, which is evidenced by the Risk Consent Form dated 3.9.99, wherein, the first complainant had signed.
Therefore, it is futile on the part of the complainants, that the condition of the patient was not informed and without obtaining the consent, surgery was performed, which should be construed as negligence.
37. It is an admitted position, Total Abdominal Hysterectomy [TAH] is the standard management, to solve the problem of continuous bleeding, which the patient was suffering in this case. For performing this operation, consent was obtained, from the patient which was countersigned by the first complainant also as seen from the consent form dated 2.9.99. We are not here, to say that mere consent given by the patient, will relieve the doctors who committed negligence, for that, the negligence should be established.
Here, except the dead letters, regarding the alleged negligence and deficiency, though repeatedly said, we find no alive letters to give life to the said allegation,s and as adverted above, the complainants have failed to lead expert evidence to eclipse, the medical records which is in accordance with the standard protocol, to be followed in this kind of cases.
38. The learned counsel for the complainants/respondents urged that as per the medical records, there was no bleeding after TAH from 2.9.99 at 7.00 a.m. onwards till 5.30 a.m. on 3.9.99 and therefore, there would not have any necessity, to perform re-laparotomy and the very fact, the first and second opposite parties have decided to perform the said surgery, would suggest that the first surgery was not proper or the second surgery was unnecessary which alone caused DIC and in this view, they should be squarely responsible as if they had committed negligence or they have not followed the standard treatment prescribed. It is not the case of the opposite parties, that there was external bleeding and in order to control the same, second surgery was performed. As seen from Para 12 of the Written Version, it is the specific case of the opposite parties, that the cause of bleeding per vagina after the first surgery in the patient was Disseminated Intravascular Coagulation [DIC], which is an inherent risk, associated with the surgical procedures, and on the occurrence of which, the doctors attending on the patient had no control and in this view, to stop the bleeding caused by DIC, the second surgery was performed. The bleeding may be internal, as well external. The doctors did clinical examination, which revealed there was symptoms indicating of internal bleeding. Since it was not oozing per vagina externally, as noted in the case records, it is said No bleeding that does not mean the patient had no hemorrhage at all, and in fact the patient had internal hemorrhage, and on suspicion to rule out the possibility, re-laparotomy performed. Therefore, the indication in the medical records that there was no bleeding externally per vagina will not lead us to conclude, that the patient had no hemorrhage at all, and therefore the second surgery was unwarranted.
39. As per the records available, the second surgery had not created any problem while surgery was in progress and only after surgery, that too, after stabilization, on 5.9.99, the patient reported breathing problem, sweating etc., which was suspected as Adult Respiratory Distress Syndrome or Pul. Embolism, for which also, they have consulted Meenakshi Mission Hospital at Madurai, who advised to shift the patient, which is also admitted by the complainants. At 3.00 p.m. when the patient became restless, severely dyspnoeic and the idea to shift to Meenaskhi Mission Hospital was withheld, and subsequently the condition become worse, because of Tachypnoea and tachycardia.
They have also adopted all methods including indubated and ventilated, but there was no improvement. When the patient was gasping at 4.30 p.m., cardio pulmonary resuscitation also done, and in spite of all resuscitation efforts, the doctors were unable to revive the patient since DIC with pulmonary Resuscitative over took the doctors effects, resulting the end of the patient.
40. By going through the documents entirety, carefully, as well as the literature pointed by the learned counsel for the appellants and applying the dictum of Supreme Court, we are of the considered opinion, that at no point of time, the doctors have violated any of the standard protocol, whereas, they took all possible effective steps, as prudent, diligent as well as skillful doctors, to save the patient, but their efforts ended in vain, which could not be equviated, as negligence as described by the complainants, which was unfortunately accepted by the District Forum. The steps taken by the Doctors also comes within the parameters, laid down by the Apex Court, thereby, relieving, them from the alleged professional negligence and therefore making them liable for the death is impossible. For these reasons, the appeal deserves to be accepted, erasing the findings of the District Forum.
41. In the result, the appeal is allowed, setting aside the order of the District Forum in O.P.No.10/2000 dt.29.09.2003, and the complaint is dismissed.
Considering the facts and circumstances of the case, the parties are directed to bear their cost throughout.
42. The Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellants/ opposite parties, duly discharged.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Ns/d/mtj/Medical