State Consumer Disputes Redressal Commission
Dr. Su Thillaivallal , Venkateswara ... vs Rajarathinam on 19 January, 2022
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI
BEFORE : Hon'ble Thiru. Justice R. SUBBIAH PRESIDENT
Tmt Dr. S.M.LATHA MAHESWARI MEMBER
F.A.NO.181/2013
(Against order in CC.NO.481/2007 on the file of the DCDRC, Chennai (South)
DATED THIS THE 19th DAY OF JANUARY 2022
Ms. Venkateswara Hospital
Rep. by Dr.Su Thillaivallal
No.121-A, (New No.36A) M/s. Anand, Abdul & Vinodh Associates
Chamiers Road, Nandanam Counsel for
Chennai - 600 035 Appellant /1st Opposite party
Vs.
1. Rajarathinam
S/o. Natarajan M/s. C.N.Raman
No.4, Yadav Street Counsel for
Virugambakkam, Chennai - 600 92 Respondent / Complainant
2. M/s. Oxaid India Gases (P) Ltd.,
Rep. by its Authorised Signatory
New No.72, Royapettah High Road Served called absent
Chennai - 600 014
3. N. Duraikannan
S/o. Natarajan M/s. D. Lakshmi Dharan
No.67, 85th Street, Ashok Nagar Counsel for
Chennai - 600 083 2nd & 3rd Respondents/ 2&3 Opposite parties
The 1st Respondent as complainant filed a complaint before the District
Commission against the opposite parties praying for certain direction. The District
Commission had allowed the complaint. Against the said order, this appeal is preferred by
the 1st opposite party praying to set aside the order of the District Commission
dt.11.2.2013 in CC.No.481/2007.
This appeal coming before us for hearing finally today, upon hearing the
arguments of the counsel appearing on bothside and on perusing the documents, lower
court records, and the order passed by the District Commission, this commission made
the following order:
ORDER
JUSTICE R. SUBBIAH, PRESIDENT
1. This appeal has been filed by the 1st opposite party as against the order dt.11.2.2013 passed by the District Commission, Chennai (South), in CC.No.481/2007, in 2 allowing the complaint by directing the 1st opposite party to pay Rs.5,00,000/- towards medical negligence alongwith cost of Rs.5000/-.
2. The appellant is the 1st opposite party, and the 1st Respondent is the complainant and the 2nd and 3rd Respondents are the 2nd and 3rd opposite parties respectively before the District Commission. For the sake of convenience, the parties are referred as ranked before the District Commission.
3. The brief facts of the complaint before the District Commission are as follows:
The complainant's son was suffering from lungs problem, hence he approached the 1st opposite party for treatment. But the 1st opposite party had given a wrong treatment for the complainant's son. No proper medication was given. Since the complainant believed the treatment of the 1st opposite party, he has not approached any other doctor. Finally 1st opposite party discharged the complainant's son on 5.11.2005. The 1st opposite party has given a direction to the 2nd and 3rd opposite parties to provide oxygen connection and machine. Since the 2nd and 3rd opposite parties were not well versed in that field they have not properly fitted the connection. As a result of which the complainant's son died on 23.11.2005. Since there is a negligence in the treatment given by the opposite parties, the complainant was forced to file the present complaint.
The complainant would further state that his son was actively practicing cricket game, and when the complainant had approached the 1st opposite party for the first time, he gave assurance that the complainant's son will be cured since it is a minor problem, and it is a curable disease. In view of the confidence given by the first opposite party, the complainant had not approached anyother doctor. Because of the wrong treatment of the opposite parties, the complainant's son died. Hence the present 3 complaint was filed claiming compensation of Rs.10,00,000/- alongwith a sum of Rs.1,50,000/- towards medical expenses and cost of Rs.25000/-.
4. The said complaint was resisted by the 1st opposite party, denying all the allegations made in the complaint as follows:
The 1st opposite party is a reputed hospital in south Chennai. The medical team at the 1st opposite party hospital is headed by Dr.Su.Thillai Vallal, who has about 18 years of experience in the field of cardiology. The team at this opposite party hospital includes well-qualified and experienced doctors in all the departments. The hospital has doctors on call throughout the day and night, it also includes an energetic and well mannered team of nursing and paramedical staff.
The complainant's son R.Alagu Murugan, 26 years, came to the 1st opposite party on 24.8.2005 for the first time with a complaint of severe breathlessness upon exertion, and on consultation about his past medical history, it was found that he had been having severe breathlessness for the past 15 years, which had intensified more in the past 10 days with Paroxysmal nocturnal dysnea (breathing difficulty at night). Cough with expectoration and wheezing had been experienced by the patient for the last 10 days. The patient was diagnosed to have a congenital heart disease since childhood. The relevant records revealed that the patient was diagnosed to have a condition known as VSD (Ventricular septal defect) with pulmonary hypertension and he was treated with Tablet Digxin, Lasix, Potklor and Tablet Pencilin from 18.1.1980. The records from the Institute of Child Health and Hospital and from the Government General Hospital, would clearly show the above medical history right from the time when he had been treated as a child for congenital heart disease. But the complainant had suppressed many material facts pertaining to the past pre-existing condition of his son while filing the complaint. Hence the complainant having come before this forum with unclean hands and guilty of 4 suggestio falsi and suppressio veri. Upon examination and investigations of the patient the following diagnosis was reached by the opposite party viz.
a. Congenital Heart Disease- large VSD (sub aortic), pulmonary hypertension - severe congestive cardiac failure.
b. Mitral Valve prolapsed - anterior mitral leaflet, mitral regurgitation - mild c. Pulmonary Koch's disease (TB of the lungs) d. Patchy consolidation of lingular and right upper lobe e. Emphysema (Hyper inflation of some portion of the lung) On admission he had profuse sweating, marked breathing difficulty and swelling of both legs and bilateral gynaecomastia (probable side effect of enlargement of breasts due to cardiac drugs taken earlier). The pulse rate was 140 to 160 and it was irregular. He had symptom of serious heart failure.
Due to patient's serious condition it was decided to admit him in the ICU and start relevant treatment and medication immediately. Upon admission on 24.8.2005 the relevant investigations were carried out. Serial ECG's revealed irregular heart rhythm with VPD's and features of arterial enlargement, left ventricular conduction delay and diffuse ST - T Changes. After admission the patient's progress and condition was monitored carefully with extreme diligence.
X-ray revealed gross cardiomegaly, CTR-0.70, LV contour, prominent pulmonary arteries due to pulmonary hypertension, hilar congestion, pulmonary venous hypertension grade III, features of Pulmonary oedema, features of consolidation involving both midzones, hyper inflated left upper zone.
The Mantoux Test was positive 15 X 18 mm and his sputum for AFB was positive on three consecutive days on 26.8.2005, 27.8.2005 & 28.5.2008 confirming TB infection in the lungs.
As per proper procedure due to the condition of the patient, the 1st opposite party also decided to do an ECHO.
The ECHO (VH) report was as follows:
. Large Ventricular Septal defect - sub Aortic
. Pulmonary hypertension - severe
5
. No tricuspid regurgitation
. Mitral valve prolapsed - anterior mitral leaflet
. Mitral regurgitation - mild. Gross left ventricular enlargement.
5. In view of the serious nature of illness due to heart and lung disease the patient had required ventilator support which was informed to the patient's father the complainant herein, who in turn signed the consent form for ventilator support. He was given oxygen through ventilator, inj. Lanoxin, Dobutrx inj. Lasix antibiotics, inj.
Cordarone and other supportive medications and vitamins and was also nebulised with Levolin and Ipravent.
Due to the hyper inflated left upper zone in the chest x-ray and also TB of the lungs the 1st opposite party herein referred the patient to Dr.Seshank MS., MCH, Cardio Thoracic Specialist for examination and for his expert opinion on 25.8.2005. The specialist opined that there was a possibility of bullae in the left upper lobe or loculated pneumothorax and suggested that a CT scan of the chest should be done.
On 26.8.2005 as per Dr.Seshank's instructions the CT was done HRCT scan of chest: CT features were suggestive of . bilateral multifocal emphysematous changes / mosaic perfusion with hyperinflation of left lower lobe in the upper thorax.
. Patchy consolidation in the lingual and right upper lobe
. Cardiomegaly with dilated main pulmonary artery and its branches
. No evidence of pneumothorax
6. Once the patient's general condition stabilized he was weaned of the ventilator and then he was shifted to the room on the 27.8.2005 with appropriate medication. As the patient had VSD with PHT he was seen by a senior Cardio Thoracic Surgeon, Dr.Natesh Kumar, MS, MCH, FRCS, Dr.Naresh Kumar stated that in order to rule out immuno compromised state in the patient the doctor conducted the HIV, HBSAg, HCV, VDRL and outcome of the results were observed as negative for HIV, HBSAg and HCV, and for VDRL it showed as Non-reactive. Sputum for AFB was seen (1+). He suggested 6 to continue the medical management and after stabilization of the patient's condition to plan cardiac catheterization study after 2 to 3 months to plan further management.
Due to the extremely serious nature of his condition the 1st opposite party requested another consultant cardiologist Dr.Arul, MD, DM, Consultant Cardiologist for a second opinion. Dr.Arul noted in the hospital records as "diagnosed as having congenital heart disease from childhood (VSD + PHT with bi-directional shunt- documented from 1980). Now hospitalized with severe pulm HTN and pulm TB. The treatment is appropriate and was advised to continue the same medication. The serious nature of the disease and high risk for life was explained to the family members. Thus the senior cardiologist also concurred with the line of treatment followed by the 1st opposite party. On 29.8.2005 the patient was seen by Dr.Tamilvannan, MD, Senior consultant Physician, Ex-Director of Medicine, Madras Medical College for Respiratory infection and sputum AFB positivity. The patient was advised to start ATT (Anti TB treatment). Likewise Dr.G.S.Kailaash, MD, DTCD, MACP, FCIP, MABMS, Chest Physician for his respiratory condition on 29.8.2005, also advised to start anti TB treatment. The patient at the time of discharge felt better, was asymptomatic and able to walk to the toilet.
7. Therefore the patient was discharged in a stable condition, highly improved from the critical state requiring ventilator support in which he was admitted. The specialized doctors, duty doctors and staff in the 1st opposite party's hospital discharged their duties in an extremely professional and correct manner. He was advised home oxygen therapy and TB medication cardiac drugs supportive vitamin and inhalers for his lung. The patient was advised to review with Dr.S.Thillai Vallal after one week on 8.9.2005.
8. In view of the serious nature of the illness the patient could not wait even for one week but had to come earlier for admission on 5.9.2005 as an emergency to the ICU. 7 The 1st opposite party had called for another expert opinion of Dr.I.Sathyamurthy MD., DM., Director of Cardiology, Apollo Hospitals. He also opined the same as VSD with pulmonary hyper tension and advised same line of management including ATT. He had also further opined that after 1 to 2 months the patient needed catheterization and angiography to decide regarding further line of management.
Subsequently Dr.Srihari was called in AB (Medicine), AB (Critical Care), AB (Pulmonology). He also agreed for the same line of Management and to review after two months with fresh HRCT of the chest. The patient was stabilized and was discharged on 12.9.2005. He was advised to come for review on 19.9.2005 at 10.00 am. But the patient came on 19.9.2005 at 7.30 pm as an emergency for ICU admission. The 1st opposite party doctors arranged for the patient to be seen by three cardiac surgeons viz. Dr.S.Vijayshankar, Senior Cardiac Surgeon from Apollo Hospital, Dr.N.Madhusankar, MS., Ph.D., .DMNAMS Senior Cardiac surgeon from Frontier Life Line Hospial, Mugappair and Dr.R.K.Seshank MS., MCH., (Cardio Thoracic Surgeon) from Government General Hospital. All of them opined that due to the critical nature of illness the patient needs to be stabilized for about 2 months and subsequently needs cardiac catheterization test and then to decide cardiac surgery. Heart and lungs transplantation which carries very high risk for his life. He was stabilized and discharged on 13.9.2005. Subsequently again the patient was admitted as an emergency on 28.10.2005 at 11.10 am. in serious condition requiring ventilator support. He was given all supporting cardiac medicines lung medicines and supportive vitamins and other medications. He was stabilized and discharged on 5.11.2005. On the day of discharge patient felt better and his father gave it in writing that they were satisfied with the treatment at Venkateswara Hospital. He was advised to come for a review on 19.11.2005. Unfortunately he did not come on the date for review but expired on 23.11.2005 at home. During his hospital stay at the 1st opposite party hospital repeatedly every day around 10.00 am and 4.30 pm counseling 8 sessions were held. Every time the patient while being discharged was advised about the cardiac medications, Anti Tuberculosis Treatment and supportive liver medicines and supportive vitamins inhaler for the lungs, besides diet and respiratory exercise. This has been clearly explained to the patient and his parents and it has been acknowledged and signed by the complainant. Therefore, absolutely there was no negligence and thus sought for dismissal of the complaint.
9. The version filed by the 2nd opposite party as follows:
It is incorrect to state that the opposite parties 2 and 3 have given improper oxygen connection and as a result of which, the complainant's son died. In fact the 2nd opposite party had not received any direction from anybody much less from the 1st opposite party to give oxygen connection. The 2nd opposite party is the distributors for BOC medical oxygen gases and equipments and whoever is in need of the medical gases and equipments, will approach this opposite party and take it for rent and after the use the customers will return the equipment. In such a way the opposite party obliged the complainant and gave him the oxygen cylinder with gas and regulator after payment of Rs.2500/- for regulator set and delivery charge of Rs.150/- totally a sum of Rs.3000/-. The complainant was using the gas cylinder for more than two months but nothing happened. If there was anything wrong with the gas cylinder or equipment the casualty would have happened immediately after the gas cylinder was fitted. Therefore, there are no merits in the allegations, and the same is baseless one. Thus prayed for dismissal of the complaint.
10. The 3rd opposite party has also filed their version raising contentions on the same line as of the 2nd opposite party.
9
11. In order to prove the complaint, on the side of the Respondent/ complainant they filed 18 documents, which were marked as Ex.A1 to A18 and 32 documents filed on the side of the 1st opposite party, which were marked as Ex.B1 to B32. There were no documents filed on the side of the 2nd and 3rd opposite parties.
12. After analysing the evidence and documents, the District Commission had come to the conclusion that there was negligence on the part of the 1st opposite party in giving treatment, and thus awarded a sum of Rs.5,00,000/- towards compensation for medical negligence alongwith cost of Rs.5000/-. Aggrieved over the said order impugned, this appeal is preferred by the 1st opposite party.
13. We have heard the submissions of the learned counsel on bothsides, perused the material records and the order impugned.
14. The patient/ complainant's son who was 26 years old got admitted in the 1st opposite party's hospital on 24.8.2005 for the first time. The medical history of the patient was diagnosed by Dr.Su Thillai Vallal as (i) Congenital Heart Disease with large VSD; (ii) Pulmonary hypertension (severe); (iii) Congestive Cardiac Failure; (iv) Mitral valve prolapsed (anterior); (v) Pulmonary Koch's disease (TB of the lungs); (vi) Patchy consolidation of lingular and right upper lobe; (vii) Emphysema (hyper inflation of portions of the lungs).
The evidence on record would show that the patient was admitted in the hospital on four occasions within a short span of few days.
The patient was admitted for the first time on 24.8.2005 with the complaint of severe breathlessness upon exertion, cough with expectoration and wheezing for the past 10 days. On conducting all routine tests like blood and urine tests, MNRI scan, ultrasound CXR PA view was taken on two different dates and the patient had been 10 administered oxygen and was on ventilator support. He was administered medications to improve his conditions and to stablise him. The patient was attended by number of specialists. On 1.9.2005 the patient had been discharged with advice to take medications and to review with 1st opposite party on 8.9.2005. The condition of the patient had been explained in detail to the patient himself, and his parents at the time of discharge, and the patient had acknowledged the same by affixing his signature and the father's signature.
15. The 2nd admission was on 5.9.2005 at 4.45 pm with a history of sudden onset of breathlessness and syncope. After all investigations the patient was admitted in the ICU and treated with nasal oxygen and had been seen by Dr.Sathyamoorthy, MD.,DM Cardiologist and Dr.A.Srihari AB (Chest), AB (Critical Care). The cardiologists had advised to perform a cardiac catheterization and angiogram after two months of anti TB treatment and to decide about the further treatment. The condition of the patient was explained in detail to the father as well as to the patient.
16. The patient was admitted for the 3rd time on 19.9.2005 with a history of sudden onset of breathlessness since 12.30 pm, orthopnea, history of cough with expectoration, mucoid sputum. On examination the patient was conscious, tachypnoeic, afebrile, dyspnoeic and bilateral pedal edema. The patient was admitted in the ICU and treated with oxygen as he was brought in a serious condition, and was seen by Dr.R.K.Shasankh, DIP, NB, MCH, Cardiovascular and Thoracic Surgeon who had advised to do a open lung biopsy to decide further line of management. The patient's condition was not stable and he was on and off kept in the IC. He was also seen by Dr.Madhushankar, MS, MCH, Cardiothoracic Surgeon, who had opined to continue anti TB treatment to improve his 11 general condition and then perform a cardiac catheterisation and to decide about closing the hole in the heart or to perform a heart lung transplant.
After a detailed discussion with the cardiothoracic surgeons, patient and his family members, it was decided to do cardiac catheterization study after 2 to 4 weeks and to proceed with either closure of hole in the heart or heart lung transplant. He was discharged on 30.9.2005 and advised to take review after one week from Dr.Ganesh M.B.B.S., The condition of the patient was explained in detail.
17. On 28.10.2005, the patient was again admitted with history of breathlessness and with history of swelling in both legs for the past two days, fatigue, increased fluids and salt intake. On getting stabilised the patient was discharged on 5.11.2005, with an instruction to come for review on 19.11.2005. But the patient had died on 23.11.2005.
18. Thus the appellant/ 1st opposite party would submit that the treatment was given meticulously by them with the assistance of number of specialists, which is evident with the documents marked on the side of the opposite party.
19. But it is main contention of the Respondent / complainant that his son was hale and healthy and he did not have any complaint. The 1st opposite party had not explained the serious nature of his son's ailment. Every time of admission they have followed the same line of treatment, and subsequently had discharged. The consent obtained was in a routine manner.
20. The District Commission had concluded that the appellant/ 1st opposite party had given a false hope that the disease was a curable one, and further had not explained about the serious nature of the disease. Had the appellant/ 1st opposite party explained about the serious nature of the disease, the complainant would have consulted with 12 some other doctors for saving the life of his son. Thus concluding, awarded a compensation of Rs.5 lakhs.
21. On considering the detailed arguments, and on perusal of the records, we decide the appeal as follows:
The patient was suffering from congenital disease viz. VSD. The fact that the patient had the congenital disease i.e, VSD (a hole in the heart) with pulmonary hypertension was known to the parents at the time of the birth of their son. It is also admitted by the complainant that his son was advised to undergo surgery with high risk involved during the year 1980 itself. But, the parents have decided not take the risk and decided for medical management. But the patient had developed severe cardiac symptoms in the year 2005 because of VSD with predominantly L to R shunt with severe pulmonary hypertension. It was also seen from the 3rd discharge summary under Ex.B27, that the patient also was diagnosed to have emphysema, left upper lobe collapse and pulmonary koch's infection in August 2005 and ATT was started. Therefore, the team of doctors of the 1st opposite party, in consultation with the parents have decided to do cardiac catheterization study after 2 to 4 weeks with either VSD closure or heart lung transplant.
In view of the above, it is clear that the patient had a congenital problem, which was known to the parents at the time of his birth itself. It is to be pointed out here that the complainant would have been well aware that the disease was not curable one, and the surgery to be performed for closure of the hole is also a very high risk one. Though the complainant would contend that his son was hale and healthy till 2005, the fact cannot be buried that they were very well aware that his son may be exposed to his disease at any point of time. Therefore, it cannot be accepted that only because of the poor treatment of the 1st opposite party, his son had expired.13
As seen from Ex.B4 Outpatient ticket issued by the Institute of Child health and Hospital for children, Egmore, at the birth of the complainant's son and from the Medical Record under Ex.B5, it was clearly mentioned that the child was suffering from VSD. But while preferring the complaint, the complainant had not disclosed the fact that the patient had congenital problem.
As seen from the third discharge summary under Ex.B27, it was clearly explained that the patient had to undergo the surgery for rectifying the hole he had in the heart, or to transplant lungs. Obviously, the appellant/1st opposite party would have explained the complainant about the risk involved in that surgery.
Therefore, on considering the nature of the complaint, we are of the considered opinion that the 1st opposite party had given good care and treatment for the patient on all the occasions whenever he was admitted. The allegations raised by the complainant are all purportedly introduced only to file complaint against the opposite parties because of his anguish.
22. Yet another contention of the complainant is that his son was treated wrongly in other words not given proper treatment. But the complainant had not come forward with valid expert evidence to prove that the line of treatment adopted by the appellant/ 1st opposite party was wrong. Therefore it is only a bald allegation, which cannot have much force.
23. In support of the contentions of the appellant, the learned counsel for the appellant had drawn our attention to the judgement of the Hon'ble Supreme Court reported in (2009) 3 SCC in Martin F.D'Souza Vs. Md. Ishfaq in which it was held that "It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of surgeon the patient dies. That 14 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."
24. The learned counsel for the Respondent/ complainant in support of their contentions had also drawn our attention to the judgement of the Hon'ble Supreme Court reported in (2010) 5 Supreme Court Cases 513 in V.Krishnarao Vs. Nikhil Super Speciality Hospital and another, where it was held that "Consumer Forum can also in its discretion permit expert evidence but it is not bound by views expressed by expert because medical negligence is a mixed question of law and fact, to be resolved finally by Forum"
25. In view of the above, it is pertinent to note here that all evidences available on record, would prove that the line of treatment given by the appellant/ 1st opposite party is convincing. Therefore, we feel it is necessary for the complainant to produce expert evidence to prove contra. Accordingly, in our considered opinion the complainant had miserably failed to establish his case by leading expert evidence. Mere averments in the complaint cannot be a gospel truth to fix the negligence on the part of the doctor.
26. It is yet another submission of the Respondent/ complainant that the serious nature of the patient's disease was not explained to the complainant by the 1st opposite party. But on a perusal of Ex.B17, B22, B27 and B29 i.e., Discharge summaries issued by the 1st opposite party hospital on each occasion of discharge from hospital would clearly show that duration of stay, the crucial nature of the illness and the treatments given to him. Therefore the submission made by the complainant that he was not explained with regard to the patient's disease cannot be accepted.
15
27. Therefore looking at any angle we find that the treatment given by the 1st opposite party was a quality one, but unfortunately, the complainant's son, who was suffering from congenital disease, lost his life, for which the 1st opposite party cannot be blamed. Without considering all these facts, on evasive reasoning the District Commission had fixed negligence on the part of the 1st opposite party, which has to be set aside, accordingly set aside.
28. In the result, the appeal is allowed by setting aside the order of the District Commission, Chennai (South) in CC.No.481/2007 dt.11.2.2013 and the complaint is dismissed. There is no order as to cost in the appeal.
Registry is directed to discharge the mandatory deposit, alongwith accrued interest in favour of the appellant/ 1st opposite party.
S.M.LATHAMAHESWARI R. SUBBIAH
MEMBER PRESIDENT
INDEX : YES / NO
Rsh/dRSJ/ ORDERS
16