State Consumer Disputes Redressal Commission
Gopal Krishna Bhagirath Purohit vs Dr. Mukesh Chaudhary on 7 September, 2022
1
Details DD MM YY
Date of Judgment 07 09 2022
Date of filling 24 02 2016
Duration 14 06 6
BEFORE THE C ONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AT AHMEDABAD
COMPLAINT NO.35 OF 2016
COURT NO.2
Gopal Krishsna Bhagbirath Purohit
1/102, Yogeshwar Residency
Sardar Chawk
Krishnanagar
Ahmedabad. ...... Complainant
Versus
1. Dr.Mukesh Chaudhary
2. Dr.Ketan Nayak
3. Dr.Narendra Modi
All having address as-
Prathana Surgical Hospital
Duplex Arcade
Nr. Jain Derasar
Nayannagar, Krishnanagar
Ahmedabad ..... Respondents
Appearance:
Ms.Hetvi Sancheti, learned Advocate for the Complainant
Mr.Anand Parikh, learned Advocate for the Respondents
KMGThilaka CC-16-35
2
Coram:
Shri M.J.Mehta, Judicial Member
Ms. P.R.Shah, Member Order by Shri M.J.Mehta, Judicial Member
1. Brief facts of the complaint are as thus: The wife of the present Complainant was suffering from Tuberculosis and Thyroid and accordingly medications were administered on her at Kakadia Hospital during the period from 04.02.2014 to 10.02.2014. It is further submitted that further treatment was taken from the Respondent hospital from 22.2.2014 till 02.03.2014 for fever, abdominal pain and bloating of abdomen. During the course of treatment, a test called WIDAL Test was also administered on the patient which was positive for "Typhoid" on 22.2.2014. However, due to deteriorating condition of the patient, she was admitted as indoor patient on 3.3.2014 in the Respondent hospital and several tests were carried out, out of which one was of Typhoid which came positive. On 04.3.2014, without obtaining consent of the patient or her relatives, ASCITIC FLUID taping was administered on her. Ascitic Tap is a medical procedure where a needle is used to drain fluid that is trapped in the internal body cavity, most commonly the abdomen (belly). The fluid was examined wherein it was specifically stated that report was negative for malignant cells, i.e. no cancerous cells were found. That report has been placed on record. Further, on 07.3.2014, the patient was referred to Dr.Chirag Desai for ruling out cancer. On 10.3.2014, by administering general anesthesia omental biopsy was carried out via laparoscopy by Respondent No.2 Doctor for determining cancerous cells or not. The operation notes are on record. It is further KMGThilaka CC-16-35 3 stated that, though there was no requirement of biopsy, it was done. Further another option of CT Biopsy was available, which was less invasive and no general anesthesia was required to be given, hence the risks associated with general anesthesia could be greatly minimized. However, that option was not offered to the patient.
2. Further, it is also submitted that, after the biopsy operation, the patient became critical and therefore she was moved to Shrey Hospital for treatment where she passed away on 12.3.2014. Thereupon, negligence on the part of the treating Doctors and the Hospital has been alleged by the Complainant and compensation has been claimed viz. Rs.53,000/- for medical expenses at Prathana Hospital, Rs.74,500/- for expenses at Shrey Hospital, Rs.30,000/- at Vedanta Hospital, Rs.25,025/- for expenses of reports, medicines, Rs.10,00,000/- towards loss of life and Rs.10,00,000/- towards pain, shock and suffering.
3. After registration of the Complaint, notices were issued to the other side, who have submitted their reply at page 66 by Respondent No.1 Dr.Mukesh Chaudhary. He replied mainly on the point that there is no negligence on the part of the Respondents. There is no history of any kind of negligence having been found on the part of the Respondents due to which the wife of the Complainant died. It is submitted that the deceased was treated for Typhoid for which she was given oral medicines and antibiotics. Her pathology report dated 03.3.2014 was negative for Typhoid because Typhoid 'O' Fitre was absent. The treatment papers suggest that diagnosis was done by rising of 'O' KMGThilaka CC-16-35 4 antibodies. None of the sonography reports nor the C.T.Abdomen report was favouring Typhoid. Still, giving benefit of suspicion of Typhoid, oral standard drugs of Typhoid were given from 03.3.2014 to 13.3.2014.
4. It is further submitted that several tests were carried out including aseptic fluid, cytology report was also done, liver function was carried out besides carrying out histopathology test to diagnose and prescribe treatment. On 04.3.2014, after obtaining consent of the patient and her relatives, ascitic fluid testing was carried out. This was done after explaining the same and obtaining oral consent of her husband. Negative report of cytology and ascitic fluid test for malignant cells (cancer cells) did not 100% rule out cancer. If cancer is suspected, then biopsy is the only standard test. The patient had requirement of Biopsy because CA 125 report of Bajaj Pathology dated 03.3.2014 was 418.78 u/ml which was high and raised suspicion of cancer. It was again checked on 07.3.2014 and found to be 429.34 u/ml which was reconfirmed. The patient was, therefore, referred to Dr.Chirag Desai, D.M., Hematologist, who advised laparoscopic examination and biopsy to rule out malignant possibilities, i.e. cancer of ovary. It is further submitted that, since the Respondents have discharged their duties faithfully, honestly and as per the standard and medical protocol, there is no question of any deficiency or negligence in service and, therefore, the Complainant is not entitled to any compensation whatsoever.
5. It is submitted by Respondent No.2 Dr.Ketan Naik that, NHL (Non Had Lymphemia) and Megothelionis, the another blood test called C.E.A. KMGThilaka CC-16-35 5 dated 3.3.2014 was also high 6.48. Therefore, laparoscopic examination biopsy was absolutely necessary. Secondly, the patient was not responding to anti-tuberculosis treatment which she was receiving since one month. The standard books of medicine Harrison's principles of medicine (Page No.1348) refers that poerihmeal biopsy is often needed to establish the diagnosis of tuberculosis in such case. The C.T.guidance biopsy has disadvantage that it may not be able to remove enough tissue for analysis. Hence this option was not preferable. The patient passed away at Shrey Hospital on 12.3.2014. Further it is submitted that Dr.Sheetal Mistry has reported deficiency on the part of Dr.Ketan Naik. Dr.Sheetal Mistry is a practicing Consultant Surgeon and, therefore, a Doctor who has not performed such surgery, cannot opine about the surgery performed by Respondent No.2 Doctor. Such opinion cannot be relied upon. Respondent No.2 Dr.Ketan Naik has performed several successful surgeries and, therefore, there cannot be a question of gross negligence on his part. Negligence or deficiency in service is denied on the part of Respondents No.1 and 2.
6. Further, Respondent No.3 Dr.Narendra Modi, is an Anesthetist who administered anesthesia on the patient at the time of performing laparoscopic procedure. He has given his reply stating that he has complied with the guidelines and norms and the standard and medical protocol. He has further endorsed the views contained in the reply of Respondent No.2 Dr.Ketan Naik.
KMGThilaka CC-16-35 6
7. Heard the learned Advocates appearing on both sides and perused the documents placed on the record today. The main point is that the patient was suffering from Typhoid and treatment was given for Typhoid for which she was given oral medicines and antibiotics. Several tests, including aseptic fluid, cytology and liver function test, were carried out. Biopsy procedure was carried out. Thereafter, Histopathology test was also carried out in order to diagnose and prescribe proper treatment. As per the submissions, complications occurred due to laparoscopic procedure adopted to collect sample for cancer. Dr.Sheetal Mistry has examined the medical papers etc. in question, the procedure adopted by Dr.Mukesh Chaudhary and Dr.Ketan Naik and other medical officers. The facts were also submitted by Dr.Sheetal Mistry that the patient was diagnosed to have spontaneous bacterial peritonitis. She was put on anti Koch's treatment and had taken OPD treatment from Prarthana Hospital on 02.3.2014. She was advised laboratory tests and antibiotics but did not show much improvement in symptoms of fever and abdominal pain. She was, therefore, admitted in Prarthana Surgical Hospital on 02.3.2014 with Doctor's advice. During admission, doctor performed ascites tapping and fluid analysis, certain blood investigation and CT scan of abdomen. She was operated on 10.3.2014 at around 5.30 a.m. for laparoscopic omental biopsy under general anesthesia. The patient became serious after operation, so she was referred to Shrey Hospital on 10.3.2014 at 10.00 p.m. where the patient passed away on 12.3.2014 at 2.30 p.m. Pathological postmortem was not done by treating doctors at Shrey Hospital. There is no statement of the relatives of the patient with their signature that they did not want pathological postmortem of the KMGThilaka CC-16-35 7 deceased. The finding of Dr.Sheetal Mistry states that, in Kakadiya Hospital, the patient was investigated and treated by Dr.Hiten Barot (MD). The patient was having normal Xray Chest. Sonography of abdomen dt. 4.2.2014 shows coarse echotexture of liver suggesting liver parenchymal disease, mild to moderate ascites. Haemogram shows 9.6 gm/dl haemoglobin which is hyupochromic, microcytic anaemia. Pathological report was positive for Typhoid. Patient was admitted in Prarthana Hospital as an indoor patient on 02.3.2014. She was investigated and treated by Dr.Mukesh Chaudhary. Reports dated 03.3.2014 suggest that the patient was having hypochromic, microcytic anemia (10.5 gm% Hb), rise in "H" titre in Widal test, CA-125 was high 418.78 u/ml, CEA was also high 6.48 lng/ml. Reports of 04.3.2014 were showing high ADA level of 114.80 IU/l in ascetic fluid. Ascitic fluid was exudative and negative for malignant cells. Report dt.07.3.2014 was showing high ESR 72 mm/1st hr, high alkaline phosphatase 183.0, low albumin 3.0 gm/dl, s.LDH was marginally high 491.0 IU/L Alpha feto protein was normal 1.8 ng/ml and prothrombin time INR was 1.23 and anti HCV negative. Further, it is submitted that MDCT Abdomen dt. 4.3.2014 shows findings favouring moderate ascites and smooth peritoneal thickening, fat stranding, fascial thickening, smooth mild mural prominence of pelvic small bowel loops, hepatomegaly with diffuse fatty changes. These findings are favouring inflammatory etiology. Radiologist cannot say with surety about pathological diagnosis whether it is because of tuberculosis or enteric fever. Further it is also noted that all the reports were done but there was no clinical findings of abdominal examination in the case paper. CRP and Procalcitonin levels were not done which are the markers of infection.
KMGThilaka CC-16-35 8 Xray chest with both domes of diaphragm in sitting position was not done. Further it is noted that, on 04.3.2014, ascites tapping done under local anesthesia was without written and informed consent of the patient or her relatives. Patient was taken for surgery for laparoscopic omental biopsy on 10.3.2014 at 5.30 p.m. as advised by Oncophysician Dr.Chirag Desai on 07.3.2014 by Dr.Ketan Naik, Dr.K.K.Shah and Dr.Narendra Modi. The consent taken was not proper. It was not mentioning the specific complication which can occur because of surgery and the Doctors have not given other options of treatment like CT guided biopsy.
8. According to our view, during any kind of surgery, if anesthesia is required to be administered on the patient, then application and consequence are to be clearly explained to the patient and relatives. Only thereafter, consent of the patient as well as her relatives has to be obtained. Here in the case, according to the replies filed by Respondents Dr.Mukesh Chaudhary, Dr.Ketan Naik and Dr.Narendra Modi, they have taken oral consent of the relatives of the patient. According to the legal norms, guidelines and medical protocol, adverse possible complications had to be explained and thereafter written consent is to be obtained. Thereby, in the present case, the Respondent Doctors have played their role negligently and no care to follow the guidelines and protocol was taken by them.
9. Further it is on record by way of findings by Respondent No.2 Dr.Ketan Naik to the effect that there was haemorrhagic fluid in the peritoneal KMGThilaka CC-16-35 9 cavity, adhesion of small bowls in pelvic cavity and plenty of slough in peritoneal cavity. According to the opinion given by Dr.Sheetal Mistry, in plain tuberculosis, they did not find slough in peritoneal cavity without bowel perforation. So intra-operative finding suggests possibility of sealed old perforation of small intestine due to enteric fever (typhoid) as patient's widal test was positive and there was serial rise in widal tiitre since 22.2.2014. Typhoid perforations are more common in 3rd week, same is the case here. In brevity, the patient was suffering from Koch's abdomen which was a chronic condition and above that she suffered from acute typhoid fever which caused small bowel perforation which was sealed in 3rd week of illness. That is why there was plenty of slough and small bowel adhesions which was requiring urgent exploratory laparotomy for peritoneal lavage searching perforation and adhesionolysis which was omitted by the operating Surgeon which was a negligence on his part. Considering this opinion, it is abundantly clear that the Respondent Doctors were found to be negligent during the operating procedure. Further it is noted that the operative Surgeon took biopsy from thickened omentum which was favouring the diagnosis of tuberculosis. According to Respondent No.3 Dr.Narendra Modi, he had used 100 mg of fentanyl and 2 mg of midazolam in the patient for diffusing fatty liver for such a short procedure. This was high dose for the patient which caused apnea, hypoxemia, aspiration pneumonitis and pulmonary oedema. Negative pulmonary pressure because of laryngospasm during extubation had caused pulmonary oedema. These anesthesia related complication escalated the situation and patient became serious and she was transferred to Shrey Hospital in ICU. Post-operative investigation KMGThilaka CC-16-35 10 showed positive CRP, positive procalcitonin which were not done preoperatively. Case papers of Shrey shows that there was intra peritoneal haematoma and typed report says there was no peritoneal hematoma. It arouses doubt about the authenticity of report. That may be the attempt to save the accused opponent doctors. It shows that the whole case papers are fabricated following the complication of surgery.
10.Learned Advocate Ms.Sancheti, appearing for the Complainant, has submitted before us the whole procedure to be followed in the present case and submitted that there was absolute negligence on the part of the Respondent Doctors in performing their duties which ultimately resulted into death of the patient. Learned Advocate Mr.Anand Parikh, appearing for the Respondent Doctors, has submitted before us that the treatment given to the patient was very much proper and standard procedure was followed by the Doctor concerned. He has drawn our attention to the submissions at page 83 in this regard. NHL and megothelionics and another blood test called C.E.A. dated 3.3.2014 was high 6.48 showing suspicion of malignancy. So the laparoscopic examination biopsy was absolutely necessary. The patient was not responding to anti tuberculosis treatment which she was receiving since one month. The standard book of medicine Harisson's principles of medicine (page No.1348) also prescribes that perihmean biopsy is often needed to establish the diagnosis of tuberculosis in such case. The C.T.guidance biopsy has disadvantage that it may not be able to remove enough tissue for analysis (as per page 41) enclosed in the complaint. Hence this option was not preferable. The patient passed away at Shrey Hospital on 12.3.2014 but why postmortem was not done is not coming KMGThilaka CC-16-35 11 forth. The stand taken by the Respondent Doctor in his reply is not supported by any authenticated literature. Therefore, this cannot be taken as conclusive proof and will not be helpful to the Respondent Doctor. Against this, learned Advocate for the Complainant has taken support of the opinion given by expert Dr.Sheetal Mistry, which suggested that anesthesia related complication escalated the situation and the patient became serious whereupon she had to be transferred to Shrey Hospital in ICU. Moreover, as discussed earlier, the Respondent Doctors have not obtained any consent from the relatives of the patient. This also is an act of negligence on their part. Ultimately, the patient passed away.
11.Learned Advocate Mr.Anand Parikh for Respondents No.1, 2 & 3, has submitted before us the report of the Medical Board by the Postgraduate Department of Medicine, B.J.Medical College & Civill Hospital, Ahmedabad (at page 50) which suggests that when the report of Typhoid was positive, therefore, laparoscopy operation was duly performed. During this operation, the patient suffered ARDS , therefore she was given treatment. The Civil Surgeon has come to the conclusion that intensive treatment was given and operation was performed. Why surgery was done on the patient for investigation of cancerous sample is nowhere explained. Therefore, report of the Medical Board at page 50 is not helpful to Respondents No.1, 2 & 3. So we come to the conclusion that there is negligence on the part of the Doctor who administered anesthesia which was high. Therefore, according to our view, basic requirement as reflected in the medial guidelines are not clearly followed. As such, report of Dr.Sheetal Mistry cannot be KMGThilaka CC-16-35 12 discarded straightway. When expert opinion does not give any doubt in the report, that report has to be accepted.
12.Learned Advocate Ms.Sancheti for the Complainant submitted before us a judgment of the Hon'ble Supreme Court in the case of V.Kishan Rao v. Nikhil Super Specialty Hospital reported in (2010) 8 Supreme Court Cases 513 wherein it is held that, when prima facie there is expert opinion of negligence, no rule of general application can be laid down in this regard. Expert opinion is required only when a case is complicated enough warranting expert opinion, or facts of a case are such that Forum cannot resolve an issue without expert's assistance. In the facts of that case, it is held that where a patient who was suffering from intermittent fever and chills, was wrongly treated for typhoid instead of malaria for four days, which resulted in her death, was an apparent case of medical negligence.
13.We have considered the defence pleaded on behalf of respondents No.1 & 2 and we have gone through the contentions raised, as discussed hereinabove. Under the circumstances, we are of the opinion that the amount of Rs.1,83,585/- incurred by the Complainant towards medical expenses are required to be compensated to the Complainant. Further, learned Advocate Ms.Sancheti for the Complainant has submitted before us that an amount of Rs.10,000/- towards mental agony is also to be awarded to the Complainant. Learned Advocate Mr.Anand Parikh for the Respondents submitted that no such amount is to be awarded to the Complainant. Learned Advocate Ms.Sancheti for the Complainant submitted before us that the claim of the Complainant is a genuine claim KMGThilaka CC-16-35 13 because, housewife at the age of 48 years passed away leaving everyone at home in a grievous state because of the negligence in surgery on the part of Respondents No.1 & 2. Therefore, quantum of compensation must be awarded reasonably. We are, therefore, of the opinion that, considering the role of a wife in the family, suitable amount of compensation deserves to be awarded to the Complainant, otherwise the very purpose of awarding compensation in case of death would be defeated. Therefore, we are of the opinion that an amount of Rs.5,00,000/- is to be awarded in lump sum to the Complainant. Accordingly, we pass the following final order:
ORDER i. The Complaint is partly allowed against Opponents no.1, 2 and 3 and they are ordered to pay Rs.5,00,000/- (rupees five lakhs) in lump sum to the Complainants within 60 days from the date of the Complaint.
ii. Opponents No.1, 2 and 3 are further directed to pay Rs.2,50,000/- (rupees two lakh fifty thousand) jointly and severally with 7% interest p.a. from the date of filing the Complaint;
iii. The Respondents No.1, 2 & 3 shall also pay Rs.50,000/- towards mental shock, pain and suffering; and Rs.5,000/- towards expenses, to the Complainant.
KMGThilaka CC-16-35
14
iv. There shall be no order as to costs;
v. Copy of the judgment be provided to the parties free of charge.
Pronounced in the open Court today on the 07th day of September, 2022.
Sd/- Sd/-
( P.R.Shah ) ( M.J.Mehta )
Member Judicial Member
KMGThilaka CC-16-35