State Consumer Disputes Redressal Commission
Mr. Micheal Rodrigues, vs Dr. Shantaram N. Surme, on 27 February, 2014
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI -GOA C.C. No. 09/2012 1. Mr. Micheal Rodrigues, son of Carlos Rodrigues, major of age, Service, and his wife, 2. Mrs. Gloria Rodrigues, Wife of Mr. Micheal Rodrigues, Major of age, Housewife, Both residents of H. No. 143/2, Poriebhatt, Verna, Salcete, Goa ... Complainants v/s 1. Dr. Shantaram N. Surme, Son of Mr. Navlo Surme, Major of Age, Medical Practitioner, Resident of Devkrupa , House No. 21/8, Lane No. 9, Alto Chicalim, Behind Chicalim 409. 2. Dr. Shridhar Raghuvir Pai, Son of late Raghuvir Pai, Major of Age, Medical Practitioner, Resident of Pai Hospital, Vaddem, Vasco-Da-Gama, Goa. 3. Dr. Dilip Amonkar, Son of Pandurang Amonkar, Major of Age, Medical Practitioner, Resident of 41, Lake View, Denis Building, Miramar, Panaji, Goa. 4. Pai Hospital, Through Dr. Shridhar Raghuvir Pai, Resident of Pai Hospital, Vaddem, Vasco-Da-Gama, Goa. ... Opposite Parties Complainants are represented by Adv. Shri. N. DCosta Frias. O.P. No. 1 is represented by Adv. Shri. R. Naik. O.P. No. 2 & 4 are represented by Adv. Shri. V. Parsekar. O.P. No. 3 is represented by Adv. Shri. N.G. Kamat. Coram: Shri. Justice N. A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 27/02/2014 ORDER
[Per Justice Shri. N. A. Britto, President] The complainants daughter, Ravina Rodrigues, aged 17 years, studying in IXth Standard died in the Goa Medical College on 29/07/10, and, the complainants by this consumer complaint filed on 30/07/12 (previous two days being Saturday and Sunday, respectively, and as such public holidays) seek to recover from the Opposite Parties compensation of Rs. 62 lacs, on account of the said death.
2. The undisputed sequence of events leading to the death of Ravina Rodrigues would show that:
20/06/10 Ravina complains of abdominal pain and she is taken to Dr. Surmes Clinic at Vasco-da-Gama who suspects that the abdominal pain is due to appendicitis. He gives her medicines for 5 days; to control infection, inflammation, and pain (page 1024) Dr. Surme, OP No. 1, is the family physician of the complainants family of 15 years. He passed MBBS and is a postgraduate in Obstetrics and Gynaecology (DGO) and works as Research Medical Scientist for Human Reproduction Research Centre attached to the Department of Obstetrics & Gyanecology of Goa Medical College and does private practice after office hours at Vasco-da-Gama.
26/06/10 Ravina goes back to Dr. Surme with the same complain and is advised to continue with the medicines.
2/7/10 Ravina is admitted in care of Dr. Surme in Pai Hospital, OP No. 4, at about 9.30 p.m. Dr. Pai, OP No. 2, is an M.S. from Bombay University and FRCS from London University and established Pai Hospital, OP No. 4, in the year 1985 and is its Director, Owner and Surgeon. According to him, he has stopped operating for the last about three years because he suffers from diabetic neuritis and his hands go numb at times and does only small procedures.
3/7/10 Dr. Amonkar, OP No. 3, performs appendicectomy and the appendix is removed and put in formalin and given by the attending nurse to Ravinas mother, complainant No. 2, who leaves it behind at the time of discharge on 5/7/10.
Dr. Amonkar is an M.S. and is working in G.M.C. and is presently the Head of the Department of Surgery, G.M.C. and Hospital and as such is also a Professor teaching under-graduate and Postgraduate students and is also called as faculty to different medical colleges and is a medical inspector of Medical Council of India.
5/7/10 Ravina is discharged from Pai Hospital at about 9.00 p.m. 9/7/10 Ravina is re-admitted at 8.00 a.m. with abdominal discomfort and distention with history of vomiting, in Pai Hospital, and is put on drips: under observation.
10/7/10 At about 6.00 p.m. Dr. Pai gets abdominal USG done and the sonography report shows gross free fluid in the abdomen and pelvis with internal echoes, suspected due to haemorrogic left ovarian cyst (copy at pg. 118) Dr. Pai also taps the abdomen/ does needle aspiration and obtains a report from Central Clinical Laboratory, which shows that Ravinas hemoglobin count has gone down to 7.0gms % (aneamia) as against the normal range of 12-15 gms%. Her W.B.C count has gone up to 16800 cells/cmm against the normal range of 4000-10,000 cells/cmm with neutrophils at 73%. Her bilirubin count has also gone up to 8.0mg-dl as against the normal range of 0.1-10 mg/dl (jaundice) and has mild swelling of liver, and, urine analysis also shows the presence of pus cells, bile salts and bile pigments.
10/07/10 Ravina is shifted to Goa Medical College at about 20.11 hrs. where as per duty roster of the Department of Surgery, Unit No. IV is in incharge consisting of Dr. Amir Ali as Sr. Resident, Dr. Reshma Salelkar as Jr. Consultant and Dr. Rajesh Patil as Sr. Consultant. Nevertheless, it is Dr. Amir Ali who takes charge of Ravina under the guidance/ instructions of Dr. Amonkar/ OP No. 3, and gets another sonography done at about 8.45 p.m. and the findings of which are in tune with the sonography report obtained by Dr. Pai at his Hospital. The Anaesthetist,Dr. Ruchita opines that the pulse, B.P., the heart and respiratory system are normal. At about 9.30 p.m. Dr. Amir Ali, Sr. Resident, being assisted by Jr. Residents Dr. Sharmad Kudchadkar and Dr. Sanjeev Kulkarni, does midline exploratory laparotomy and then calls Dr. Sweta Mathe, Gynaecologist from O.T. who comes and finds that the patient has a history of left ruptured ovarian cyst, suspected to be corpus luteal cyst and partly excises the same and achieves haemostasis and reconstructs the ovarian wall. Dr. Amir Ali finds 2.5 liters of blood inside the abdomen, clot in right iliac fossa, etc. Blood is removed (hemoperitonium aspirated) and closes the abdomen. Informs Dr. Reshma. Dr. Amir Ali sees vicryl ligature on mesoappendix.
11/07/10 Ravina is shifted to female surgery ward No. 106. She has fever of 101C. She has Jaundice and facial puffiness. [At this stage we may note that the parties have been very uncooperative in not providing to the Commission legible medical case papers except a few, from GMC, inspite of the facts that they were reminded time and again to do so]. The fact that Ravina had fever on 11/07/10 is otherwise confirmed by Dr. Kakodkar.
12/07/10 Ravina has fever.
Ravina has sepsis (blood borne infection with acute renal failure, acute kidney injury, as per Dr. Kakodkar) 13/07/10 Ravina has difficulty in breathing at about 1.45 a.m. and is referred for ventilator support twice on 13/7/10. GMC has 8 beds in I.C.U. with ventilator support. None is available till 15/7/10.
15/07/10 Ravina is shifted to ICU in the evening to be put on ventilator where invasive ventilator is used and where she continues.
20/07/10 Dr. Uday C. Kakodkar called to examine Ravina as regards the use of antibiotics and Dr. Kakodkar finds her critical but stable with slight improvement as compared to 15/07/10 and advice given by him is followed. Ravina develops ventilator associated pneumonia but does not respond to treatment. She continues to be on the ventilator from 15/7/10 to 29/07/10.
29/07/10 Ravina expires at about 10.05 a.m. Her stay in I.C.U. remained critical with waxing and waning inspite of she being intensively monitored round the clock, as per Dr. Kakodkar.
3. The postmortem of Ravina is conducted by team of doctors led by Dr. Silvano Dias Sapeco, Professor and Head of Department of Forensic Medicine and Toxicology, GMC, and, he opines that there is evidence of Septicaemia but reserves the opinion pending histopathology report. The histopathology report, concludes, as stated by the complainants, that the cause of death of Ravina was due to Septicemic shock in a person having evidence of peritonitis, hepatitis, pancreatitis, consolidation of lungs following two abdominal surgeries.
4. The complainants elder daughter Mrs. Ravika Rodrigues files a complaint on 2/08/10 to the Chief Minister of Goa and the Minister of Health. We assume, that there must have been media coverage given both in electronic media as well as in print media and we also assume that the death of Ravina must have also been a subject of discussion in Goas Legislative Assembly, as a result of which Minister of Health, Government of Goa on 4/8/10 constitutes a Committee, as per the assurance given by the Government to the Legislative Assembly on 2/8/10, to inquire into the death of Ravina Rodrigues. The Committee consists of the following:
1.
Shri. Rajeev Verma, M. Tech (Computer Science) IAS, Secretary (Health) Chairman
2. Dr. V.N. Jindal, M.S (Surgery), M. Ch (Neurosurgery), Dean, GMC Member
3. Dr. Emidio Gomes, M.S., F.I.C.S Member
4. Dr. Rajnanda Dessai, MBBS, DGO, Director of Health Services Member
5. Dr. Pramod Salgaonkar, MBBS Member
6. Dattaram Dessai, Joint Secretary Health Member Secretary (Note:
the serial order of names is ours, the degrees are those given by Dr. Surme, OP No. 1)
5.
The Committee was required to prepare an immediate report relating to the death, to be placed before the House on 5/8/10. The Committee was also required to give a detailed report to be placed before the house during the next session. Parties have not informed this Commission whether the report of the Committee was placed before the House or whether it was approved by the House or not. We are inclined to believe that the said report of the Committee still holds the field.
6. The Committee headed by the Secretary, Health, recommended initiation of criminal investigations against Dr. Surme, OP No. 1, and Dr. Pai, OP No. 3, for gross negligence leading to the death of Ravina.
The Committee also directed disciplinary proceedings to be initiated against Dr. Surme, OP No. 1, and Dr. Amonkar, OP No. 2. The Committee also directed administrative instructions to be issued to GMC to bind the consultants on duty and Resident Doctors that emergency cases should be taken up for surgery only after consultant on duty is informed and only after his or her approval is taken in complicated cases. (We wonder for a while as to what Dr. Amir Ali could have done when his own professor and head of Department on whom he must have been dependent to get his M.S., was guiding him to conduct the exploratory laporatamy, which he did. We also wonder whether Dr. Amir Ali recorded that the left ovary cyst was intact and not bleeding out of ignorance or on dictation of Dr. Amonkar).
7. The Committee, after inquiry with all concerned, came to the conclusion that:
21. Dr. Amonkar in his written comments to Dean GMC and in his statement had said that Dr. Pai phoned him nearing midnight between 11 to 11.30 p.m. on 2nd July. The call records do show that there is a call from Pai Nursing Home to Dr. Amonkars mobile on 2nd July at 10.44 p.m. for 61 seconds, however, in the morning of 3rd July, there is only a brief call to Dr. Amonkar from Pai Nursing Home at 7:11 a.m. for 13 sec. only, when his location was near Vasco. The statements of Dr. Amonkar and Dr. Surme that frantic calls were made in the morning of 3rd July by Dr. Surme to Dr. Amonkar are not corroborated with the call records. There is no incoming call on 3rd July on Dr. Amonkars landline till 4:10 p.m., and no phone call from Dr. Surmes mobile or from Pai Nursing Home to Dr. Amonkars mobile. Dr. Pai has stated that he was aware on the night of 2nd July, itself that Dr. Amonkar is going to perform the surgery.
Mrs. Ravika Rodrigues as well as Sister Angela in their statements had said that Ms. Ravina was not having any complications or pain on the night of 2nd July and on the early morning of 3rd July. It is, therefore, clear that his story of deterioration of the condition of Ms. Ravina is an after thought to justify the operation performed by Dr. Amonkar at Pai Nursing Home. It was fixed to be done by Dr. Amonkar in advance. There is no call from Dr. Amonkars mobile or landline to Dean GMC in morning of 3.7.2010 as stated by him.
22. Dr. Amonkar on a query said that at the time of phone calls of Dr. Surme he did not ask about blood test, other investigations and their outcome. While there were no such phone calls as above, even if it were true that Dr. Amonkar received calls from Dr. Surme, Dr. Amonkar instead of going to Pai Nursing Home at Vasco could have asked about the investigations as a professional with ordinary skill may have asked and unless he was satisfied with gravity of situation after due diligence, he could have asked for the patient to be shifted at GMC as the time taken by Dr. Amonkar to go to Pai Nursing Home would have been the same as what might have been taken to shift Ms. Ravina from Vasco to GMC. Dr. Surme also stated that Dr. Amonkar did not see any papers of patient. This reflects on Dr. Amonkars conduct as unbecoming of a Senior Government Doctor. Dr. Amonkar also admitted that he had not seen the consent papers. No diligence has been shown by Dr. Amonkar before taking decision to operate at Pai Nursing Home and these facts indicate serious lapses on his part and conduct unbecoming of a Senior Government Doctor.
23. Dr. Amonkar himself has admitted that the operation theater at Pai Nursing Home was not upto the mark and was in unhygienic condition. Again it is clear that Dr. Amonkar could have after reaching there and on seeing the condition of patient as well as the condition of operation theater, asked for shifting the patient to GMC and could have operated her at GMC as it has come on record from the statements of Nurse (Sister Angela) as well as Mrs. Ravikas statement that Ms. Ravina was not having such pains or was not in such a deteriorating condition that appendix was going to burst. Dr. Amonkar has admitted that he knew very well and the fact that Dr. Surme is doing private practice. In the light of all the foregoing analysis, it is clear that the operation by Dr. Amonkar at Pai Nursing Home was not on humanitarian grounds but on other considerations.
24. It is on record that the consent form at Pai Nursing Home was not filled properly and that Dr. Amonkar has not seen the consent form himself which he should have seen before conducting the operation.
Dr. Amonkar has not seen any investigation report. The claim of Dr. Surme that he had taken blood sample himself and given to laboratory, Vasco early morning is not substantiated. There is no mention of the same on the medical papers neither any such formal test report has been produced by him. Sister Angela has stated that she was with the patient from 6.00 a.m. till operation was over and if any blood sample was taken, she would have come to know.
Mrs. Ravika Rodrigues has also confirmed that Dr. Surme did not leave the Hospital. Dr. Surme, Dr. Pai and Dr. Amonkar all are jointly responsible for conducting the operation without proper investigations.
25. Sister Angela has said that the appendix was quite small and only acute appendix they send for Histopathology and she had given the specimen to the mother of the patient. While Mrs. Ravika has said that no appendix was shown to them, it appears that she was not aware of the appendix shown by Sister Angela who herself is a relative of them. In the postmortem report also the appendix has been shown to be removed. Thus though it is established that the appendix of Ms. Ravina was removed, the fact that it was not sent for any further examination and testimony of Sister Angela does not support that it was a case of acute appendix.
26. Ms. Ravika Rodrigues has stated that her sister was discharged on the 5th July while she was not in good condition. It has been admitted and also seen from the statement of Dr. Pai that daily notes on page 4 & 5 of medical record papers of Pai Hospital were written by Dr. Surme after the death of Ms. Ravina Rodrigues and by this act Dr. Surme had committed forgery. This act of Dr. Surme is sufficient to show that he had gone to the extent of committing criminal act to suppress the defaults. Dr. Pai who had knowledge of this act but disclosed it only during inquiry on asking also may become party by suppression.
27. Since a part of the Medical Record papers of Pai Hospital including daily report are established as fabricated, this fact also raises doubt on veracity of other parts. Thus the record of condition at the time of discharge of Ms. Ravina is not reliable and given the conduct of Dr. Surme, it could not be established that Ms. Ravina was in a condition fit for discharge on 5th July.
Dr. Pai cannot escape the responsibility by stating that Ms. Ravina was under care of Dr. Surme.
28. Dr. Amonkar had tried to project his concern stating that he used to phone Dr. Pai everyday about the case and its progress till discharge. The call records however, do not corroborate this statement. The records do show a number of calls between Dr. Amonkar and Pai Nursing Home on 10th July and only one call from Pai Nursing Home to Dr. Amonkar on 9th July at 9:44 a.m.
29. On re-admission of Ms. Ravina on 9th July, the statements on record clearly show that there were significant complications and distension was observable on that day. In spite of same and request of relatives, the ultrasound was not done till 10th evening. An act of gross negligence is established on the part of both Dr. Surme and Dr. Pai in delaying the ultrasound and delaying shifting of Ms. Ravina to GMC for the 2nd operation. Dr. Pai says that Dr. Surme did not shift her to GMC, but it is also observed that he, later shifted her when according to him Dr. Surme was not present. Being a Surgeon he could have acted as per the gravity of the situation especially when he said that Dr. Amonkar also advised him to shift and when Dr. Pai said that he himself tapped the abdomen of Ms. Ravina and found reddish fluid. Dr. Surme who claims to make frantic calls in the morning of 2nd July when on that day as established there was no danger to life, delayed the shifting of Ms. Ravina to GMC. Both Dr. Pai and Dr. Surme failed to shift Ms. Ravina timely which in the given facts and circumstances no medical professional in ordinary senses and prudence would have done. This delay in shifting Ms. Ravina to GMC is a gross negligence on part of both Dr. Surme & Dr. Pai.
30. Call records on 10th July; show a number of calls between Pai Nursing Home and Dr. Amonkar:-
(i) Dr. Amonkar mobile at Pai Nursing Home at 9:29 a.m. 75 sec.
(ii) Pai Nursing Home to Dr. Amonkar at 9.34 a.m. 52 sec.
(iii) Pai Nursing Home to Dr. Amonkar at 2.14 p.m., 107 sec.
(iv) Pai Nursing Home to Dr. Amonkar at 6.19 p.m. 90 sec.
(v) Dr. Amonkar to Pai Nursing Home at 6.35 p.m. 127 sec.
(vi) Pai Nursing Home to Dr. Amonkar at 7.05 p.m. 72 sec.
(vii) Pai Nursing Home to Dr. Amonkar at 7.39 p.m. 12 sec.
(viii) Pai Nursing Home to Dr. Amonkar at 8.28 p.m. 26 sec.
(ix) Pai Nursing Home to Dr. Amonkar at 10.03 p.m. 13 sec.
This shows that Dr. Amonkar was in constant touch with Pai Nursing Home throughout, contrary to his statement. Dr. Amonkar had tried to make a case that he waited till 7:00 p.m. for patient to be shifted and went to visit his mother on 10th evening and on reaching there at 8.00 p.m. Dr. Pai phoned him that the patient has reached hospital, but as he was in Amona he could not come for the operation at GMC immediately. However, call records show the location of Dr. Amonkar from 6:19 p.m. to 8.28 p.m. near Patto Plaza, Merces and at 10.03 p.m. near Midas Touch at Panaji. It is, therefore, clear that Dr. Amonkar is again trying to make a false claim to show his sincerity although he had not taken care to go himself for the 2nd operation in such a serious condition especially when the first operation was performed by him and these circumstances should have been a natural concern for him. Dr. Amonkar on 10th July was also in constant touch with Pai Nursing Home, however, he himself did not act as per the gravity of the situation when the patient was shifted to GMC and allowed Dr. Amir Ali to operate. These serious misconduct of Dr. Amonkar are unbecoming on the part of a Government Servant and a professional Doctor.
31. Dr. Amonkar has stated that Dr. Amir Ali was not supposed to operate Ms. Ravina himself. He however made no efforts to either reach GMC to perform the operation himself or to ensure that operation is atleast done by Doctor who was supposed to do it. He did not contact the consultant on duty. He said that he tried to contact Dr. Patil the Unit In-charge. If Dr. Patil was not contactable, he could have contacted the consultant on duty or he could have himself rushed to GMC for the operation as the call record show his location in and around Panaji only. Dr. Patil had also stated that Dr. Amir Ali should have consulted the Consultant on Duty before starting the operation. Dr. Reshma had stated that she was not informed of the case before the pre-operative period and she was informed prior to closer of operation. It is, therefore, clear that Dr. Amir Ali operated Ms. Ravina under the instruction from Dr. Amonkar. There is a call at 6:30 p.m. from Dr. Amir Ali to Dr. Amonkar and a subsequent call is only late at night at 11:17 p.m. from Dr. Amonkar to Dr. Amir Ali. Dr. Amir Ali, should not have operated the complicated case without involving the Consultant on Duty or Unit In-charge or Dr. Amonkar himself. The presence of senior Doctors probably could have found the cause of bleeding which Dr. Amir Ali could not detect.
32. During post operative care at GMC, there are allegations from Ms. Ravika Rodrigues that she was not looked after well and especially Dr. Patil was very rude with the family members. Though Dr. Patil in his statement denied these allegations, however, it is observed that Dr. Patil has stated that the relatives of patient were crowding the patient and has tried to find fault with the relatives of the patients. The statement of Dr. Reshma that either mother or sister would be present with the patient on rounds and the patients relatives did not cause any obstruction in examining the patient and they used to be present in the corridor shows that Dr. Patil is falsely making counter allegations only to defend himself. Had there been only such situation as stated by Dr. Patil, he being Unit In-charge could have taken help of administration which he said he did not do. Dr. Patil could have exhibited a sensible approach and ensured proper communications taking due care of the sentiments and emotions of the relatives under such circumstances. Dr. Patils behaviour certainly added to the injury which could have been prevented had the Doctors exhibited sensitivity in this regard.
33. About cause of death the opinion of the medical professionals in the Committee is that it is caused by Septicaemia due to intra abdominal haemorrhage following Appendicectomy and patient might have been saved if she was referred to GMC immediately after recognizing the gravity of the situation on 2nd admission on 9/6/10 in which case the patient could be timely operated as an emergency.
34. The medical professional in the Committee did not find any fault in the post operative medical care at GMC but there has certainly been not only communication gaps with the relatives of Ms. Ravina but also the treatment of patient relatives especially by Dr. Patil left much to be desired.
35. While negligence may be defined as the breach of duty caused by omission to do something which reasonable men guided by this considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and a reasonable man would not do, however, a negligence in context of medical profession requires a closer scrutiny of the case and the standard may be that of an ordinary competent person exercising ordinary skill in the profession. Dr. Surme, Dr. Pai and Dr. Amonkar are jointly responsible for the sequence of events that led to the unfortunate death of Ms. Ravina Rodrigues.
It has come on record that the first operation was performed without any routine diagnostic tests required under such circumstances. Dr. Amonkar had himself admitted that the OT of Pai Nursing Home was not upto the mark and was in unhygienic condition and it has also been established that there was no urgency to perform that operation at Pai Nursing Home. Further, as already observed, the delay caused by Dr. Pai and Dr. Surme in shifting Ms. Ravina to GMC is gross negligence on their part. Had Ravina been shifted timely in GMC probably the condition may not have worsened leading to her death. Dr. Pai and Dr. Surme on this aspect failed when in the given facts and circumstances, no medical professional in his ordinary sense and prudence would have done so.
The case definitely needs to be investigated for Criminal negligence on the part of Dr. Pai and Dr. Surme.
8. The case of the complainants, in brief, is that the death of Ravina occurred due to the clear negligence of the OPs, primarily in conducting the first surgery on 3/6/10 at Pai Hospital without any routine diagnostic test, in a clinic/nursing home which was in an unhygienic condition and not up to the mark; delay in giving her timely medical treatment leading to the worsening of her condition, causing her to be shifted to GMC, and ultimately to her death.
Complainants state that they lost their young daughter at the age of 17 due to sheer negligence and apathy of the OPs.
9. On the other hand, the case of the OPs, appears to be that Ravina had suffered from an acute attack of appendicitis on 2/7/10 and was taken directly to Dr. Pai Hospital where she was operated by Dr. Amonkar on 3/7/10 and was discharged on complainants request on 5/7/10 and was re-admitted on 9/7/10 with abdominal discomfort and distention and was given appropriate care and when it was found that she was suffering from bleeding ovarian cyst and collection of fluid in the abdomen, she was immediately shifted to GMC for better health care facilities and treatment and when Ravina was admitted at 7.30 p.m. on 10/7/10 at G.M.C. her condition was healthy, stable and good and that was even at 9.30 p.m. when she was taken for operation. The OPs state that the two illnesses had nothing to do with one another and that Ravina died due to the failure of second major operation which was done in GMC for the removal of ovarian cyst, which was done by a Surgeon who was not M.S. qualified inspite of several consulting surgeons being available there and after the operation Ravina developed a number of complications like blockage of draining tubes premature removal of drains which aggravated the problems of distention and infection, followed by pneumonia and ARDS. It is stated that Ravina required ICU treatment which was not available. Their defense appears to be that the death of Ravina was due to total failure of health care system in GMC and doctors and staff who examined and treated Ravina, failed to provide necessary medical treatment including ICU as an when required by her. It is stated that Ravina died because of hospital acquired infection. At the same time it is stated by Dr. Surme, OP No. 1, that Ravina, after the major operation, was stable and fine for two days namely 11/07/10 and 12/07/10 (at pg. 683)
10. The complainant No. 1, the father of Ravina, has filed his affidavit- in-evidence in support of their case. The OPs have also filed their affidavits-in-evidence. Dr. Surme, OP No. 1, has filed the affidavit of Dr. Uday C. Kakodkar and Dr. Pai, OP No. 4, has filed the affidavit of Dr. K.S. Gunjyal. While Dr. Kakodkar works as Asst. Professor, Department of Pulmonary Medicine of GMC, Dr. K.S. Gunjyal, is a former Superintendent of Hospicio Hospital and now works as Sr. Consultant Surgeon at Rajtara hospital, Vasco-da-Gama, Goa.
11. As already noted by us, in our order dated 21/01/13, (at page 506) the death of Ravina the complainants daughter on 29/07/10 has given rise to three different proceedings. First, the present complaint attributing medical negligence civil on the part of OPs. Second, a case of medical negligence criminal
- under Section 304A, 468, 471, 201 r/w section 34 IPC pursuant to a complaint filed by Complainant No. 1 on 25/11/11 and third, a case for disciplinary action to be taken by Goa Medical Council against the OP Nos. 1, 2 and 3 and Dr. Rajesh Patil pursuant to complaint filed by Complainant No. 1 on 7/12/11. We have noted elsewhere that the complainants have made it amply clear that this case against the OPs is mainly based on the report of the Committee chaired by the said Secretary (Health). As far as Dr. Rajesh Patil is concerned, we may observe at this very stage, that the complainant No. 1, in his cross examination, has now admitted in answer to question No. 115 of Dr. Surme, OP No. 1, that the complainants learnt later that Dr. Rajesh Patil was not responsible for the death of their daughter, though he did not treat her in a manner a doctor should have treated and they were not happy with his general behavior. Complainants have also gone to the extent of now saying that it is Dr. Rajesh Patil who got Ravina shifted to I.C.U., after a ventilator bed was made available.
12. In our order dated 30/11/12 (copy at page
455) we have observed that the complaint under C.P. Act is by way of summary proceedings. It is an additional remedy provided, which is expected to be more expeditious and less expensive. Procedure provided by C.P. Act is simple, short and summary, and if that be so, there can be no stage in such summary proceedings to decide certain objections as preliminary. All objections need to be decided at one go, so to say. We cannot contemplate a stage like Order 14, Rule 2, CPC, in summary proceedings. Rule 2 provides that a suit shall be disposed off on all issues unless it could be dispose off on issues of law relating to jurisdiction or bar created by any law in force. That is also not the case at hand. All objections can be decided at one stretch, so to say, after the parties are given opportunity to produce their evidence and documents in support of their respective cases. Deciding certain objections, as preliminary, in proceedings which are to be summary, would amount to defeating the mandate given by sub section (3A) of Section 13 of C.P. Act, 1986 and Regulation 26(1) of C.P. Regulations 2005. This view of ours, now finds support in the order dated 21/2/13 of the National Commission in the case of Smt. Kovi Ajitha & ors., 2013(1)CPR 529 wherein the Lr. Commission has stated:
this Commission declined to decide the application under Order 7, Rule 7 CPC on 2 counts. Firstly, that order 7, CPC is not applicable to the proceedings under the Act and secondly on the ground that if such preliminary objections are entertained and decided at the initial stage, it would frustrate the whole purpose of speedy disposal of consumer complaint which is the object of the Act. Thus, we are of the view that there is no merit in the plea of the Lr. Counsel for the complainant that preliminary objections regarding maintainability of the complaint as also the limitation have already been decided by the Commission.
13. We have held that a consumer complaint is a civil proceeding and being so a consumer complaint has got to be decided on preponderance of probabilities. Consumer complaints are no doubt decided on the basis of evidence as ordained by Section 13(2)(b)(i) of the C.P. Act, 1986, but this evidence need not meet the strict requirements of the Evidence Act, 1872. In this consumer jurisdiction we also do not follow strict rules of pleadings and in this context we may only refer to V. Kishan Rao vs. Nikhil Super Specialty Hospital, 2010(5) SCC 513, wherein the Apex Court has held in para 13, that the complaints before the Fora are tried summarily and the Evidence Act in terms does not apply reiterating what the Apex Court had earlier held in Malay Kumar Ganguly 2009(9)SCC 221 that provisions of the Evidence Act are not applicable and the Fora under the Act are to follow the principles of natural justice.
14. What standard then do the Fora follow under the C.P. Act in appreciating evidence?
We have set to ourselves in RP No. 13/12 filed by Fomento Resorts a standard to follow in appreciating the evidence produced by the parties and which in the words of Honble Mr. Justice C.K. Thakker, the then Judge of the Supreme Court is:
Fortunately, strict and technical rules of evidence and procedure do not apply to adjudicating machineries under the Act. They can act on materials which may not be described as evidence within the meaning of Evidence Act, 1872. There is no allergy to hearsay evidence, provided such material has probative value and opportunity has been afforded to the OP as to what he has to say about the evidence led. As has been said by Lord Diplock in R. v. Deputy Industrial Injuries Commissioner, ex parte Moore, a(1965) 1 All ER 21, the only limitation on tribunals or quasi judicial authorities deciding disputes between the parties is that he must not spin a coin or consult an astrologer. If he takes into account material which is relevant which has probative value and in respect of which an opportunity has been afforded to the other side, no grievance can be made against a decision reached by the authority on the basis of such material. The test in such cases is that the adjudicating authority must be unbiased and impartial, fair hearing must be given to the party affected and he should not be hit below the belt.
15. Before going further, a brief history of the proceedings would not be out of place.
Application for amendment dated 17/11/12 filed by Dr. Surme, OP No. 1, was granted on 28/11/12 in view of no objection given, on behalf of the complainants. Application for amendment dated 3/10/12 filed by Dr. Surme, OP No. 1, was allowed by order dated 30/11/12 (at page 455). Application dated 4/10/12 filed by Dr. Pai, OP No. 2, seeking leave to produce an alleged defamatory CD was rejected by the same order. Application dated 11/01/13 filed by Dr. Surme for dismissal of the complaint was dismissed by order dated 21/01/13. Applications dated 17/12/12 filed by Dr. Surme and Dr. Amonkar and application dated 4/1/12 filed by Dr. Pai were allowed and cross examination of the complainant No. 1 was allowed to be carried out by delivering interrogatories to be answered on affidavit (copy at page 511). Applications filed by Dr. Surme dated 1/4/13 r/w application dated 9/4/13 was disposed off by order dated 6/5/13 (copy at page 927). Application dated 11/1/13 filed by OP Nos. 2 and 4 to refer the matter of alleged medical negligence to independent doctors was rejected by another order dated 21/01/13. Application dated 18/04/13 filed by the complainants for cross examination of Dr. S. Gunjyal was also rejected by order dated 6/5/13.
16. Likewise application dated 1/4/13 filed by Dr. Pai for cross examination, which application was supported by Dr. Surme was also rejected by the same order dated 6/5/13 for reasons stated in the said orders. In our order dated 6/5/13 we had made an observation that the OPs to some extent had abused the right given for cross examination on interrogatories by asking the complainant No. 1, who is a layman, questions which medical man were required to answer on the very documents produced by OP No. 1, Dr. Surme. The complainants application dated 6/5/13 for the cross examination of the OPs was also rejected by order dated 20/6/13 for reasons stated therein and particularly observing that the complainants were not diligent in filing the application earlier, particularly on 18/04/13 when they had filed the application for cross examination of Dr. Gunjyal. Application dated 27/9/13 filed by the complainants was also dismissed observing that it was filed belatedly and further observing that in case the same was allowed, it was bound to put the clock back on the final disposal of this complaint which was already delayed, and further observing that medical terms can always be explained with reference to medical dictionaries and also observing that the medical conditions of the deceased Ravina could have been explained by Dr. Jindal, the Dean of GMC, but the complainants had chosen to oppose his cross examination, tooth and nail, when it was applied for by some of the OPs.
It may be stated here that the Complainants took advice from a doctor but chose not to file his affidavit, so much so that, whenever the Commission called for any clarification from the advocates appearing, the same always came from Dr. Surme.
17. After completion of arguments on 30/1/14 the complainants have filed an additional affidavit on 5/2/12 to say that on 10/7/10 prior to his daughter was shifted to GMC, Dr. Pai insisted that he pays him the amount of Rs. 2500/- towards bed and hospitalization charges failing which he would not discharge his daughter and accordingly he paid the said amount but it was not acknowledged by written receipt and that earlier in the day he had paid a sum of Rs. 500/- for the ultrasound. This affidavit is filed by way of afterthought to meet the submission that no payment was made to the Pai Hospital from 9/7/10. If true, the complainants could have stated this fact either in their complaint or for that matter in the affidavit-in-evidence of Complainant No. 1. Parties ought not be allowed to go on filing affidavits in proceedings which are to be summary. There can never be an end to such practices.
18. The application dated 30/01/14 filed by OP Nos. 2 & 4 should also meet the same fate.
This application has been filed to counter the statement made by Dr. Amonkar before the Committee to the effect that the OT was not up to the mark and in hygienic condition and inspite of that he did the operation. By the said application 30/1/14 Dr. Pai seeks to contend that after Ravinas operation two more operations were performed by his wife Dr. Usha Pai and nothing happened to the patients who were operated by her. However, it is nobodys case that Ravina got any infection on account of an unhygienic condition of the OT of Pai hospital. OP Nos. 2 and 4 had ample time to produce the said documents in case they so desired since the allegations of un-cleanliness are found in the very report of the Committee which has been the basis of the complaint filed by the complainants.
19. A word about negligence, which has been taken note of by the distinguished members of the Committee in para 35 of the report.
20. In one of the earlier cases, after coming into force of the Consumer Protection Act, the Apex Court, in Poonam Verma vs. Ashwin Patel and ors., AIR 1996 SC 2111 has held as follows:
12. The decision of this Court in Indian Medical Association vs. B.P. Shantha (1995) 6 SCC 651, has settled the dispute regarding applicability of the Act to persons engaged in medical profession either as private practitioners or as Government Doctors working in Hospitals or Govt. Dispensaries. It is also settled that a patient who is a 'consumer within the meaning of the Act has to be awarded compensation for loss or injury suffered by him due to negligence of the Doctor by applying the same tests as are applied in an action for damages for negligence.
13. Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do. or doing something which a prudent and reasonable man would not do. (See : Blyth vs. Birmingham Waterworks Co. (1856) 11 Ex 781; Bridges vs. Directors, etc. of N.L. Be. (1873-74) LR 7 HR 213; Governor-General in Council vs. Mt. Saliman (1948) ILR 27 Pat. 207; Winfield and Jolowicz on Tort).
14. The definition involves the following constituents:
(1) a legal duty to exercise due care;
(2) breach of the duty; and (3) consequential damages.
15. The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, or, by doing some act which a reasonable prudent man would not do.
16. So far as persons engaged in Medical Profession are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the exercise of it, a reasonable degree of care and skill. It is true that a Doctor or a Surgeon does not undertake that he will positively cure a patient nor. does he undertake to use the highest possible degree of skills as there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test, which will also be clear from a study and analysis of the judgment in Bolam vs. Friern Hospital Management Committee. (1957) 2 All ER 118, in which, McNair, J., while addressing the jury summed up the law as under : The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent.
17. This decision has since been approved by the House of Lords in Whitehouse vs. Jordon (1981) 1 All ER 267 (HL); Maynard vs. West Midlands Regional Health Authority (1985) 1 All ER 635 (HL); Sidaway vs. Bathlem Royal Hospital (1995) 1 All ER 643 (HL); Chin Keo vs. Govt. of Malaysia (1967) 1 WLR 813 (PC).
18. The test pointed out by McNair, J. covers the liability of a Doctor in respect of his diagnosis, his liability to warn the patients of the risk inherent in the treatment and his liability in respect of the treatment.
19. This Court in Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128, laid down that a Doctor when consulted by a patient owes him certain duties, namely,
(a) a duty of care in deciding whether to undertake the case;
(b) a duty of care in deciding what treatment to give; and
(c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.
20. The principles were reiterated in A.S.. Mittal vs. State of U.P. AIR 1989 SC 1570, in which wide extracts from that judgment were made and approved.
21. In Kusum Sharma & Others vs. Batra Hospital & Medical Research Centre & Others (AIR 2010 SC 1050/2010 (3) SCC 480), the Apex Court took note of various decisions and in para 48 stated as follows:
45. According to Halsbury's Laws of England Ed.4 Vol.26 pages 17-18, the definition of Negligence is as under:-
"22.
Negligence : Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient ."
The Apex Court has further observed as follows:
48. In Roe vs. Minister of Health (QB P.83), Lord Justice Denning said : It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way."
50.
In Whitehouse v. Jordon House of Lord Edmund-Davies, Lord Fraser and Lord Russell (WLR p.258 B & D):
"The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon (dictum of McNair Jo. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 at 121).
51. In Chin Keow v. Government of Malaysia (WLR P.586)the Privy Council applied these words of McNair J in Bolam v. Friern Hospital Management Committee:
"..........where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill."
53. In Poonam Verma v. Ashwin Patel where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under:- (SCC p.348 para 42) "42. Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or Negligence per se."
66. This court in a landmark judgment in Jacob Mathew vs. State of Punjab while dealing with the case of negligence by professionals also gave illustration of legal profession. The court observed as under:- (SCC p.18, para 18) "18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd. , [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charles worth & Percy, ibid, Para 8.03)"
67. In Jacob Mathew's case, this Court heavily relied on the case of Bolam (supra). The Court referred to the opinion of McNair, J. (Bolam case, WLR p. 586) defining negligence as under:- (Jacob Mathew case, SCC p.19, para 19)
"19. Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
70. In Hucks v. Lord Denning speaking for the Court observed as under:-
"a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
74. In Jacob Mathew's case (supra) this Court observed that higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. The court further observed as under:- (SCC PP. 21-22, para
25) "25......At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."
78. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it.
A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals.
82. In a significant judgment in Indian Medical Association v. V.P. Shantha & Others (1995) 6 SCC 651, a three-Judge Bench of this Court held that service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of `service' as defined in Section 2(1)(o) of the Consumer Protection Act, 1986. Deficiency in service has to be judged by applying the test of reasonable skill and care which is applicable in action for damages for negligence.
86. In Jacob Mathew's case (supra), conclusions summed up by the court were very apt and some portions of which are reproduced hereunder:- (SCC P. 32, para
48) (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three:
'duty', 'breach' and 'resulting damage'.(2)
Negligence in the context of 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 judgment 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.(3)
The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
22. In Malay Kumar Ganguly, AIR 2010 SC 1162/2009 CTJ 1064 the Apex Court has held that:
Negligence means either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; is rather a comparative term. In determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstance have to be taken into account.
Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances because it is in violation of statue or ordinance or is contrary to the dictates of ordinary prudence.
Referring to Martin F. DSouza vs. Mohd. Ishfaq the Apex Court referred to the precaution which the doctors/ hospitals, etc. shoud have taken in the following terms:
(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly
(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.
(c) Appellant doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.
(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.
(e) An expert should be consulted in case of any doubt.(emphasis supplied) The Court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis not because he leads evidence from a number of medical experts who are genuinely of opinion that the defendants treatment or diagnosis accorded with sound medical practice. The use of these adjectives responsible, reasonable and respectable all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion had a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable and respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.
The law on medical negligence also has to keep up with the advances in the medical science as to treatment as also diagnostics. Doctors increasingly must engage with patients during treatments especially when the line of treatment is a contested one and hazards are involved.
Standard of care in such cases will involve the duty to disclose to patients about the risks of serious side effects or about alternative treatments. In the times to come, litigation may be based on the theory of lack of informed consent. A significant number of jurisdictions, however, determine the existence and scope of the doctors duty to inform based on the information a reasonable patient would find material in deciding whether or not to undergo the proposed therapy.
The standard of duty to care in medical services may also be inferred after factoring in the position and stature of the doctors concerned as also the hospital; the premium stature of services available to the patient certainly raises a legitimate expectation. We are not oblivious that the source of the said doctrine is in administrative law. A little expansion of the said doctrine having regard to an implied nature of service which is to be rendered, in our opinion, would not be quite out of place.
23. Abdominal pain in the female can be one of the most difficult cases to diagnose correctly. (at page 155) 23.1 The Appendix doesnt seem to do anything useful, and the treatment for appendicitis is an operation to remove the appendix, as the body can live without it.
23.2 Appendicitis is a painful inflammation or swelling of the appendix.
23.3. Appendicitis occurs when the appendix becomes blocked, often by a stool, a foreign body, or cancer. The blockage may also be due to an infection, since the appendix swells up in response to any infection in the body.
23.4. The classic symptoms of appendicitis include:
Dull pain near the naval or the upper abdomen that becomes sharp as it moves to the lower right abdomen. This is usually the first sign.
Loss of appetite.
Nausea or vomiting soon after the abdominal pain begins.
Abdominal swelling.
A raised temperature.
Inability to pass wind.
23.5. In around 50% of cases there are other symptoms, including:
Dull or sharp pain anywhere in the upper or lower abdomen, back or rectum Painful urination.
Vomiting that precedes the abdominal pain.
Severe cramps.
Constipation or diarrhea with wind.
24. Diagnosing appendicitis can be tricky. The symptoms are often vague or extremely similar to other ailments, including gall bladder problems, bladder or urinary tract infections, Crohns disease, gastritis, intestinal infection and ovary problems.(Boots web MD, at page 1097)
25. Although acute appendicitis is the most common abdominal surgical emergency, the diagnosis can be extremely difficult at times. There are a number of common conditions that it is wise to consider carefully and, if possible, exclude. The differential diagnosis differs in patients of different ages; in women, additional differential diagnosis are diseases of the female genital tract Differential Diagnosis of acute appendicitis would show that the abdominal pain can also be due to:
Adult Adult Female Mittelschmerz Regional enteritis Ureteric colic Perforated peptic ulcer Torsion of testis Pancreatitis Pelvic inflammatory disease Pyelonephritis Ectopic pregnancy Torsion/rupture of ovarian cyst endometriosis It is stated that in women of childbearing age that pelvic disease most often mimics acute appendicitis. A careful gynecological history should be taken in all women with suspected appendicitis, concentrating on menstrual cycle, vaginal discharge and possible pregnancy. The most common diagnostic mimics are pelvic inflammatory disease (PID), Mittelschmerz, torsion or hemorrhage of an ovarian cyst and ectopic pregnancy. Torsion/ hemorrhage of an ovarian cyst, it is stated, can prove a difficult differential diagnosis, and, when suspected, pelvic ultrasound and a gynecological opinion should be sought. If encountered at operation, untwisting of the involved adnexa and ovarian cystectomy should be performed, if necessary, in women of childbearing years. (Bailey and Love, Short Practice of Surgery, at page 417)
26. The following tests are usually used to make the diagnosis:
An abdominal examination to detect inflammation.
A urine test to rule out a urinary tract infection.
A rectal examination.
A blood test to see if your body is fighting infection.
CT (computerized tomography) scans and ultrasound.
(at page 1098)
27. A word about Leukocytosis would not be out of place. Leukocytosis is defined as a condition where the white blood cell (WBC) count is increased. A condition with an increased count of more than 11,000 leukocytes per cubic mm of adult human blood is termed as Leukocytosis. The WBC count is often increased as a reaction of the bone marrow to infection or inflammation. Certain bacterial and viral infection can trigger Leukocytosis. Leukocytosis is also related to strong immune reactions like asthma and other allergy attacks. Some of the causes of Leukocytosis include stress, intake of certain medications like lithium, beta agonists, surgical removal of the spleen, hemolytic anemia and cancer. Both physical and emotional stress results in an elevation of the WBC count. Physical stress can be due to excessive exercising, anesthesia, seizures and other illness. The signs and symptoms of Leukocytosis are basically due to the underlying disease, which causes an abnormal elevation in WBC count. Diagnosis and treatment of underlying cause and disease plays an important role in the treatment of Leukocytosis. Bone marrow transplant and blood transfusion are done to treat severe Leukocytosis (www.medindia.net) (emphasis ours)
28. A word about Septicaemia will also not be out of place. Bacterial infection of the blood includes three conditions namely Bacteraemia, Septicaemia and Pyaemia. Septicaemia means presence of rapidly multiplying, highly pathogenic bacteria in the blood i.e. pyogenic cocci, bacilli of plague, etc. Septicaemia is generally accompanied by systemic effects like toxaemia, multiple small haemorrhages, neutrophilic leucocytosis and disseminated intravascular coagulation (DIC) (Systemic Pathology, page 151).
29. Hemoperitoneum is the presence of blood in the peritoneal cavity. The blood accumulates in the space between the inner lining of the abdominal wall and the internal abdominal organs. Hemoperitoneum is generally classified as a surgical emergency; in most cases, urgent laparotomy is needed to identify and control the source of the bleeding. In selected cases, careful observation may be permissible. The abdominal cavity is highly distensible and may easily hold greater than five liters of blood, or more than the entire circulating blood volume for an average-sized individual.
Therefore, large-scale or rapid blood loss into the abdomen will reliably induce hemorrhagic shock and may, untreated, rapidly lead to death. Amongst the causes of Hemoperitoneum are bleeding due to ruptured ectopic pregnancy or uterine rupture or rupture of Corpus luteum in some cases.
Hemoperitoneum can be reliably diagnosed with the following examinations:
Focused assessment with sonography for trauma (FAST) Paracentesis or Diagnostic peritoneal lavage.
Computed tomography.
Diagnostic laparoscopy or exploratory laparotomy.
Classically, hemoperitoneum was an indication for emergency surgery to locate the source of bleeding and also to recover spilled blood from the peritoneal cavity and to use it for auto-transfusion if it has not been contaminated by ruptured bowel contents. (at page 1099, emphasis supplied)
30. The burden to prove the case that the OPs were negligent or deficient in medical services was upon the complainants meaning thereby the task of convincing the Court that their version of facts is correct one. No doubt the loss of a daughter at a young age must have been a sad and distressful situation for the complainants but that does not permit anyone to shoot arrows in all directions. The complainants certainly can take the benefit of the findings of the Committee to prove their case but they cannot be allowed to argue contrary to the said findings, and in the absence of any medical evidence produced by them. The Committee has not accepted that any report was obtained by Dr. Surme from Techno or Techno Clinic Laboratory (see para 24) and therefore the complainants cannot now be heard to say that on 03/07/10 the leucocyte count of Ravina was 16500 per cmm.
The removal of appendix on 03/07/10 in our view was a case which in medical terms is referred to as negative appendectomy (appendectomy for a histologically normal appendix) (see page 395). Complainants statement that Ravina was taken for the first time to Dr. Surme on 26/6/10 cannot be accepted in the light of the prescriptions which were produced before the Committee and which is in tune with the case of Dr. Surme. Complainants version that Ravina was admitted in Pai hospital on 2/7/10 at about 9.30 p.m. and was straight taken for surgery on 3/7/10 without conducting any tests has been accepted by the Committee and we too endorse that conclusion. Which doctor would personally take blood from the patient on the O.T. and go to a laboratory at 7.00 a.m. and wait for the operation, for report to be dictated on phone? and which Laboratory is open at 7.00 a.m.? Complainants case that no specimen of the removed appendix was shown to them cannot be accepted. Angela Fernandes, the Nurse of Pai hospital, had stated before the Committee that the appendix which was small was put in the formalin bottle and given to Complainant No. 2 which she left on the table on 5/7/10 at the time of discharge of Ravina.
Complainant No. 2 has not filed any affidavit to the contrary. Nurse Angelas evidence falsifies the version of the OPs that there was anything serious with the appendix which was removed. It is rather strange to note that the OPs, and particularly Pai hospital, did not choose to send the said specimen for histopathological examination nor told Ravinas mother, complainant No. 2, that she should send the same for histopathological examination by giving the name of the laboratory where such tests were being done. If complainant No. 2 was instructed to do so, we do not think that she would have left the specimen on the table at the time of discharge of Ravina on 5/7/10. In these modern days and times it is unheard of that anything which is removed by surgery is just discarded without any histopathological examination. It is to be noted that Ravina was under treatment of Dr. Surme from 20/06/10 and therefore the chances that the appendix would turn septic are highly remote. Complainants also cannot be heard to say that post operative diagnosis was slipped misoappendix ligature (page 1082). That is nobodys case. The Committee does not say so. The Committee only says that the death was caused by Septicaemia due to intra abdominal haemorrhage following appendicectomy; not due to appendicectomy.
It is to be noted that O.T. notes, whether written at the dictation of Dr. Amonkar or not, show that vicryl stitches were seen and the appendicular base was normal and this is confirmed by postmortem report. Complainants also cannot be heard to say that ventilator bed was available in GMC on 13/7/13, contrary to records produced. Complainants were free to examine Dr. Chitra Juwarkar to prove the availability of bed with ventilator on 13/07/10.
30.1. Complainant No. 1 has completed his education upto 5th Std. of English but when convenience suits him, he says that he cannot read and write English (page 960). We are not inclined to believe, though the Committee is of a different opinion, that Ravina was discharged on 5/7/10 when she was still feeling uncomfortable and inspite of complainants request to keep her for some more days. It is quite probable, that with the removal of appendix and medicines given thereafter, Ravina must have felt little better, inspite of the cyst being there, and was taken home. It is common knowledge that nobody remains in the hospital unless absolutely required, as that tends to upset the familys daily schedule. It is also common knowledge that a private hospital would be ready to keep a patient for longer period than required, as that adds to their income.
31. The defences taken by the OPs, on the whole, are confusing and lack clarity.
Why does Dr. Surme not tell in his affidavit in evidence in paras 25 to 28 as to what medicines he prescribed on 20/06/10 and in para 29 what medicines he prescribed on 26/06/10?
32. The first submission made on behalf of Dr. Surme and others, which needs to be considered, is that this complaint is filed in violation of the directions in Jacob Mathew vs. State of Punjab and anr., 2005 CCC 370/2005 (6) SCC 1. This submission was made earlier and we had occasion to consider the same in our order dated 21/01/2013. We have already held that a consumer complaint is in the nature of civil proceedings. In Civil proceedings, a mere preponderance of probability is sufficient. The directions of the Honble Supreme Court in Martin F. DSouza (Supra) are held to be, in V. Kishan Rao vs. Nikhil Super Speciality Hospital and anr. (2010 (2) CCC 356/2010 (5)SCC 513) contrary to the three Judge Bench in Jacob Mathews case observing that:
In Mathew the direction for consulting the opinion of another doctor before proceeding with criminal investigation was confined only in cases of criminal complaints and not in respect of cases before the Consumer Fora. The reason why the larger bench in Mathew did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matters. This has been elaborately discussed in Mathew.
33. Again the Apex Court in A. Srirmannarayan vs. Dasari Santa Kumari & anr., 2013 (1) CPR 601 has held that:
the Judgment rendered by two Judge Bench of this Court in the case of Martin F. DSouza has been correctly declared as per incuriam by the judgement in V. Kishan Rao as the law laid down in Martin F. DSouza was contrary to the law laid down in Jacob Mathew.
34. The next submission made is with reference to Section 24A of the C.P. Act and it is submitted that the complaint is not filed within two years from the date of cause of action. The cause of action is sought to be reckoned from 03/07/2010 when Ravina was operated or alternatively from 09/07/2010 when Ravina was readmitted or lastly from 10/07/10 when Ravina was shifted to G.M.C. It is submitted that Complainants assertion that cause of action arose first on 29/07/2010 ought not to be accepted. We are unable to accept this submission. Dr. Surmes negligence can be traced back to 26/06/2010.
Cause of action will arise only when result is felt of the negligent acts, and, in this case, it is the death.
Complaint is within time, except against OP No.4.
35. The next submission made is that the said Committee ought to have been constituted by the Dean of Goa Medical College in terms of notification no. 71/32/84 PHD dated 13/01/1988. Are we to say that the Dean of Goa Medical College is an authority higher than Government of Goa?
The Dean, GMC is the head of GMC, may be a separate department of the Government but certainly is under the control and supervision of the Government of Goa. The Government of Goa was competent to constitute the said Committee, and as rightly submitted on behalf of Dr. Surme, it was a fact finding Committee. It is to be noted that under the relevant provisions of the Constitution of India, the executive power of the State extends to all matters with respect to which the Legislature of the State has powers to make laws.
36. The next submission is that the Inquiry Committee was headed by Shri Rajiv Verma, Secretary to the Government of Goa who was not a qualified doctor and Shri Sardessai, the Joint Secretary to the Department of Health, who is also not a doctor. The submission is that since the death of Ravina is alleged to have been caused due to Hemorrhagic Corpus Luteal Cyst and the complications arising therefrom, the Committee ought to have had experts in the field of gynaecology, forensic medicine and pathology. We are not inclined to accept this submission for we find that the Committee consisted of the Dean of GMC who is a highly respected neuro Surgeon and besides him another Surgeon and so also the Director of Health Services besides another doctor. Although the Committee was headed by the said Secretary (Health), the Committee consisted of two surgeons and one DGO, like Dr. Surme, and another MBBS. The report is quite clear that it has been essentially given by the medicalmen, so to say, in the said Committee so much so that they have clearly stated that they, the medical professionals in the Committee, were of the opinion that the death of Ravina was caused by Septicaemia due to intra abdominal haemorrhage following appendicectomy. Moreover, as noted earlier, the Director of Health Services, as far as gynaecology is concerned appears to have had the same qualification as that of Dr. Surme. The Committee therefore cannot be considered to be a nullity, as submitted on behalf of Dr. Surme and others. The submission therefore needs to be rejected.
37. The next submission is that the Committee report cannot be considered to be an independent report as four of the members of the Committee are connected with the Government and therefore could not have adequately dealt with the complaint against the doctors of GMC and its staff.
Dr. Gunjyal also seems to be of the view that the Committee has not blamed any doctors from GMC as that would amount to blaming their own child. In making these submissions what is not considered on behalf of Dr. Surme and others is that the Committee has indicted two of their own peers in GMC, in particular, and in the medical profession in general and therefore their independence cannot at all be doubted.
38. Another submission made is that the Complainants have been choosy in proceeding only against these OPs while leaving out Dr. Rajesh Patil. We have already stated that the complaint is based on the report of the Committee, which has indicted, the OPs as far as medical negligence is concerned. Moreover, the Complainants could not have impleaded the said Dr. Rajesh Patil before this Commission as his services were not paid for by the Complainants, and, if that be so, Complainants certainly had a choice to leave him out, and proceed only against the OPs before this Commission as the remedy available before this Commission is summary, less expensive and more expeditious. The Complainants now have also explained, as already noted hereinabove, as to why they have left out the said Dr. Rajesh Patil.
39. The submission of Dr. Surme and others that Ravina expired due to the medical negligence of the medical Officers and the concerned staff of the GMC is not even supported by his own witness the said Dr. Kakodkar and therefore needs to be rejected.
40. Another submission made on behalf of Dr. Surme and others is that the drains inserted in Ravina were removed prematurely and this is the cause of the septicaemia, as toxic material remained inside her body. It is submitted that drain A had discharged 110 c.c. of toxic material and drain B had discharged 70 c.c. of toxic material on 13/07/10, and, on 14/07/10, the said two drains had discharged 65 c.c. and 40 c.c. of toxic material, respectively. It is submitted that drain A was removed on 14/07/2010 when it was still draining 65 ccs and drain B was removed on 15/07/10 when they were still draining toxic material, and, it is the submission of lr. counsel on behalf of Dr. Surme that the premature withdrawal of these drains contributed to the infection. However, it is to be noted, that neither of the OP Surgeons have been able to tell the Commission as to what stage these drains were required to be removed, considering that Ravina was also being fed with necessary antibiotics. Neither Dr. Kakodkar nor Dr. Gunjyal who have claimed that they have given their opinion based on the case papers of Ravina, have adversely commented on the removal of the said drains and therefore this submission needs to be rejected. Or is it that the drains were removed only on 20/07/10 when the discharge was minimal? (See page 117).
41. The next submission is that the report of the Committee is inquisitorial and one sided.
We do not think it is so. The Committee heard all concerned, perused available documents and came to its own conclusions. The Committee felt that there were a number of contradictions in the statements especially those of the doctors who have dealt with the case. It is obvious that each was trying to save his own skin when it suited them and making a common cause when it suited all.
The Committee did a commendable job in accessing the mobile calls and thereby was able to nail the untruths spoken by some of them. Possibly for this reason that the report is being labeled as inquisitorial. This submission needs to be rejected.
42. Another submission made is that the cause of death was due to non-availability of ventilator support. We are not inclined to accept this submission, as well. It is an admitted position that on 13.07.2010 at about 1.45 a.m., Ravina was referred for ventilator support as she complained of breathlessness and chest pain; but no ventilator bed was available in the I.CU. till 15.07.2010 and thereafter she was managed on invasive ventilator until her death. Ravina came to GMC with infection, jaundice, anaemia on 10/07/10. By 12/07/2010, the infection had affected her kidneys acute kidney injury - and by 13/07/2010, Ravina had shown difficulty in breathing. Her WBC count fluctuated from 16800 cells/cmm on 10/07/2010 to 5900, on 11/07/2010 to 30000 on 17/07/2010 and to 28700 on 28/07/2010. In other words the infection could not be controlled. (see page 663). Put differently, the infection had taken charge of her and her liver, kidneys were collapsing and her condition had become critical and it is difficult to guess how much the Ventilator could have helped her in case she was shifted to the ventilator on 13/7/10. The OPs have also failed to prove that at the relevant time the Government had any policy under which, their patients were sent to I.C.Us. of private hospitals, on payment to be made by the Government or in which of the nearby private hospitals such ventilator beds were available on those days. The onus was clearly on the OPs. It is also common knowledge that many times patients put on ventilator spend days, altogether and do not recover at all and eventually succumb to the infections/ injuries. In our view, the non availability of the ventilator at the most might have contributed to her death, nothing more, and, that is only a guess.
43. There is preponderance of medical opinion on record that the bleeding - haemoperitonium of 2.5 liters - was due to rupture of the cyst and the bleeding was stopped after the cyst was partially excised by the Gynecologist, Dr. Sweta Mathe.
44. The question therefore is when did the cyst make its appearance?
45. On behalf of Dr. Pai, it is submitted that after the discharge of Ravina on 5/7/10 she had a blood ooze from her left ovary which could happen during ovulation period and which is physiological process subject to natural recovery in most of the cases. Dr. Surme in his written submission would also contend that Ravina might have suffered from the rupture of the ovarian cyst after she went home on 5/7/10. It appears that the bleeding of the cyst in Ravina must have started around 5/7/10 for it is also the opinion of Dr. Rajesh Patil as expressed by him before the Committee stating that Ravinas SIRS (Systematic Inflammatory Response Syndrome), had started 3-4 days before she came to GMC on 10/07/10. At the same time, Dr. Surme by taking into consideration Ravinas last menstrual period, as having started on 23/6/10 and her ovulation period having been on 7/7/10 i.e. on the 15th day, has submitted that the cyst was formed on 9/7/10 i.e. on the 17th day.
46. However, we are not inclined to accept these theories formulated by Dr. Pai and Dr. Surme that the blood ooze had anything to do with her ovulation period. In our view, the bleeding around 5/7/10 was not due to any functional ovarian cyst as such, but on account of the bleeding of a developed and existing cyst. The possibility of a cyst persisting for a longer period than two months, is expressed on Shaws Textbook of Gynaecology (at page 903). It is also stated therein that sometimes the corpus luteal cyst closes prematurely and keeps on growing and this contains fluid or blood.
It is also stated that most women are able to get pregnant with corpus luteum cyst. Usually these cysts will not endanger nor interfere with the pregnancy but miscarriage is a possibility and does occur in a small percentage of women with cysts (at page
149). It is not known exactly what causes the corpus luteal to become abnormally large. But an imbalance of hormones is a contributing factor (see page 900). A Corpus luteum cyst in early pregnancy may remain until a later trimester before it finally disappears (see page 150). If a cyst becomes disturbed or expands too much it may rupture. A ruptured corpus luteum cyst can cause complications and intense pain from the fluids that spill out of the cyst and onto the ovaries or other organs. A hemorrhagic corpus luteum cyst results from excessive bleeding after rupture. A ruptured ovarian cyst of any kind can cause complications such as infection, adhesions, and can lead to a serious medical emergency. ( see page 149). It is therefore obvious that the cyst in all probability was there in Ravinas left ovary prior to 20.6.2010. (emphasis supplied)
47. There can be no dispute, as submitted on behalf of Dr. Surme and others, that the health condition of late Ravina deteriorated after the second operation. The OPs seem to contend that Ravina did not show any signs of sepsis or shock when she was admitted in GMC on 10/07/10. They say only blood was present in her abdomen. They reveal and highlight that her parameters as noted by the Anaesthetist Dr. Ruchita were good. They try to conceal that Ravina came to GMC via Pai Hospital with infection i.e. WBC count of 16800 cells/cmm, (with 73% neutrophils - an increase in circulating neutrophils above 7500/ul is the commonest type of leucocythosis and occurs most commonly as a response to acute bacterial infection - page 408, Ch. 13, Systemic Pathology), anaemia, liver swollen and with jaundice.
It may be true, that Ravina did not have fever while in Pai Hospital. However, it is not their case that they had checked Ravina for fever either on 9th or 10th July, 2010. This should have been to the knowledge of Pai Hospital. As per records, Ravina got fever for the first time in GMC on 11/07/2010, and not on 12/07/10 as suggested on behalf of Dr. Surme. That Ravina got fever on 11/07/2010 is a fact admitted by Dr. Pai and stated by Dr. Kakodkar. This fever continued on 12/07/10 and Ravina suffered from acute renal failure. This fever could only be a symptom of the infection Ravina was fighting and which she had at the time of her admission in GMC and certainly not due to the operation she underwent on 10/07/10. By 13/7/10 she found difficult to breath and had chest pain. Dr. Uday C. Kakodkar has made it quite clear that Ravina developed sepsis from the intra abdominal focus of infection which led to acute lung injury and then to ARDS and (later) the patient develop ventilator associated pneumonia and fulminant sepsis non responsive to the treatment. Dr. Kakodkar also made it quite clear that his opinion is based only on the records of the patient in GMC, meaning thereby that no case papers of Pai hospital, if there were any, were shown to him. Dr. Patil had expressed his opinion that her SIRS (Systematic Inflammatory Response Syndrome) had started 3-4 days before she came to GMC on 10/07/10 which was evident from the blood tests alone done by the private nursing home and which counts increased from 16500 to 28000. The Committee confirms that the death was due to Septicaemia due to intra abdominal haemorrhage.
47A. One may certainly agree with the opinion of Dr. Gunjyal that appendicectomy operation performed at the Pai hospital was not the cause of the bleeding. One may also agree with Dr. Gunjyal that Ravinas general condition was stable at about 7.30 p.m. on 10/07/10 as her BP was within normal limits. However Dr. Gunjyal, in giving his opinion, has not taken into consideration that Ravina came with leukocytosis, slightly enlarged liver and jaundice as well as anaemia. So the question is which infection was Ravina fighting from? And Dr. Kakodkar is on record earlier to say that Ravina had intra abdominal infection which gave rise to sepsis and ARDS. Dr. Gunjyal does not seem to have considered the said condition of Ravina and therefore his opinion that the actual cause of death was ARDS following bilateral pneumonia, on account of non availability of ventilator support, per se, cannot be accepted as true.
47. B. The Opposite parties contend that appendectomy performed on 3/7/10 was successful. It was a negative appendectomy and had to be but successful as it was performed by a experienced surgeon. Dr. Amonkar says that he has performed about 3000 appendoctomies, but he does not clarify as to how many of these he had diagonised by Alvorado Mantrels method of diagnosis or how many by sonography, etc. Dr. Amonkar says that after excising the appendix he had inspected the ovaries and uterus, on both sides which he found normal. (at page 602). We are unable to accept such a belated self serving explanation without any corroboration given, to rule out the existence of the cyst as on 3/7/2010. That apart this explanation cannot be accepted because ovaries are not clinically easily accessible (Shaws Textbook of Gynaecology, at page 901) and therefore the existance of cyst could not have been seen by him from an 8 cms opening of the abdomen.
48. Ravina was taken to Dr. Surme, their family doctor of several years, on 20/06/10 and Dr. Surme undertook her case and as such owed a duty of care towards Ravina. Dr. Surme diagnoses Ravinas ailment as appendicitis and gave her medicines for five days but the said medicines did not bring about the desired result and as such Ravina was brought back to Dr. Surme on 26/6/10.
Having found that the prescribed medicines had not acted on Ravina, it was the duty of Dr. Surme to have changed the medicines or the line of treatment or do necessary tests such as blood examination, x-ray, ultrasound or CT scan to find out what was the exact cause of pain, considering that Ravina was a menstruating women and the pain could have come from any of her gynecological problems. In not doing so Dr. Surme committed a breach of duty of due care. Dr. Surme, as a ordinary prudent Physician ought to have known that abdominal pain in a women could be due to various reasons. Dr. Surme does not appear to have advised Ravina or her mother to carry out any of such tests, though Dr. Surme says otherwise. We are not inclined to believe that Ravinas mother would not have carried out any of such tests, if advised by Dr. Surme, considering that the complainants themselves subsequently chose to do the operation on payment by going to a private hospital rather than going to a public hospital, such as Cottage Hospital or GMC. Dr. Surme appears to have relied upon his own clinical observation in coming to the conclusion that the abdominal pain suffered by Ravina was due to appendicitis. Had Dr. Surme done tests for differential diagnosis, Dr. Surme would have come to know that the problem of Ravina was not the appendix but the said cyst - Corpus luteum cyst. Dr. Amonkar blindly accepted the opinion of Dr. Surme that the abdominal pain of Ravina was due to the appendicitis and proceeded to remove the same on 3/7/10 and such an operation without diagnostic test was allowed to be carried out by Dr. Pai in his hospital. If Dr. Amonkar knew about the appendectomy to be performed on 3/7/10 at about 10.44 p.m. on 2/7/10, as concluded by the Committee, Dr. Amonkar ought to have instructed Dr. Surme or Pai Hospital more so considering that Ravina was a menstruation women, that a blood test or a sonography report, which now has become so popular, be taken to identify Ravinas real problem. That was not done. The Committee has rightly rejected the report dated 3/7/10 of TechnoClin as a subsequently fabricated document and we endorse the said finding. Which assisting doctor would have taken a blood sample at 7.00 a.m. after the patient was put on the operating table, and go rushing to a laboratory to get such a report? and which laboratory in Vasco-da-Gama is open at 7.00 a.m. or 7.30 a.m. All laboratories open past 8 a.m. The case of the OPs that the operation of appendectomy was of acute or inflamed appendicitis has been rightly discounted by the Committee and has been disproved by the evidence of nurse Angela, before the Committee. What happens in the OT is only known to the doctors and nurses in attendance and to no one else. Dr. Suresh Kanan, the anesthetist, would have been an important witness to support the case of the OPs. The case of the OPs that the removed appendix had turned septic and has not been endorsed by the attending nurse sister Angela. Adverse inference needs to be drawn against the OPs for not examining Dr. Suresh Kanan, the anesthetist of Pai Hospital.
49. Dr. C.K. Parikh in his text book of Medical Jurisprudence states that with a professional person, the word negligence has a special meaning. It is defined as the omission to do something (act of omission) which reasonable person would do, or doing something (act of commission) which a reasonable person would not do. The consequences of negligence produce liability, etc. and are covered in India under the C.P. Act. Professional negligence, malpraxis or malpractice is defined as lack of reasonable care and skill or willful negligence on the part of the medical practioner in the treatment of a patient whereby the health or life of a patient is endangered.
Any want of proper skill or care that causes the patients death, diminishes his chances of recovery, prolongs his illness, or increases his suffering constitutes injury in a legal sense. Dr. Parikh states at page 144 (supra) that it is difficult to justify failure to x-ray a case of injury to bones or joints in which there is a doubt about diagnosis; and such a failure is frequently the basis of a successful plea in an action for negligence. With the increasing use of the ophthalmoscope in diagnosis of condition which are not essentially ocular, failure to use ophthalmoscope or to refer the patient to a specialist may be regarded as negligence. In Martin F. DSouza (supra) the Apex Court has held that the doctor should make his own analysis including the tests and investigations.
Going by the same analogy, we are of the view, that removal of appendix, without doing any tests for differential diagnosis, in a women, by any of the known and available diagnostic tests, such calling for a blood report or a sonography report can be considered as breach of duty, hence negligence or deficiency in service. One of us have certainly lived the days when a doctor did the diagnosis on the basis of feeling the pulse, looking at the tongue and the eyes conjunctiva and rarely by use of stethoscope. Times have changed. Now a number of diagnostic facilities are available at every nook and corner and no operations are done unless clinical observations are confirmed by diagnostic tests. We are therefore of the view that Dr. Surmes advice referring Ravina for removal of the appendix, without any diagnostic tests is nothing but a breach of duty of care and so also it is breach of duty of care on the part of the other two doctors having performed appendectomy or having allowed to perform the same without such tests.
We are clear in our mind considering the totality of facts brought on record that the operation of appendectomy conducted on 3/7/10 was a negative appendectomy.
50. Ravina was re-admitted at Pai hospital by Dr. Surme and Dr. Pai at 8.00 a.m. on 9/7/10 and her problem was not diagnosed.
Ravina thereby lost almost 34 golden hours from 8.00 a.m. of 9/7/10 to about 6.00 p.m. of 10/7/10 and that eventually proved fatal to Ravina, as by then the infection thrived, spread and took control of her organs. Blame is sought to be placed on the parents of Ravina for not getting the sonography done in the morning of 9/7/10. What choice did the parents of Ravina have after Ravina was admitted in Pai hospital? Once admitted, it was entirely the duty of the Hospital or the admitting doctor, either to have taken Ravina to the nearest laboratory for blood tests or for a sonography or call someone, as was done at about 6.00 p.m. on 10/07/10. If Dr. Amonkar was really concerned, as he claimed that he was, at the time of the removal of the appendix, he should have rushed to Pai hospital and taken charge of Ravina because after all Ravina had returned to Pai hospital because the paid medical services provided to Ravina earlier by the OP doctors and Pai hospital were found to be deficient, and, in any event ought to have taken charge of Ravina once Ravina was brought to GMC. It was submitted on behalf of Dr. Amonkar that Dr. Amonkar could not have interfered with the roster. This submission cannot be accepted. Dr. Amonkar was the master of the roster prepared by him, as we are usually accustomed to say. Dr. Amonkar could have informed Dr. Rajesh Patil, as a matter of courtesy, and conducted the exploratory laparotomy by himself or requested Dr. Patil to do the same but Dr. Amonkar, for reasons best known to him, got the laparotomy done through Dr. Amir Ali, a Sr. Resident, inspite of the fact that Dr. Amonkar was otherwise available within a radius of 5 to 7 kilometers, as concluded by the Committee. Dr. Amonkar did indirectly, what he could and should have done directly. Dr. Reshma therefore did not hear anything wrong when she overheard Dr. Amir Ali telling Dr. Patil that the case was operated by Dr. Amonkar. Indeed Dr. Amonkar had done the operation through the hands of Dr. Amri Ali, so to say. In the circumstances of the case all the OPs also failed in their duty of care towards Ravina on 9/7/10 after her admission at 8.00 a.m.
51. The Committee has concluded that Dr. Amonkar performed appendectomy on 3/7/10 for consideration. Didnt Dr. Surme collect Rs. 4000/- from the complainants to be paid as fees to the surgeon?
Has Dr. Surme returned the said Rs. 4000/- to the complainants because Dr. Amonkar did not accept the same? Dr. Amonkar had accepted the assignment of the operation at 10.44 p.m. on 2/7/10, an operation which was to be performed only on the next morning and as such there was no emergency at all. Have we not heard, the doctors telling their patients, in cases where there is no emergency: have a light dinner early and get yourself admitted and they would come in the morning and operate? The case of Ravina was similar to this. The Committee has concluded that Dr. Amonkar performed appendectomy on Ravina on 3/7/10 for consideration and we endorse the said conclusion. If the services of Dr. Amonkar were engaged by Dr. Pai why did Dr. Surme prepare the hospital bill and charge the complainants Rs. 4000/- to be paid to the surgeon Dr. Amonkar and pay only Rs. 2300/- to Dr. Pai as hospital charges, as told by him to the Committee? And why did Dr. Surme contact the anesthetist or tried to contact Dr. Salkar as told by him to the Committee? Dr. Surme admitted before the Committee that he had assisted the surgery. The OPs have not examined Dr. Salkar in support of their case and Dr. Gunjyal has said nothing about he being contacted either on 2/7/10 or 3/7/10, his mobile having been switched off.
52. Ravina was re-admitted at 8.00 a.m. on 9/7/10 and it is then that the duty of care of the OPs started. Dr. Surme and Dr. Pai did not admit Ravina on 9/7/10 to be treated free and the complainants would have certainly made the payment to the hospital in case everything had worked well. The admission on 9/7/10 can be said to be on differed payment basis as contemplated by Section 2(d)(ii) of the C.P. Act. It also could be said that Ravina was brought back on 9/7/10 because the paid services rendered by the OPs were found to be deficient and were required to be rectified by the OPs. Therefore, the OPs now cannot be heard to say that they are not liable to pay any compensation to the complainants because no payment was made by the complainants on re-admission of Ravina on 9/7/10.
53. The Committee has observed, and in our view rightly, that Ravina might have not suffered, if she was referred to GMC immediately after recognizing the gravity of the situation on second admission on 9/7/10. The OPs breached their duty of care on 9/7/10 by admitting Ravina in Pai hospital and keeping her without conducting any tests for full 34 hours, inspite of the fact that Ravina was operated earlier at the same hospital on 3/7/10. The delay of almost 34 hours eventually proved fatal to Ravina as by then the infection took control of Ravina and her organs started collapsing, first the lever, followed by kidneys and followed by lungs. She eventually died due to the said infection Septicaemia
- leading to ARDS. The OPs therefore are liable to pay compensation to the complainants.
53. A. The offshoot of the above discussion is this:
Probabilities of the case clearly suggest that it is the cyst corpus luteum cyst which was mimicking the appendicitis in Ravina. If differential diagnosis was done and clinical diagnosis was confirmed by appropriate tests, prior to 3/7/10, the appendix could have been saved and the cyst could have been treated or excised, and its rupture could have been avoided.
54. The complainants have sought compensation of 2 lacs, in terms of prayer (i) of the complaint without giving any details. The complainants have produced some bills but have not even cared to total the same. The bills produced show an expenditure of about Rs. 31,615/-. It is common knowledge that the treatment in GMC is by and large free, though at times many medicines are required to be purchased by the relatives of the patient, which are not available in the hospital pharmacy.
Complainants have also spent about Rs. 11,800/- towards the bill of Pai hospital. Pai Hospital seems to have only a pharmacy but does not have their own facilities for blood examination, x-ray or ultra sound, etc. It appears that Pai Hospital gets blood reports from whoever is found convenient. We say this because two reports were produced by them. Considering the facts and the circumstances, of the case, in our view, a sum of Rs. 1 lac would be adequate compensation payable under Clause (i) of the complaint.
55. The Apex Court in Dr. Balram Prasad vs. Dr. Kunal Shah & ors. (2013 (4) CPR 284) has held that compensation payable in medical negligence cases can be different from compensation payable in other negligence cases. The complainants appear to be persons of modest means.
Complainants claim that their daughter was a bright student and had a potential to become a professional who could be of assistance at their old age.
OPs contend that Ravina at 17 years ought to have passed XII standard and eventually would have married and gone to her husbands house. She had not even passed IX Std. It is quite possible that as she grew up, she would study harder. It is equally possible that she might stayed as a spinster.
These are imponderables. Pai Hospital also appears to be a very small and modest Hospital. Considering the facts of the case and taking a holistic and broad view of the matter, in our opinion a sum of Rs. 18 lacs shall be just and fair compensation payable to the complainants in terms of prayer
(ii) of the complaint. The complainants are held entitled to a sum of Rs. 10,000/- in terms of prayer (iii). Compensation ordered to be paid herein shall be paid to the complainants within a period of 30 days failing which the same shall carry interest at the rate of 9% thereafter until it is paid. Compensation to be paid by the OP doctors jointly and severally.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto] Member President sp/-
lm/-