State Consumer Disputes Redressal Commission
Dr.P.K.Gopinathan Menon vs N.K.Dayanandan, on 6 July, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/583 (Arisen out of Order Dated 21/06/2011 in Case No. CC/03/984 of District Trissur) 1. DR.GOPINATHAN MENON GOVINDAM,SAKTHAN THAMPURAN NAGR TRISSUR KERALA ...........Appellant(s) Versus 1. N.K.DAYANANDAN NEDUMGATTIL HOUSE,CHEVOOR.P.O,THRISSUR TRISSUR KERALA ...........Respondent(s) BEFORE: SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERAL A STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.583/11
JUDGMENT DATED. 6.7.2012
PRESENT
SHRI.K.CHANDRADAS NADAR -- JUDICIAL MEMBER
Dr.P.K.Gopinathan Menon,
Govindam, Sakthan Tampuran Nagar, -- APPELLANT
Thrissur District.
(By Adv.M.C.Suresh)
Vs.
1. N.K.Dayanandan,
S/o N.K.Kumaran,
Nedumgattil House,
Chevoor P.O, Thrissur - 7. -- RESPONDENTS
2. The Managing Director,
Elite Mission Hospital,
Koorkkenchery P.O,
Thrissur.
3. The Branch Manager,
Oriental Insurance Co.Ltd;
Round West, Thrissur.
(R1 by Adv.Bimal V.S & R3 by
Adv.B.Ashok kumar)
JUDGMENT
SHRI.K.CHANDRADAS NADAR,JUDICIAL MEMBER The appellant was the second opposite party in OP.984/03 in the file of CDRF, Thrissur. The first respondent in this appeal was the complainant. The second respondent is the Managing Director of the Hospital in which the appellant worked as a Doctor. The third respondent is the Insurance Company with which the hospital had professional indemnity coverage. The complainant approached the Forum alleging medical negligence on the part of opposite parties 1 and 2. His case was that he was working at Saudi Arabia from 1988 onwards. During May 2003, he came on leave. He had booked his return ticket to 17.7.03. Meanwhile he felt pain on the right side of his abdomen. He consulted Dr.M.L.Dhathan, Consultant Surgeon, Thrissur on 11.6.03. As per his advice the complainant underwent ultra sound scan which showed the presence of calculus in the right upper ureter. The complainant consulted the second opposite party for further treatment. He explained all the above aspects including the return date to the second opposite party. At first the second opposite party prescribed medicine for two weeks. After two weeks x-ray was taken and after seeing the x-ray the doctor asked the complainant to undergo ureteroscopy for the removal of stone. The Second opposite party assured that he could remove the stone by doing ureteroscopy and the complainant could return abroad on time. So, the complainant agreed for undergoing ureteroscopy. He was admitted in the hospital at 5.7.03 and deposited Rs.5500/- towards expenses. Though the complainant was taken to the operation theatre at 10 a.m; ureteroscopy started only on 5 pm. After the lapse of half an hour second opposite party told the complainant that he should undergo a major operation without any further explanation. In a hurry the second opposite party obtained signatures from the wife of the complainant and his son-in-law. Then the second opposite party removed the right kidney of the complainant by surgery. It was only after a few days the complainant was informed of the removal of the kidney. He was discharged from the hospital on 16.7.03 with an advice to take rest for one month and report for review. The removal of right kidney resulted only due to the utter negligence and carelessness on the part of the second opposite party in applying ureteroscopy into the right ureter of the complainant. Even though, there was scan facilities to know the condition of the ureter and kidney stone in advance, respondents 1 and 2 kept mum why they did not conduct any such previous test.
2. As a result of the negligence on the part of the second opposite party the complainant lost his job in Saudi Arabia and he became a disabled man. He developed hypertension after surgery and there is every possibility of reduced functioning of his existing kidney. He spent a huge amount for his treatment and even now the treatment is continuing. He lost all of his earnings. When notice was issued through the lawyer of the complainant opposite parties 1 and 2 raised untenable contentions. As per the scan report there was no abnormality in the ureter of the complainant. It is not known to the complainant that another doctor Mr.P.G.Antony, West Fort Hospital, Thrissur was called during the surgery. There was no competent doctor in the hospital of the first opposite party to overcome such a complicated situation which would have also resulted in internal bleeding for long time. Thus, there was clear deficiency in service on the part of opposite parties 1 and 2. Hence the complaint.
3. The opposite parties filed separate version. The contentions of opposite parties 1 & 2 are identical. They contended that the complainant came to the second opposite party with complaint of flank pain and USG diagnosis revealed right ureteric calculus and the second opposite party advised the complainant to undergo ureteroscopy (URS) + ESWL (Extra corporeal Shock Wave Lithotripsy) if necessary as the proper method to clear out the calculus. Since the stone in the case of the complainant was small it might not be detected with C-Arm image intensifier and therefore ESWL alone might not be successful. ESWL is an uncertain technique and the patient may have to be subjected to ESWL two or three times. The complainant had no time for repeated ESWL sessions. ESWL results are better if the stone is in the renal pelvis than when the stone is in the ureter. The reasons for preferring URS was two fold ie; either to remove the stone via URS or dislodge it and push it into the renal pelvis for better ESWL results. Due to lack of money for ureteroscopy the complainant initially opted for conservative treatment and hydration and the second opposite party had prescribed proper medication according to the wish of the complainant. He reported after 12 days and x-ray was taken which revealed that the stone was in the same position and impacted. Intravenous Urography was done which again showed the stone in the same position with mild obstruction to right kidney. URS + ESWL if necessary and possible was preferred for the complainant after proper diagnosis and after considering the different treatment options and ureteroscopy was done with due diligence and care. The allegation that the second opposite party assured the complainant that he could remove stone by way of ureteroscopy and the complainant could return abroad on time to join his job is false and denied. The complainant himself opted to get the stone removed by ureteroscopy . The second opposite party conducted ureteroscopy with all aseptic precautions with utmost care and caution. The second opposite party denied the allegation that the complainant was taken to the operation theatre at 10 a.m but ureteroscopy was started only at 5 p.m. It is contended that the complainant was taken to the operation theatre at 3.20 p.m and ureteroscopy procedure started at 3.20 p.m under spinal anaesthesia. Initial Cystoscopy was done and then right bulb ureterogram study of right ureter was done and it was assessed that ureter was narrow. The stone was not seen properly with C-Arm image intensifier due to its small size and overlying bowel shadows and transverse process of vertebrae. The second opposite party had taken precautions and care in advancing the ureteroscope into ureter. He had first done a Retrograde Ureterogram to study the right ureter and ureter was found to be narrow. Then 0.35 GW (guide wire) was indwelled and housed properly in the right ureter and pelvis. Ureteric dilatation was done using dilators. Up to No.7F dilators could be passed into the level of the stone. No.8F dilator could be passed up to L4 level. Therefore No.7F ureteroscope was threaded over the GW so as not to cause injury to ureter and to avoid perforation. It was possible to pass it up to the stone and while getting ready for fragmentation with pneumatic lithotripter with C-Arm imaging, due to irrigant flow the stone migrated into the renal pelvis. Now it was better seen with the C-Arm image intensifier and ESWL could be done after passing a DJ stent. While with all aseptic precaution the second opposite party was gently withdrawing the URS under C-Arm guidance leaving the GW there, unexpectedly avulsion of ureter had occurred probably due to friability. The second opposite party informed the unexpected complication that arose due to avulsion of ureter to the complainant and he agreed to undergo the procedures necessary to overcome the complication. The second opposite party came out side the operation theatre and met Mrs. Dayanandan and her son-in-law and discussed the problem with them and the necessity for an emergency exploration. They were told that whatever possible repair would be tried and if repair was not found possible the kidney may have to be removed as a life saving measure and to prevent further severe complications. They were convinced and gave consent for any life saving procedure. Immediately the second opposite party contacted Dr.P.G.Antony an expert in endo-urology and renal transplant surgery and with his help an uneventful kidney exploration was done under general anaesthesia and the kidney was inspected. It was seen that the ureter had been avulsed from the renal hilum and renal pelvis was also fully torn and there was minimal oozing of blood from the torn renal pelvis. Since the ureter had been torn off the kidney at its hilum level repair work was not safe and would lead usually from one complication to another and with the concurrence of Dr.Antony the second opposite party arrived at the conclusion to conduct simple nephrectomy as the safest procedure to save the complainant. All these facts were clearly and properly informed and explained to the wife and son-in-law of the complainant. The avulsion of ureter was not due to any negligence or carelessness on the part of the second opposite party. Only on exploration it was finally found that no successful and safe repair was possible and nephrectomy had to be done. The allegation that the removal of the complainant's kidney resulted only due to utter negligence and carelessness on the part of the second opposite party in applying ureteroscope into the ureter of the complainant is unfounded and ill motivated. It is not true to say that the complainant lost his job at Saudi Arabia and he became a disabled man. The allegation that hypertension developed after surgery and there is possibility of reduced normal functioning of his existing kidney is also not correct. All necessary precautions and accepted methodology as ordinarily practiced by a qualified urologist in doing ureteroscopy was followed by the second opposite party and avulsion of the ureter occurred in spite of these measures of reasonable caution and can only be due to the abnormal friability of the ureteral tissue in the case of the complainant. There is no negligence or deficiency in service on the part of the second opposite party. The amount claimed in the complaint is highly exaggerated and without any basis. The complainant is not entitled to get any amount from opposite parties 1 & 2 and the complaint was liable to be dismissed.
4. The third opposite party admitted that it has issued a professional indemnity medical establishment policy in the name of the first opposite party for the period from 20.1.03 to 19.4.04.The total limit of indemnity under the policy for any one incident is only up to Rs.2.5 lakhs and total liability for any number of incidents per year is only up to 10 lakhs. If the Forum finds that the third opposite party was liable to pay compensation it should not exceed Rs.2.5 lakhs. It is known to the third opposite party that the kidney was removed as a life saving measure to prevent severe complications. No deficiency in service was committed by the opposite parties. No claim was lodged with the third opposite party regarding the alleged incident. No notice was also sent to the third opposite party.
5. Before the CDRF, Thrissur, the complainant gave oral evidence as PW1. PW2 was a medical expert. Exts.P1 to P7 were marked on the side of the complainant. 2nd opposite party gave oral evidence as RW1. Dr.P.G.Antony referred to in the pleadings was examined as RW2 on the side of the opposite parties. Exts.R1 & R2 were marked on the side of opposite party No.3. Ext.X1 is the patient record relating to the complainant kept in the first opposite party hospital. Ext.X1(a) is the consent obtained from the relatives of the complainant found in Ext. X-1 patient records.
6. The Forum after considering the evidence adduced on both sides came to the conclusion that the second opposite party was careless in applying the ureteroscope which ultimately caused all complications and found the opposite parties liable to pay compensation of Rs.5 lakhs. The liability of the third opposite party was restricted to Rs.2.5 lakhs. The second opposite party was directed to pay Rs.2 lakhs and the first opposite party/hospital was directed to pay Rs.50,000/- of the complainant. The complainant was allowed Rs.1000/- towards costs. In case of failure to pay the amount within 2 months interest at the rate of 12% was ordered to be paid till realization.
7. It was submitted at the time of arguments that the third opposite party had discharged its liability to pay Rs.2.5 lakhs to the complainant. The first opposite party has not preferred any appeal. The second opposite party is challenging the correctness of the conclusions of the CDRF, Thrissur.
8. What transpired in the hospital of the first opposite party, briefly stated is that the complainant was diagnosed to have calculus (stone) in the right ureter. The second opposite party decided to adopt the procedure of ureteroscopy and if necessary ESWL to remove the stone. Accordingly on 5.7.03 ureteroscopy was done after preliminary procedures. Ureteroscope was introduced and when the ureteroscope touched the stone, it migrated in to the pelvis of the kidney. But the ureteroscope got stuck inside the ureter. In the attempt to withdraw the ureteroscope, the ureter got avulsed at the pelvis resulting in the major operation to remove the right kidney as a life saving measure. According to the complainant the ureter got avulsed from the right kidney as a result of negligence on the part of the second opposite party. Negligence and deficiency are found by the forum on 3 counts. Firstly it is found that the second opposite party withdrew the ureteroscope negligently and forcefully. Secondly before proceeding to conduct nephrectomy, the relatives of the complainant were not informed nor was avulsion of ureter at pelvis informed to the relatives. As a result no proper consent was obtained from the relatives of the complainant. Thirdly it is found that since ureter was a narrow one other methods such as surgery ought to have been adopted. Perhaps a 4th ground is to be added based on the arguments advanced that the assistance of a nephrologist is necessary during such surgery. No nephrologist was available in the first opposite party hospital. Though DW2 was summoned, his arrival was at a belated stage.
9. Before examining the correctness of the above conclusions and contentions it would be useful to analysie the evidence available in this case. Ext.P2 is the Ultrasound scan report dated 12.6.03. It revealed that the right kidney showed dilatation of calyces, renal pelvis and upper ureter. A calculus measuring 5.7 mm in length was seen in the right upper ureter. In all respects the left ureter, left kidney etc were normal. The conclusion was that there was Calculus right upper ureter causing mild obstructive changes. Ext.P1 is the discharge summary issued from the first opposite party hospital. The date of discharge was on 16.7.03. It may be mentioned that the second opposite party attempted to treat the patient in a conservative manner initially. It was only on the failure of conservative treatment that the operation was decided upon. The ultimate diagnosis mentioned in the discharge summary is that there was right upper ureteric calculus with mild hydronephrosis and Dyslipidemia. He had clinical history of flank colic 3 weeks duration. H/o Dyslipidemia. The discharge summary contains the details of the surgical procedure followed on 5.7.03. The complainants case appears to be that based on Ext.X1 case records, the discharge summary is issued and there is some manipulation to suit the convenience of opposite parties 1 and 2 in these records. There can be no dispute regarding the course of procedure adopted. But it may be mentioned that in Ext.X1 bearing the date 2.7.03 it is seen written "in view of the patient leaving for KSA right URS is advised." The complainant examined the consultant urologist of Thrissur Medical College in an attempt to establish his case. PW2 holds MBBS, MS (General Surgery) and MCH (Genito Urinary Surgery) degrees with 2 years of post MCH experience. Based on Ext.X1, he deposed that it is a case of avulsion of right ureter from the pelvis of right kidney while conducting ureteroscopy for right ureteric stone. Following avulsion of ureter right Nephrectomy was done. He deposed that in a normal ureter while conducting ureteroscopy avulsion or rupture of ureter may not happen. Most often ureters with stone along with infection will have inflammation or narrowing or fibrosis of uretric tissues. The reason for avulsion that can be gathered from the case sheet is that there was some narrowing of the ureter. No other reason can be gathered from Ext.X1. The size of the ureter can be found out by conducting bulb uretrogram test. To the question that if the ureter is comparatively narrow application of uretroscope will be dangerous to the patient, DW2 answered that with adequate dilation of the ureter there can be uretroscopy even to narrow ureter. It has come out from the evidence of the second opposite party and Ext.X1 records that dilation of ureter with 8F ureteroscope was attempted. It was found difficult to pass the ureteroscope. Therefore 7F ureteroscope was used for ureteroscopy. PW2 stated that this was the standard procedure. Ext.X1 (a) is the consent letter given by the wife and son-in-law of the complainant to conduct nephrectomy. PW2 admitted that from that document it is not seen that the avulsion of the ureter was informed to them. The second opposite party explained, while giving evidence as RW1, that while withdrawing the ureteroscope gently a sudden give way was experienced by them. From that alone avulsion of ureter at pelvis could not have been confirmed. His idea was to avoid nephrectomy and if possible to do the alternative procedures if the ureter had fractured only and not avulsed as happened in this case. The alternative procedures were ileal replacement and auto transplantation. These two alternative procedures were extremely risky procedures and therefore he opted nephrectomy.
10. PW2 deposed further that from X1 (b) Histopathology report , no inflammatory infiltrate to the ureter is seen. But haemorrhage and fibrosis of its wall is seen with narrowing of the lumen. He further deposed that range of narrowing is not reported. To the question that without knowing the range of narrowing nobody can say whether there was abnormal narrowing PW2 answered that one can say roughly whether one portion of the ureter is narrow or not by comparing other portion. The methods to remove a ureteroscope that got stuck in the ureter while withdrawing or conducting ureteroscopy are, open surgery and incision of the ureter at the stuck sight and disengagement of the ureteroscope if possible or else if one portion or one layer of the ureter is telescoped then excision of that segment and further reconstruction if possible. He further deposed that forceful withdrawal of ureteroscope that got stuck in the ureter may result in avulsion of the ureter from the pelvis. PW2 was of the opinion that no experienced doctor would withdraw the ureteroscope forcefully. Every surgical procedure involves certain inherent risks. Nephrectomy was the most safe and best morbid procedure. Further as per Ext.X1 records Nephrectomy was the best procedure adopted by opposite party No.2
11. RW1 is the second opposite party. RW2 is Dr.P.G.Antony who was summoned during the operation. He deposed that because sudden give way was experienced while withdrawing the ureteroscope they suspected avulsion. But the avulsion could not be seen through the ureteroscope. It was confirmed only by open exploration. But that doctors suspected avulsion is not noted in the discharge summary. He also deposed that it cannot be seen from Ext.X1 (a) that suspected avulsion of ureter was informed to the relatives of the patient. Avulsion during withdrawal of ureteroscope can happen as a complication. The reason for occurring avulsion is not mentioned in the case sheet and the avulsion happened before he reached the hospital.
12. The question is whether on the above evidence, the conclusions of CDRF, Thrissur can be supported and if so to what extent. The learned counsel for the appellant relying on the decision of the Hon'ble Supreme Court in Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Others AIR 2010 Supreme Court 1050 contended that when a procedure adopted by the doctor performing surgery is supported by expert opinion, negligence cannot be attributed to him. Medical professionals are not to be unnecessarily harassed or humiliated so that they can perform their duties without fear and apprehension. It is settled law that even a wrong diagnosis need not necessarily be negligent diagnosis. In this case admittedly the diagnosis was fully correct. On finding calculus in the right ureter 3 alternative procedures were available with the doctor. The first one was ureteroscopy done in this case. The second option was ESWL and the third one was surgical removal of the stone. The grievance of the complainant is that when the ureter was found to be narrow ureteroscopy should not have been attempted. But the decision appears to have been taken in the light of the information conveyed by the complainant himself that he had to return to his work place abroad by 17.7.03. The error committed by the second opposite party was that he himself had suggested ureteroscopy. Actually he should have explained to the complainant the advantages and disadvantages of the alternative procedures available and left the matter for the complainant to take a decision. What is seen from Ext.X1 is that the second opposite party suggested ureteroscopy. But ureteroscopy was an accepted surgical procedure available and the second opposite party cannot be found fault with for adopting the same. The surgery itself appears to have been performed quite diligently. It is an admitted case that PW2 was a competent surgeon to perform such procedures. He had taken care to ascertain the width of lumen of the ureter before proceeding with ureteroscopy. When the ureteroscope reached the level where the stone was lodged due to irrigant fluid flow, the stone migrated into the pelvis. The ureteroscope also got stuck inside the ureter. Then 2 options were available as deposed to by PW2. In either case operation was required. But the second opposite party cannot be found fault with for the mere fact that he tried to withdraw the ureteroscope gently, for if that attempt had succeeded surgery itself could have been avoided. I am inclined to accept the argument of the opposite parties, based on the evidence of the PW2 that no experienced surgeon would carelessly withdraw the ureteroscope with force sufficient to avulse the ureter from the kidney. I am also inclined to accept the explanation of opposite parties 1 and 2 that the avulsion of ureter could have been confirmed only on open surgery. Once open surgery was conducted and it was found that ureter was avulsed from the pelvis 3 courses were open to opposite party No.2 to avoid fatal complications to the patient. One was auto transplantation, the second one was ileal replacement and the third one was nephrectomy, performed in this case. The expert witness has explained auto transplantation and ileal replacement procedures which are quite complicated and risky. In that context, the second opposite party opted nephrectomy. I am also inclined to accept the argument of opposite parties 1 and 2 that all these procedures were bonafide adopted by the second opposite party. But there is an error or omission on the part of them in not properly explaining the situation to the relatives of the patient. Not only that suspected avulsion was not disclosed to the relatives they were apparently not apprised of the relative merits and demerits of 3 alternative procedures available. It is true that when the patient was at the operation table, a detailed apprisal in this regard was not possible but to avoid such litigation that is also quite necessary. The hospital authorities also could have ensured the presence of a nephrologist once sudden give way was experienced by RW2 at least, for if alternative procedures were to be adopted such as auto transplantation that could have been done only by a nephrologist and not the second opposite party. But the first opposite party did summon the services of a qualified nephrologist namely RW2. In short negligence as such cannot be attributed to opposite parties 1 and 2 but there was error or omissions on their part in matters other than pertaining to the surgical procedures adopted. To that extent I am inclined to disagree with the conclusions of CDRF, Thrissur.
13. But there may be cases of deficiency in service, even when there is no medical negligence. In short all medical negligent cases involve deficiency in service but the contrary need not be true. As such the findings of the forum will have to be sustained to a limited extent. The forum awarded compensation of Rs.5 lakhs to the complainant. It is pertinent to notice that what is stated in Ext.P1 is that the complainant was employed a manual labourer in KSA. So, the claim that he was having a salary of Rs.20,000/- per month appears to be exaggerated. According to the complainant as a result of removal of the right kidney he has developed hyper tension and his life expectancy is reduced. The development of hypertension may not be attributable to the removal of the right kidney. But its removal is not without other side effects as is evident from the depositions of PW2 and RWs 1 & 2 themselves. So, the complainant lost comforts in life. Yet another aspect to be considered is that the first opposite party has professional indemnity (medical est.) insurance with the third opposite party. Ext.R2 is the medical establishment - professional negligence errors and omissions insurance policy. While the maximum coverage in an individual case is limited to Rs.2.5 lakhs in the indemnity clause it is provided as below.
14. "The indemnity applies only to claims arising out of bodily injury and/or death of the patient caused by or alleged to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by the insured". Certainly the complainant sustained bodily injury and I have indicated that though there is no negligence on the part of opposite parties 1 & 2 there are errors and omissions on their part in not properly advising the complainant regarding the merits and demerits of the procedures he was going to face and having regard to circumstances such as his probable income and the probable difficulties he may face due to the surgery, it is sufficient that compensation is restricted to Rs.2.5 lakhs covered by the insurance already disbursed by the third opposite party.
In view of the conclusions above reached the appeal 583/11 is allowed in part. The compensation allowed by the CDRF, Thrissur in OP.984/03 is reduced to Rs.2.5 lakhs and opposite parties 1 & 2 are exonerated from further liability. In the circumstance of the case, the parties are directed to bear their respective costs.
K.CHANDRADAS NADAR -- JUDICIAL MEMBER SL [ SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER