BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
HYDERABAD.
CC of 2011
Between:
1) K. Dasharatham, S/o. Late Narasaiah
Aged about 46 years, Indian
Press Reporter
2) K. Raghuram, S/o. K. Dasharatham
Aged about 23 years, Indian, Student
3) K. Nitheesha, D/o. K. Dasharatham
Aged about 21 years, Indian,
All are R/o. 1-10-186/A
Metpally Post & Mandal-505 325
Karimnagar Dist. -505 325 *** Complainants
And
1) Dr. Hema Raghu Chitneni, MD, DGO
Nitya Emergency & Maternity Hospital
Old State Bank Building
Main Road, Metpally
Karimanagar Dist.
2) Dr, Santhosh Patil
Nitya Emergency & Maternity Hospital
Old State Bank Building
Main Road, Metpally
Karimanagar Dist.
3) Nitya Emergency & Maternity Hospital
Old State Bank Building
Main Road, Metpally, Karimnagar Dist. *** Opposite Parties
Counsel for the Complainants: M/s. V. Gourishankara Rao
Counsel for the Ops : M/s. V. Pattabhi
CORAM:
SRI R.L. NARASIMHA RAO, HON’BLE INCHARGE PRESIDENT
SRI T. ASHO KUMAR, MEMBER
&
S. BHUJANGA RAO, MEMBER
MONDAY, THE DAY OF DECEMBER
TWO THOUSAND THIRTEEN
ORAL ORDER : ( Sri T. Ashok Kumar, Hon’ble Member )
1) This is a complaint filed u/s 17(a)(i) of the Consumer Protection Act for a direction to the Opposite Parties to pay compensation of Rs.50 lakhs towards inconvenience, hardship, mental agony and costs of Rs. 25,000/-.
2) The case of the complainants in brief is that complainant No. 1 is the husband and complainant Nos. 2 & 3 is children of deceased Smt. Sudhamala. When Smt. Sudhamala (hereinafter called the ‘patient’) was suffering from abdomen back pain, menstrual disorder and bleeding she was taken to Tirumala Nursing Home, Metpally on 20.7.2008. CT scan of abdomen disclosed bulky uterus with right overran cyst. Subsequently, she also took treatment at Rainbow Hospital, Hyderabad 2.8.2008 for fibroid uterus. On 27.5.2009 she consulted Dr.Sujatha at Nirmal who advised her to undergo hysterectomy operation for removal of uterus. On 11.6.2009 the patient consulted Op1 at Op3 hospital. After several investigations at 5.00 P.M. On 12.6.2009 Op1 performed hysterectomy operation. One hour after operation, Op1 informed that the patient developed heavy bleeding and suffered cardiac arrest. Prior to admission, the patient had no other complications like B.P. sugar, or heart disease etc. OP.1 advised the complainant No. 1 to shift the patient to Apollo Hospital at Karimnagar for ventilator support and for better management. At the time of shifting, the patient was in a state of unconscious condition. At about 8.00 p.m. on 12.6.2009 the patient was discharged from Op3 hospital and was admitted in Apollo Hospital, Karimnagar at 10.00 p.m. The doctors informed that the patient was already brain dead and in spite of ventilation support and CPR there was no improvement. Therefore, they declared that the patient died at about 2.00 p.m. on 13.6.2009 and Apollo Hospital, Karimnagar issued death certificate stating the cause of death as post total abdominal hysterectomy leading to sudden cardio pulmonary arrest with multiple organ failure. The 1st complainant lodged a criminal complaint against the Opposite Parties with P.S. at Metpally on 13.6.2009 and the case is pending. The complainants allege that lack of care and skill on the part of Op1 in conducting hysterectomy operation resulted in heavy bleeding consequently the patient went into coma and expired. The opposite parties failed to control bleeding and it is not a known complication of hysterectomy. Except uterus problem, the patient had no other complications like B.P., sugar or heart ailment. Had the opposite parties conducted the surgery properly, the patient ought to have survived for several years. Because of injury to blood vessels, the patient developed heavy bleeding. All this had happened only due to lack of care and skill on the part of O.P. No. 1. The patient was aged about 42 years. She used to earn Rs. 10,000/- P.M. by way of tailoring and embroidery work etc. Complainant No. 1 lost his wife and complainant Nos. 2 & 3 lost the love and affection of their mother. The complainants alleged that only on account of improper card and skill on the part of Opposite Parties the patient died.
2) Op1 filed written version on behalf of opposite parties denying the allegations made by the complainant and the gist of the said version is as
complaint is not maintainable in the light of decision of Hon’ble Supreme Court in Martin F.D. Souza vs. Mohd. Isfaq reported in (2009) 3 SCC 1. The patient Smt. Sudhamala was admitted to OP. hospital on 11.6.2009 for hysterectomy operation. Op1 after conducting pre-operative investigations performed surgery on 12.6.2009 at about 5.30 p.m. During operation, they found huge fibroids and explained the risk of proceeding further to complainant No. 1. At about 7.30 PM, the patient had cardiac arrest. Every possible step has been taken to revive the patient as stated in the case sheet and operation notes. As the patient required ventilation support and cardiac management she was shifted to Apollo Hospital, Karimnagar in an ambulance accompanied by Ops 1 & 2. The Expert Committee appointed by the Medical Board vide their report The complainant did not whisper as to what is the alleged negligence or deficiency in service on the part of opposite parties and that the complaint is misconceived. The case sheet reveals that necessary medical and surgical protocol was followed in performing the operation for removal of fibroid in the uterus of the patient. It is unfortunate that during operation, she suffered heart attack and there is nothing to show any negligence or lapses attributable to opposite parties in performing the surgery. The Medical Superintendent, District Head Quarters Hospital, Karimnagar gave their final opinion that the death of patient was due to cardiac arrest. When it has been established by way of medical opinion that there was no negligence attributable to the opposite parties in conducting the operation, the present complaint is not maintainable and liable to be dismissed with costs.
3) Opposite Parties 2 & 3 filed memo adopting the written version of OP.1.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A22 marked while the opposite parties filed their affidavit evidence and no documents were marked on their behalf.
5) The opposite parties filed their replies to the interrogatories submitted by the complainant. The complainant was cross-examined through advocate commission on an application filed by the opposite parties.
6) The opposite parties filed their written arguments.
7) The points that fall for our consideration are:
i) Whether there is any medical negligence on the part of Ops?
ii) Whether the complainants are entitled to any compensation?
iii) If so, to what relief?
8). POINT NO. 1:
The case of the complainant is that due to lack of care and skill on the part the first opposite party hospital in conducting Hysterectomy operation on 12.06.2009 to one Smt. Sudhamala, the wife of first complainant and mother of other complainants it resulted in heavy bleeding and that they failed to control the bleeding and consequently the said patient went into Coma and that she was shifted Apollo Hospital, Karimnagar and in spite of ventilation support and CPR there was no improvement and consequently expired at 2.00 PM on 13.06.2009 at Apollo Hospital, Karimnagar, while undergoing treatment and thus there is professional negligence on the part of the Ops. Whereas the contention of the Ops is that every possible step has been taken to revive the patient detailed in the case sheet and operation notes and that expert committee appointed by medical Board vide its report dt. 17.11.2009 opined that there is no negligence on the part of operating doctor and that the complainants did not establish with any dependable evidence and also expert’s opinion that there was professional negligence on the part of the Ops in treating the said patient and conducting operation and that merely because unfortunately she died it does not mean that the Ops rendered deficient service.
9. Admittedly Ops 1 2 are doctors working in Op. 3 hospital and they are gynecologist and anesthetist respectively. It is not the case of the complainants that said Ops 1 and 2 are not qualified to conduct such an operation and administer anesthesia. On the other hand, Op. 1 is M.D., D.G.O., in the hospital. The material on record discloses that on account of pain in the abdomen back and also on account of menstrual disorder and the bleeding she had consulted Thirumala Nursing Home, Metpally on 20.07.2008 and it was found that she was suffering from Bulky uterus with right ovarian cyst and she also consulted Rainbow children’s hospital, Hyderabad and took necessary treatment. While the things thus stood, after a period of one year i.erd opposite party hospital and after certain investigations she was advised to undergo hysterectomy operation and accordingly on 12.6.2009 OP. 1 performed such an operation on the patient and that OP. 2 administered anesthesia to her for the purpose of the said operation. During the said operation, Op. 1 found that there was bleeding and in such circumstances for better management of the patient advised the complainant no. 1 for shifting her to Apollo Reach Hospital, Karimnagar and it was so done as there was no ventilator facility in the said hospital and when such an emergency arose during the operation the Ops contended that an Ambu bag was used which is a hand-held device used to provide positive pressure ventilation to a patient who is not breathing or who is breathing inadequately and the said aspect has not been seriously contested by the complainants and it shows that the OP hospital has shown concern while shifting the patient to higher centre. Merely because Managing Director of OP.3 Dr. Raghavendra Rao Chipneni did not sit in the ambulance while shifting the patient to Karimnagar it does not mean that they did not evince any interest in the patient while shifting so it is much more so when according to he followed the ambulance to Apollo hospital, Karimnagar in a car. Merely because there has been a death it cannot be inferred that there was professional negligence or deficiency in service on the part of the Opposite parties. Issaq reported in 2009 (3) SCC 1 the Hon’ble Supreme Court of India held that a medical practitioner is not liable to be held negligent simply because things went wrong. The substance Jacob Mathews Vs. State of Punjab and another 2005 (6) SCC (1) and V. Kishan Rao. Vs. Nikhil Super specialty hospital reported in 2010 5 SCC 513 applying Bolam Test is that a doctor is not guilty of negligent if he acted in accordance with a practice as proper by a responsible body of medical men skilled in that particular art and the said decisions have to be kept in mind in appreciating this case. In Kusuma sharma and Vs. Batra Hospital and Medical Research Centre, reported in (3) SCC 480, the Hon’ble Supreme Court of India held that “while deciding the cases of medical negligence as long as the doctors performed their duties and exercised an ordinary degree of professional skill and competence they cannot be held guilty of medical negligence and several principles have been laid down by Hon’ble Supreme Court of India in the said decision.
9. A charge of medical professional negligence is serious when compared with the negligence on the part of driver of a motor vehicle because such a charge against a medical practitioner not only effects his profession but also the reputation therefore burden of proof is heavy in such cases than that of the cases filed against the driver of the motor vehicles. The negligence cannot be presumed but it has to be established with dependable evidence of an expert in the field. Of course, in cases expert’s opinion is not necessary. One of the tests of medical negligence is that something which is required under Medical practice to be done was not done or what was done was contra. If the persons who alleged medical negligence establish the case with required ingredients aforesaid then only, a finding to the effect that the medical practitioner is guilty of professional negligence can be given. In this case, after the death of the complainant , a criminal case against Op.1 and 2 was filed on the complaint of the first complainant vide FIR 162/2009 at P.S. Metpally in Karimnagar District and in connection with the said Criminal Case the concerned police requested D.M.HO Karimnagar, to appoint a committee of doctors to know whether there was any professional negligence on the part of Ops 1 and 2 in conducting such an operation of Cystectomy on the said patient who is now the deceased and then DMHO requested A P Medical Board and accordingly an expert committee consisting of two forensic doctors namely Dr. G. Surender Reddy, Professor and head of the Department of forensic medicine , Gandhi Hospital,. Secunderabad and M. Narayana Reddy, Professor and Head of the Department of Forensic medicine, Osmania General Hospital, Hyderabad was constituted and they submitted Ex. A19 report dt. 17.11.2009 opining that there was no negligence on the part of the operating doctors that is Ops 1 and 2 and that the doctors who discharged the duties are qualified and competent for discharging such duties and that the death of patient appeared to be an inherent non preventable complication of surgical procedure for which the said doctors cannot be accused of criminal negligence and basing on the said opinion of the expert committee of doctors the police closed the investigation referring it as a mistake of fact. It appears that a protest petition has been filed by the complainant in the said context but the Hon’ble High Court of A. P. orders dt. 23. . Criminal petition no. 8882/2013 Stayed proceedings in the protest petition and thereafter the stay order has been extended until further orders till. 25.11.2013 The complainant did not challenge the said version. Admittedly there is no expert evidence from the side of the complainant to prove that Ops rendered deficient service in treating the deceased patient. On the other hand, there is expert opinion in favour of the Ops vide Ex. A-19. As seen from the said report there is specific mention of the medical record perused by them pertaining to various hospitals where the complainant had taken treatment for her ailment including the Ops hospital records and on perusal of the documents mentioned in the said Ex. A-19 expert’s opinion they formed the opinion that Ops doctors cannot be accused of criminal negligence. They were being public servants. There is a presumption in favour the said document that after considering required material only they gave such an opinion and the complainants did not impeach credit of the said document/opinion of the expert by any convincing means, literature and evidence of another expert’s in the field and therefore even though such a report was given for the purpose of criminal case there is no hindrance in accepting and using the said report for the purpose of this case. The complainant admitted that he is aware of contents of Ex. A-19 but further stated that he does not agree with the findings of the experts. He has no knowledge to dispute such findings and as already described supra he did not produce any medical expert’s opinion in support of his contention that Ops rendered deficient service to his wife in conducting such an operation. In such an operation it is common that there would be some bleeding and material on record discloses that only one unit of blood was transfused to the patient and it does not mean that there was profused bleeding.
10. The complainants contended that there is no discussion as to how the expert’s arrived at such a conclusion described in the report and that without verifying any record such a report was given obliging the Ops. Absolutely Ops 1 and 2 who are professors and head of the department working in Government hospital as public servants had no reasons to give a false report favouring the OPs. Merely because the avocation of Ops 1 and 2 is the same or similar as that of the said expert’s it cannot be allowed to be contended that on account of professional affinity it was so given. Because there are several cases, where, medical experts gave reports/evidence against their own professions. A 19 cannot be considered in favour of the Ops could not be appreciated. The Ops have also obtained consent from the patient explaining the risks and it is a known risk also. Ex. A-3 document is ultrasound scan report of the patient when she visited Tirumala Nursing Home on 20th July, 2008 and the said document reveals that the patient had been diagnosed with bulky uterus and right ovarian cyst and there is also admission of first complainant that his wife was complaining severe back pain when she was approached Tirumala Hospital in the month of January, 2008. Ex. A1 and A2 also support the said aspect to the effect that when she had been to Rainbow hospital, the doctors in the said hospital examined her and noted that she was suffering from Urge Incontinence for the last four or five years and Hypomenorrhoea for the last five years and thus there is dependable evidence on record that the patient was suffering from genic problems since before six years she underwent the operation at Op. 3 hospital. According to the Ops, when the operation was being done the complainant no. 1 was called into the theatre by Dr. Raghavendra Rao and that he was shown the huge fibroid and explain the risk of proceeding further for which he accepted and probably for the said reason no separate consent was taken from the complainant no. 1 but already described supra there is consent from the deceased patient. Normally, one will not be allowed into the operation theatre but in the present case and more particularly it appears that since the first complainant is the press reporter as an abundant precaution he was called into the theatre and explained the risk for which he accepted. Therefore no fault can be with the Ops in the said context. In detail, in the medical record marked on their behalf the Ops described stage wise treatment given to the deceased and also maintained requisite notes.
11. OP. 3 hospital is not a charitable institution to say that it rendered free service. Sometimes hospitals will not give receipts for payments and the patients also will not insist for receipts as they would be in anxiety to undergo treatment or operation. Therefore merely because Ops did not issue any receipt for payment it does not mean that they rendered free service. Even otherwise, rendering free of service to some patients and services on payment to others both types of services fall within the ambit of service U/s 2(1)(o) of C P Act and even assuming that the complainants did not pay any amounts towards fee to Ops on the said ground they cannot escape from their liability. Therefore, the contention of the Ops in the said context could not be appreciated.
12. None of the documents exhibited by the complainant clinchingly establish that Ops rendered deficient service while conducting operation to the deceased patient and that the death was a direct result of the action or inaction of the Ops to hold that they were negligent in treating the patient or conducting the operation so as to make them liable to answer the claim of the complainants and there is no expert’s opinion on their behalf. On the other hand, there is expert’s Committee opinion in favour of the Ops. The decisions described supra in this case supports the Ops and further a decision reported 2009 SCC (4) 705 between INS Malhotra (MS) Vs. Dr. A. Kripalani and others it was held by Hon’ble Apex Court of India that unless negligence of doctor is established primary liability cannot be fastened on him and in this case no such negligence of the doctor is established with required ingredients and in view of the above discussion point no. 1 is decided against the complainants and in favour of the opposite parties holding that there is no professional negligence on the part of the opposite parties in treating the patient.
13. Point No. In view of the finding against the complainants Point No. 2 is also decided against the complainants holding that they are not entitle for any compensation and the complaint is liable to be dismissed.
14. In the result, the complaint is dismissed but without costs.
INCHARGE PRESIDENT MEMBER MEMBER
