BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 380 OF 2014 AGAINST C.C.NO.469 OF 2008 DISTRICT CONSUMER FORUM-III HYDERABAD
Between
Apollo Hospital,
Jubilee Hills, rep. by tis General Manager
Hyderabad-500 033
Appellant/opposite party no.2
A N D
- Nagorao S/o Pirajirao Manoorkar
R/o Umri, Umri Taluq,
Nanded District (died per LRs)
- Smt Chandra Bai Nago Rao Manoorkar
W/o late Nago Rao Manoorkar,
Occ: Housewife,
- Kishan Nago Rao Manoorkar
S/o late Nago Rao Manoorkar
Aged 42 years, Occ: Agriculture
- Ramesh Nago Rao Manoorkar
S/o late Nago Rao Manoorkar
Aged 36 years, Occ: Doctor
- Dr.Sreeram Nago Rao Manoorkar
S/o late Nago Rao Manoorkar
Aged 36 years, Occ: Agirculture
All are R/o Manor Post & Mandal
Umri Taluq, Nanded District
Maharashtra State
Respondents/complainants
- Maroti R.Kalyankar
Occ: Medical Practitoner
R/o Hospital at Gnamodiya Factory Area
- ICICI Lombard General Insurance Co.Ltd.,
GS Man Plaza, H.No.6-3-352, 1,2 & 3 Floor
Road No.1, Banjara Hills, Hyderabad-034
Respondents/opposite parties no.1 and 3
Counsel for the Appellant M/s Indus Law Firm
Counsel for the Respondents 1 to 5 Sri P.Subhash
Counsel for the Respodnents 6 & 7 Served
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
FRIDAY THE FIRST DAY OF SEPTEMBER
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the opposite parties aggrieved by the orders of the District Forum-III, Hyderabad dated 14.05.2014 made in CC No.469 of 2008 directing the opposite party no.2 to pay Rs.5,00,000/- towards compensatoin to the complainant no.2 being the wife of the deceased along with costs of Rs.2,000/- and the complainants no.3 to 5 are not entitled to any reliefs as they are not dependents of the deceased complainant no.1. Time for compliances 30 days failing which the amount shall carry interest @ 9% per annum from 01.07.2014 till realization.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief is that, as the complainant suffered with throat pain he approached opposite party no.1 who is an ENT specialist at Nanded for treatment. After the investigation he was of the opinion that the complainant no.1 was suffering with cancer of throat and advised to visit opposite party no.2 for treatment. The opposite party no.2 after extensive investigations advised to operate the throat of the complainant no.1. On the advice, the complainant and the complainant nos.2 to 5 gave consent for the operation of the throat. In the year 1997-98 the specialist doctors of the opposite party no.2 operated the complainant in the hospital of opposite party no.2. After the surgery the complainant no.1 was stayed at hospital for about 3 months. During discharge of the complainant no.1, the opposite party no.1 advised to take regular treatment and periodical check up in the hospital. While so in the year 2006 again the complainant suffered with pain in stomach approached opposite party no.2 and the opposite party after investigations operated the stomach and fixed tube in the lungs instead of stomach. After discharge when he was given meals and other liquid food it goes to lungs which caused serious problem and immediately again got admitted in the opposite party no.2 hospital in emergency ward. Due to the wrong treatment, the right lung f the complainant was totally damaged. Respiratory tract and esophageal tube also damaged. For rectification of the mistake the complainant no.1 has to undergo four operations such as Pharyagocutaneous fistula; esophageal perforation neoneunathorx, Jejunostomy operation, Haemotoma in neck wound and dehiscence of abdominal wound. After these surgeries also the complainant no.1 has to continue the treatment till his life time. Hence, the complaint praying to direct the opposite parties to pay compensation for future treatment of Rs.2,00,000/- and compensation/damages for past and future treatment to ta tune of Rs.6 lakhs. During the pendency of the enquiry the complainant no.1 died on 09.04.2009 and his legal heirs i.e., complainants no.2 to 5 were added as his LRs as per the orders in I.A.No.187/2009 dated 05.08.2009.
4. Opposite party no.1 remained exparte
5. Opposite party no.2 filed written version and resisted the case contending that on 24.03.1997 the complainant was brought to opposite party no.2 hospital with a totally advanced cancer of throat (Hypopharynx) stage IV and was admitted into opposite party no.2’s hospital. After conducting necessary investigations and after discussing with family members including the son of the complainant, who is a doctor and after obtaining informed consent from the patient, Dr.Umanath K.Naayak, Consultant, Head and Neck Oncologist performed major surgery (total laryngectomy and partial pharyngectomy and RND on 25.03.21997. Prior to surgery, the procedure was explained to the family members of the complainant including his son that the chances of permanent cure of this advanced cancer stage IV was in the range of 50% and that 100% assurance of permanent cure cannot be given and that it is not possible even in the best centers of the world. He was given appropriate treatment after surgery and was discharged on 31.03.1997.
6. The complainant developed pharngo-cutuneous fistula and was admitted into the opposite party no.2 hospital on 23.04.1997 for closure of fistula which was done using tongue flap on the same day. Post operatively the complainant was stated to have developed mucus discharge from the wound. Therefore, he was taken for re-exploration on 25.04.1997 and the tongue flat was excised and the fistula was closed using PMMC flap. The neck wound was closed in layers. As the complainant had an eventful postoperative recovery, he was discharged on 29.04.1997 with necessary medical advice. The complainant was again admitted into opposite party no.2 hospital on 13.05.1997 for external radiotherapy and was discharged on 21.06.1997 with necessary medical advice. The complainant was advised to undergo regular endoscopic dilations to prevent the formation of pharyngeal structure i.e. narrowing of food passage and to be on regular follow-up. The complainant came for follow up only for the first two years and thereafter did not turn up.
7. The complainant came to their hospital after nine years on 28.06.2006 with the complaint of difficulty in swallowing. Evaluation of the patient revealed that there was no recurrence of cancer, which is evidently the result of quality treatment received by the complainant in opposite party no.2 hospital. The obstruction to the food passage was due to stricture developed which was due to the complainant not undergoing regular dilation as advised at the time of his discharge from the hospital. Endoscopic evaluation was attempted but scope could not be passed beyond stricture and the complainant was subjected to rigid esophagoscopic dilation under general anesthesia following which the complainant developed esophageal perforation and pyopneumothora. On 29.06.2006 right intercoastals drainage tube was inserted and a feeding jejunostomy was done. Even after one week of conservative treatment esophageal fistula did not close. On 07.07.2006 the fistula was explored in the operation theater under General Anesthesia. Ryle’s tube was passed across the pharyngeal stricture into the stomach and fistula was closed primarily.
8. On the evening of 08.07.2006, the complainant developed hematoma in the wound and required emergency exploration of the wound. There was no active bleed and hematoma was evacuated. Post operatively the fistula persisted and neck wound dehiscence occurred on the patient developed raw area around tracheotomy. On 14.07.2006 the complainant developed dehiscence of abdominal wound. ON 17.07.2006 the raw area in the neck was closed with rotation flap from the local area and abdominal wound was closed and post operatively the abdominal wound healed well and the neck flap took well. The complainant showed gradual improvement. He had very minor fistula in the neck which was expected to heal simultaneously. The complainant was discharged on 21.08.2006. Dr. Umanath K.Nayak was treating the complainant three months back when the complainant look in good health ambulatory and was able to take care of himself and that there was no evidence of cancer recurrence and the complainant was maintaining his nutrition by a feeding tube which was inserted directly to his stomach which was necessary due to the closure of his food pipe.
9. When the complainant was brought to the opposite party no.2 hospital it was clearly explained to him, his family and his doctor son that there was 50% chances of permanent cure of the advanced cancer from which complainant was suffering and cent percent assurance of permanent cure cannot be given. The complainant was charged as per the rates in vogue in the hospital at that time and that the total expenses for the entire treatment at the relevant point of time was around Rs.1.5 lakhs which was reasonable and which was paid without any protest.
10. It is denied by the opposite party no.2 that at the time of fixing the food tube entered into the lungs instead of stomach. The complainant came to the hospital of opposite party no.2 in the month of June 2006 with a complaint of difficulty in swallowing and that this was due to obstruction to the food passage which was caused due to negligence of the complainant in not undergoing regular dilations as advised by the doctors earlier but not otherwise. The attempts made by two gastroenterologists to dilate proved futile as the food passage was completely closed and that the only option open then was to open up and surgically remove the stricture and create a new food pipe, which was declined by the son. The attending surgeon discussed the situation with the doctor son of the complainant who requested the surgeon to attempt to open the stricture under anesthesia in the operation theatre. The doctor son of the complainant was clearly explained that there would be risk of complication and on his acceptance dilate was attempted under anesthesia and it was not possible as the food pipe was completely closed and during the procedure a perforation, that is an abnormal opening was created in the food passage, which is a known complication of endoscopic dilation which was immediately identified and appropriate treatment was given. Utmost care and caution was taken in conducting surgery and in treating the complainant and there was no negligence on the part of the doctors of opposite party no.2 hospital. Hence, the opposite party no.2 prayed to dismiss the complaint.
11. Opposite party no.3 equally resisted the case contending that the complainant did not mention the insurance policy number alleged to be issued to the complainant covering the medi-claim to him. In the entire complaint the complainant did not aver anything about the deficiency of services by the opposite party no.3. In the entire complaint, he only stated about the negligent treatment about opposite parties no.1 and 2. There is no prayer in the complaint seeking relief as against the opposite party no.3. The opposite party no.3 is not a necessary party to the proceedings. It has not issued any policy to the complainant and the question of deficiency of service on the part of the opposite party no.3 does not arise. Hence, the opposite party no.3 prayed for dismissal of the complaint.
12. In proof of the complainants’ case, the complainant no.1 filed his affidavit evidence as PW1 and Dr.Ajit Jejurkar, Asst. Prof., Department of Cardiac Surgeon, NIMS filed his affidavit evidence as PW2 and got Exs.A1 to A18 marked. While on behalf of the opposite parties, Dr.Umanath K.Naayak, Consultant, Head and Neck Oncologist , Apollo Hospital has filed his affidavit evidence as RW1 on behalf of the opposite party no.2 and got Exs.B1 and B2 marked. The opposite party no.3 filed memo stating that the counter filed may be treated as evidence affidavit and no documents have been marked.
13. The District Forum after considering the material available on record, allowed the complaint bearing CC No.469 of 2008 by orders dated 14.05.2014 granting the reliefs, as stated in paragraph No.1, supra.
14. Aggrieved by the said decision, the opposite party no.2 preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It is contended that the District Forum erred in placing reliance on the chief examination affidavit of Dr.Ajit Jejurkar (PW2) to hold medical negligence against the appellant overlooking the fact that PW2 did not subject himself to the cross examination and as such his evidence has to be eschewed and thus the same does not deserve any consideration. PW2 was not present for cross examination and therefore his evidence could not have been made basis for holding against the appellant. The District Forum ought to have seen that the appellant filed written arguments and also medical literature in support of their contention that the displacement of Ryle’s tube from stomach is a known complication of endoscopic dilation. Hence, the appellant prayed to allow the appeal by setting aside the order of the District Forum.
15. Counsel for the appellant and the respondent no.3 who is representing the respondents Nos.1,2, 4 and 5 present in person and were heard. Written arguments of the respondents no.1 to 5 was filed.
16. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief.
17. The case of the complainant that on being referred by opposite party no.1 the complainant no.1 was brought to the opposite party no.2 for the treatment of throat cancer and the specialist doctors of opposite party no.2 hospital have operated the throat of the deceased complainant no.1 and continued the treatment as in-patient for three months. After discharge, in the month of June 2006 the deceased complainant developed problem again in the throat and he was admitted in the opposite party no.2 hospital. The doctors in opposite party no.2 hospital have advised him to undergo operation for insertion of Ryle’s tube in to the stomach for the purpose of taking food. On 27.06.2006 the second operation was conducted by way of endoscopic dilation and Ryle’s tube but in the process the doctors inserted the Ryle’s tube into the lungs instead of stomach and patient was discharged. However, the very next morning when feeding was given through the Ryle’s tube the patient developed severe breathlessness and esophageal perforation and pysopneumothorax. The deceased complainant no.1 immediately admitted in opposite party no.2 hospital on 28.06.2006 for multiple complications and underwent several procedures. The deceased complainant no.1 was discharged on 21.08.2006 and even at the time of discharge the patient had trachea-oesophageal fistula, tracheostomy tube was in situ.
18. On the other hand the opposite party no.2 contended that after the surgery the deceased complainant was advised to undergo regular endoscopic dilatations to prevent the formation of pharyngeal structure and to be on regular follow-up and the deceased complainant came for follow up only for the first two years and thereafter did not turn up. The deceased complainant came to opposite party no.2 hospital after nine years on 28.06.2006 with the complaint of difficulty in swallowing. The obstruction to the food passage was due to stricture developed which was due to the deceased complainant not undergoing regular dilation as advised at the time of his discharge from the hospital. The attempts made by the doctors to dilate proved futile as the food passage was completely closed and that the only option open then was to open up and surgically remove the stricture and create a new food pipe, which was declined by the son. The attending surgeon discussed the situation with the doctor son of the complainant no.1 who requested the surgeon to attempt to open the stricture under anesthesia in the operation theatre. The doctor son of the deceased complainant no.1 was clearly explained that there would be risk of complication and on his acceptance dilation was attempted under anesthesia and it was not possible as the food pipe was completely closed and during the procedure a perforation, that is an abnormal opening was created in the food passage which is known complication of endoscopic dilation which was immediately identified and appropriate treatment was given. Utmost care and caution was taken in conducting surgery and in treating the complainant and there was no negligence on the part of the doctors of opposite party no.2 hospital.
19. The counsel for the appellant/opposite party no.2 would contend that PW2 was not present for cross examination and as such his evidence could not have been made basis for holding against the appellant. Though PW2 was not cross examined but he filed his affidavit on oath and as a doctor and Assistant Professor of Cardiothoracic Surgery of NIMS he stated his opinion after going through documents/records submitted by the complainant. The appellant also not refuted his opinion but objected for not subjecting PW2 to cross examination. Therefore, we are not inclined to accept the contention of the appellant that PW2 evidence cannot be taken into consideration in the absence of cross examination of PW2.
20. Now the basic point for consideration in the present case is, whether there was any negligence on the part of the doctors of opposite party no.2 hospital in conducting second surgery on 27.06.2006. From the facts and circumstances on record, it is made out that following the deceased complainant no.1 second surgery at opposite party no.1 hospital, the complainant still had to undergo several procedures for his further intensive treatment, which gives rise to safe presumption that the patient was in bad condition, after the treatment at opposite party no.2 hospital. There is statement of Dr.Umanath K.Naayak, Consultant Head and Neck Oncologist, Apollo Hospital as the complainant is a case of Hypopharynx, Cancer of throat Stage IV performed major surgery (total laryngectomy and partial pharyngectomy and RND) on 25.03.1997 and was discharged on 21.06.1997 with an advice to undergo regular endoscopic dilations to prevent the formation of pharyngeal structure. After nine years the deceased complainant no.1 came on 28.06.2006 with the complaint of difficulty in swallowing. The attempts made by the doctors to dilate but proved futile as the food passage was completely closed and that the only option then was to open up and surgically remove the stricture dilation was attempted under anesthesia and it was not possible as the food pipe was completely closed and during the procedure a perforation that is an abnormal opening was created in the food passage which is a known complication of endoscopic dilation which was immediately identified and appropriate treatment was given. It means at the time of performing endoscopic dilation by the doctors at opposite party no.2 hospital the Ryle’s tube entered into the chest cavity instead of going into the stomach of the deceased complainant no.1.
21. In nut-shell, the defence taken by the opposite party no.2 is that complication could occur during the procedure performed on the deceased complainant no.1 and hence, the allegation of medical negligence against them was not true. However, this version of the opposite party no.2 stands belied from the facts stated by them in the written version. It has been categorically stated by the opposite party no.2 that after endoscopic dilation i.e., on 27.06.2006, the doctors immediately identified complication and appropriate treatment was given and discharged on the same day. It cannot be believed by any stretch of imagination that if the doctors at opposite partyno.2 hospital immediately identified and appropriate treatment was given, then how he immediately on the next day admitted at opposite party no.2 hospital and underwent several procedures. It is very clear, therefore, that the doctors of opposite party no.2 miserably failed to manage the condition of the deceased complainant no.1, following the endoscopic dilation done by them for the insertion of Ryle’s tube. The subject of medical negligence has been discussed in a number of landmark judgments given by the Hon'ble Supreme Court of India and the National Commission from time to time. Some basic principles in dealing with the cases of medical negligence have been enunciated by the Hon'ble Apex Court in the case "Kusum Sharma &Ors. vs. Batra Hospital & Medical Research Centre &Ors. [(2010) 3 SCC 480]" as follows:-
"I. Negligence is the breach of a duty exercised 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.
II. .............
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
22. In "Jacob Mathew versus State of Punjab &Anr." [(2005) 6 SCC 1], the Hon'ble Apex Court while dealing with negligence as tort referred to the Law of Torts, Ratanlal & Dhirajlal (24th Edn. 2002, edited by Justice G.P. Singh), in which it is noted as follows:-
"Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.....the definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
23. The well-known 'Bolam Test' as stated in Bolam vs. Frien Hospital Management Committee [(1957) 1 WLR 582], has been followed in a number of judgments by the courts in India and abroad. It was stated by Hon'ble Justice Mc Nair in his address to the Jury that a Doctor is not guilty if he has acted in accordance with a practice adopted by a responsible body of medical men skilled in that particular art. However, in the Judgment given in the famous Bolitho case as contained in Bolitho vs. Citi and Hackney Health Authority [(1997) 4 All ER 771], it has been brought out that such body of opinion should have a logical basis and the courts are free to carry out a risk analysis and have a more inquiry approach into the facts and circumstances of the case. In this case, it was stated by Lord Browne - Wilkinson as follows:-
"The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has 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 or 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."
24. Principle of Res Ipsa Loquitur has been elaborately discussed in the case "V. Kishan Rao vs. Nikhil Super Specialty Hospital" [(2010) 5 SCC 513] and it has been observed by the Hon'ble Apex Court as follows:-
"In a case where negligence is evident, the principle of Res Ipsa Loquitur operates and the complainant does not have to prove anything as the thing (Res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to rebel the charge of negligence."
25. In this case, to support the negligence of the doctors of the opposite party no.2 hospital, Dr.Ajit Jejurkar, Asst. Prof., Dept. of Cardiac Surgeons, NIMS Hyderabad has filed his affidavit as PW2 wherein he deposed that the patient had developed esophageal perforation and pyopneumothorax after the procedure. He further deposed that normally, all doctors after passing the Ryle’s tube into stomach confirm it clinically by Auscultation in the epigastric region with passage of air through syringe through Ryle’s tube and also the position of the Ryle’s tube can be confirmed by doing X-ray of abdomen but it appears from the documents that the said methods were not followed by the doctors of Apollo Hospital in this case. He also further deposed that during the procedure there was unnoticed oesophageal perforation, the Ryle’s tube has entered into the Chest Cavity instead of going into the stomach of patient which caused pyopneumothorax and all subsequent complications due to which the patient was hospitalized for prolonged period and finally expired. In the light of evidence of PW 2 whose evidence stands unchallenged, we are in full agreement with the findings of the Dist. Forum that there was negligence on the part of doctors of appellant hospital. The opposite party no.2 admitted that there was negligence but stated that it is a known complication of endoscopic dilation. If the doctors had identified the complication immediately after passing the Ryle’s tube into stomach clinically by Auscultation in the epigastric region with passage of air through syringe through Ryle’s tube the patient could not have undergone further complications and due to which the patient had to be hospitalized for prolonged period.
26. It has been held in a number of landmark judgments made by the Hon'ble Supreme Court of India and this Commission that in the cases involving medical negligence, the standard of care expected from medical professionals has to be that of ordinary persons, possessing ordinary skills, as reported in Jacob Mathew Vs State of Punjab, (2005) 6 SCC 1; their lordships carried out a detailed analysis of the doctrine of negligence in the context of medical profession. They also referred to the principle of res ipsa loquitur in the said case. In the facts and circumstance of the present case also, applying the principle of res ipsa loquitur, it is very clear that the patient was discharged by the opposite party no.2 Hospital, even when his condition was not stable and he had to be admitted almost immediately on the very next day for further treatment. The opposite party no.2 hospital detected, after carrying out certain tests that there was negligence by the doctors, there was unnoticed oesophageal perforation, the Ryle’s tube has entered into the Chest Cavity instead of going into the stomach.
27. In our view, however, Hospital would be even liable when negligence is alleged against consultants. Patient would not know the arrangement between the doctor and the hospital when he is being treated in the Hospital by the doctor concerned. It is settled law that hospital is vicariously liable for the acts of the doctor vide Savita Garg Vs. National Heart Institute, (2004) 8 SSC 56, it was also followed in case of Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 . It is very clear, therefore, that the allegation of medical negligence against the doctors of opposite party no.2 hospital stand amply proved from the evidence on record.
28. Coming to the question of quantum of compensation, the Dist. Forum has awarded an amount of Rs.5,00,000/- towards compensation and Rs.2,000/- towards costs. However, the deceased complainant no.1 is a known patient of Cancer of throat (Hypopharynx) Stage IV and after the surgery had lived for 9 years and if as stated by the opposite party no.2 the deceased complainant no.1 had taken regular endoscopic dilations to prevent the formation of pharyngeal stricture he would not have undergone further complications for which the doctors of opposite party no.2 hospital had to treat the patient. The only negligence on the part of the doctors of the opposite party no.2 hospital was had they confirmed the position of the Ryle’s tube by auscultation in the epigastric region with passage of air through syringe through Ryle’s tube, they could have avoided further complications. Therefore, we are of the considered opinion that the compensation of Rs.5,00,000/- as awarded by the District Forum appears to be on higher side and the same is to be reduced. Hence, compensation of Rs.5,00,000/- is reduced to Rs.3,00,000/- while enhancing the costs of Rs.2,000/- to Rs.5,000/- and the same is reasonable, modest and the same meets ends of justice. The point framed at para no.16 is accordingly answered.
In the result the appeal is allowed in part, modifying the impugned order and directing the appellant/opposite party no.2 to pay a compensation of Rs.3,00,000/- on all counts to the complainant no.2 along with costs of Rs.5,000/-. The complaint against the opposite parties no.1 and 3 is dismissed. There shall be no order as to costs in the appeal. Time for compliance four weeks.
PRESIDENT MEMBER
01.09.2017
