BEFORE THE CIRCUIT BENCH A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT VIJAYAWADA
F.A.No.373 OF 2011 AGAINST C.C.NO 73 OF 2009 DISTRICT FORUM GUNTUR.
Between
Dr.Chebrole Visweswara Rao
CVR Hospital, Institute of Urology
& Nephrology, Behind Pallavi Deluxe
1st Lane, Sambasivapet, Guntur
Appellant/opposite party
A N D
1. Anchula Yugandharachan
S/o A.Veera Bhramachari
School Assistant in English
govt. Project High School,
Sreesailam Dam East,
Sundipenta, Kurnool Dist.
2. Anchula Bharathi Devi
D/o a Veera Bhramachacri
Lingamguntla Colony, 2nd Lane
Behind Z.P.High School,
Narsaraopet, Guntur Dist.
Respondents/complainants
Counsel for the Appellant M/s V.Goursankara Rao
Counsel for the Respondent Sri P.Subba Rao
QUORUM: SMT M.SHREESHA, HON’BLE MEMBER
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER
MONDAY THE TWENTY NINETH DAY OF JUNE
TWO THOUSAND TWELVE
Oral Order (As per Smt M.Shreesha, Hon’ble Member)
***
1. Aggrieved by the order in C.C.No.73 of 2009 on the file of District Forum, Guntur, opposite party preferred this appeal.
2. The brief facts as stated in the complaint are that the complainant’s father approached one Dr.P.N.Dutt on 22.6.2008 as his urine was reddish in colour and he referred him to a nephrologist and on 29.9.2008 the complainant’s father approached the opposite party who conducted all the investigations like blood, urine and ECG and also scanning and suggested surgery for stag horn calculi. The complainant submit that their father was informed that it was a minor surgery and believing the words of the opposite party, they joined their father and opposite party hospital on 1.10.2008 conducted PCNL surgery (Per Cutaneous Nephro Lithotomy). But there was heavy bleeding, the opposite arty stopped his surgery and conducted again on 5.10.2008. A third 3rd PCNL surgery was conducted on 9.10.2008 and the complainant’s father underwent two more surgeries for arrangement of stent on 12.10.2008 and 15.10.2008. ON 19.10.2008 a final surgery was conducted without the consent of a patient and because of post-operative complications the patient went into severe complications stage and on 22.10.2008 the opposite party discharge the patient and advised the complainant to go to Aswini Hospital for better management. The patient was admitted in Aswini Hospital on 22.10.2008 and as there was no improvement in the said hospital decided to shift the patient to higher center and to that effect on 25.10.2008 a discharge summary was also prepared and handed over the complainant. But in the last minute, the complainants were informed of the risk of transportation and the complainants continued the treatment of the patient in Aswinini Hospital itself and the patient died of postoperative septicemia on 29.10.2008.
3. The complainants got issued a legal notice on 10.11.2008 requesting the opposite party to send Xerox copy of all the case sheet together with medicines administered by him. The complainants got issued another notice on 22.1.2009 with interrogatories but the opposite party did not reply to the second notice but sent the case sheet in respect to the first notice. The complainants submit that they have spent an amount of `40,000/- at opposite party hospital, `81,172/- at Aswini Hospital in addition to `30,000/- towards incidental expenses and seek a total compensation of `9 lakh for mental agony for loss of their father due to the negligence of the opposite party.
4. Opposite party filed written version admitting that the complainants father had approached him on 29.9.2008 but denied that he ever informed the patient or his attendants that it is a minor surgery. PCNL surgery was conducted on 5.120.2008 and again on 9.10.2008 but denies that three more surgeries were conducted on 12.10.2008, 15.10.2008 and 19.10.2008 in the name of arrangement of stent. The patient was found to be diabetic had staghorn calculus about 7cm and X-ray in the right renal area radiolucent stone occupying all the calceos (L) NVK and in the light of clinical observations PCNL was advised as it is a latest accepted procedure for fragmentation of kidney stones. On 2.10.2008 PCNL could not be completed as there was bleeding and therefore nephrostomy tube was introduced to drain out the bleeding. After the bleeding subsided PCNL was repeated on 5.10.2008 under spinal anesthesia but still one large fragment in the upper calices was present. ON 9.10.2008 PCNL again done under spinal anesthesia and the patient condition was monitored carefully. Thereafter the patient condition was stable, there were no post-operative complications and after nephrostomy removed on 12.10.2008 there was urine leak. Generally this persist for three days but as the leak was continued DJ Stenting was done under local anesthesia as it is common procedure. Small fragments of stones which usually should pass naturally were seen and they were removed. The general condition of the patient was stable throughout these procedures. On 22.10.2008 the patient was restless and the urine output was 100ml and the patient had lead into sepsis with acute renal failure he was advised to shift for better management to Aswini Hospital for hemodialysis. There is no negligence on behalf of the opposite party and opposite party submits that sepsis is a known complication of any surgery all over the world that he had taken utmost care and cause and the patient was informed each stage, procedure and the risk involved. He has clearly mentioned in the case sheet that his left kidney was not visible on IVP, X-ray film and not in ultra sound report. The bleeding was not due to bleeding tendency and it is an inherent problem in the procedure as the kidney is highly vascular. The patient is a diabetic and PCNL is the only choice as it is a key hole surgery and the patient never had any postoperative complications and fever and was stable till 21.10.2008. It was only on 22.10.2008 that he developed restlessness and was advised to shift for better management and the opposite party submits that there was no negligence on their behalf and that he followed the standard procedure of medical parlance.
5. The District Forum based on the evidence adduced i.e., Exs.A1 to A11 and Exs.B1 and B2 and pleadings putforward allowed the complaint directing the opposite party to pay Rs.3,31,000/- with interest @ 9% per annum together with costs of Rs.2,000/-.
6. Aggrieved by the said order the opposite party preferred this appeal.
7. Though the respondent/complainant filed caveat and Mr.P.Subba Rao, Advocate took notice, however did not appear but was given one week time to file written arguments which they did not chose to file.
8. The brief point that falls for consideration is whether there is any negligence on behalf of the doctor and if the complainant is entitled for the relief sought for?
9. It is the complainants case that their father had approached the opposite party on the advice of one Dr.P.N.Dutt on 29.9.2008 evidenced under Ex.A3 with the problem of reddish colour urine and the doctor had diagnosed as stag horn calculus (right) and left kidney not seen. Ex.A3 which is the case sheet also states that there is 7cm stag horn calculus in the right kidney. Ex.A4 are of the clinical examination reports and the FBS is 160 mg/dl, 114mg/dl, 118mg/dl, 72mg/dl and 74mg/dl between 16.10.2008 and 20.10.2008 which evidences that the complainant was diabetic. Even the subsequent tests report evidence the same. The serum creatine as on 29.9.2008 was 1.4mg/dl within normal limits. It is the complainants case that their father underwent all the investigations of blood, urine and scanning and joined opposite party hospital on 1.10.2008 for minor surgery. PCNL was attempted on 1.10.2008 but was discontinued due to heavy bleeding and opposite party conducted it again on 5.10.2008 and 9.10.2008. It is also the case of the complainants that because of post-operative complications, the patient developed septicemia and acute renal failure and the condition became serious and the opposite party discharged the patient to Aswini Hospital for hemodialysis but the patient condition became worse and he died on 29.10.2008 of sepsis and acute renal failure.
10. The learned counsel for the appellant/opposite party while admitting that the PCNL was discontinued on 1.10.2008 submitted that it was done so because of heavy bleeding and only for the safety of the patient. Stag horn calculus is not a common form and PCNL is a major surgery and takes two or three sittings for completing the removal of the stone. As in the present case admittedly the patient had 7 cm of stag horn calculus which is also evidenced under Ex.A2 case sheet. Ex.A3 also reveals that necessary investigations were done and that the patient had both hypertension and diabetes. Ex.A3 is also reveals that the surgery was done on 5.10.2008 and fragments were removed and once again on 9.10.2008 further fragments were removed. There was leakage of urine on 12.10.2008 nephrostomy was done. On 15.10.2008 DJ stenting was done but the leak did not stop. On 19.10.2008 the appellant/opposite party PCNL was done again and small fragments were removed and DJ stenting was done. On 21.10.2008 the patient was stable with BP 130/90 but thereafter became restless and on 22.10.2008 he was advised to hemodialysis at Aswini Hospital.
11. Ex.A5 is the treatment record of the Aswini Hospital which shows that the right kidney is enlarged with stent type at site and the left kidney small in size and shows echotexture. The discharge summary shows that the patient was admitted in semiconscious state following operation for PCNL with three sittings and the dates it clearly mentioned are 2.10.2008, 5.10.2008 and 9.10.2008. This disproves the contention of the complainants that two more operations were done. We find force in the contention of the appellant doctor that thereafter only DJ stending was done but not PCNL procedures. Though discharge request was made on 25.10.2008 the patient was not discharged and he ultimately died on 29.6.2008 as evidenced under Ex.A6 and the final diagnosis is as follows:
· DM
· HTN
· Urosepsis
· Acute Renal Failure
· Cardio respiratory arrest
12. It is the complainant’s case that it is only because of the negligence of the opposite party that the patient had died and even got issued a legal notice evidence under Ex.A8 and the reply of the appellant vide Ex.A9. The complainant got issued some interrogatories vide Ex.A10 and questioned the appellant about the steps taken to prevent sepsis for PCNL No.1, 2 and 3 and the stenting of 1 and 2 and that there was no blood investigation done, blood, urine, creatine, sodium, potassium and bilirubin and that the doctor visited the patient only on 22.10.2008 but not on 21.10.2008 when the patient was restless. RW1 was also examined in which the doctor deposed stating that high levels of blood, urine and creatine indicate acute renal failure which the reports of the Aswini Hospital indicates but the patient was in his hospital. The patient had normal urine output and therefore only blood sugar was taken from the date admission till discharge as the patient was diabetic. The doctor further deposed that the patient’s general condition was good and he was shown with softness of abdomen, normal BP and urine output and therefore he did not think it necessary to conduct serum creatinine test also and denies that his negligent treatment caused renal failure. We observe from the record that the complainant has not filed any expert evidence to rebut the statement of the doctor that because the patient condition was stable and there was normal urine output, he deems it not necessary to undertake Serum Creatinine test.
13. The learned counsel for the appellant also filed extract of complications of PNL at a Tertiary care Centre and drew our attention to stag horn calculus which abstract reads as follows:
Abstract: Introduction: To evaluate the results and complications of PNL. Methods: Records of 430 patients who underwent PNL in last 5 years were reviewed and analysed. Total 493 PNLs were performed on 449 renal units. Results: Forty two percent of the stones were staghorn. Simultaneous bilateral procedure was done in 18 cases. Thirteen patients had kidneys in anomalous locations (12 Horse-shoe and 1 pelvic kidney). Laparoscopic assisted PNL was performed in 2 cases. The tubeless PNL was performed in 16 cases while in 32 cases small bore nephrostomy drainage was instituted. Ninety patients had residual stone after first PNL (52 underwent relook PNL, 18 ESWL and 20 no intervention). IN 3 cases, conversion was needed to open pyelolithotomy. Major complications included bleeding requiring blood transfusion (38) and angioembolization (15), loss of one renal unit, sepsis (35), hydrothorax requiring chest tube drainage (12) and colonic injury (3). There were three deaths due to bleeding, sepsis and pulmonary edema respective. Six patients requiring angioembolisation had CRF. Three of them were on longstanding indwelling percutaneous nephrostomy tube and associated fungal infection. Angiography in these patients showed pseudoaneurysms well away from the site of intervention giving rise to speculation of superadded fungal aetiology for aneursm. In these cases angioembolisation with amphotericin irrigation effectively controlled the bleed. Conclusions: PNL designated as a minimally invasive procedure carries a significant risk of complications.
14. He also filed literature pertaining to the result of nephrolithomy for staghorn calculus in which it is staged that most common complications are after surgery, fever, urinary tract infections, bleeding and associated sepsis. To reiterate the complainants has not established his case by filing any expert opinion to rebut the contention of the appellant opposite party that bleeding is a common complication of staghorn and that PCNL procedure is done 2 to 3 sittings as in the present case it is a 7 cm staghorn. Ex.A3 case sheet also evidences that left kidney was not visible and was small and that the patient was diabetic and hypertensive and in the first PCNL surgery staghorn was removed, nephrostomy was done. In the second and third sitting staghorn were removed in the 4th surgery DJ stenting was done and the bleeding was not a problem in the further procedures. The normal standard medical procedure for 7 cm staghorn is the PCNL procedure and this was not disputed by the complainants. It is their only case that the opposite party performed several PCNL procedures which led to sepsis whereas the case sheet of the appellant/opposite party shows that it had taken all precautions and three PCNL sittings were done which is a standard procedure for 7 cm staghorn and also has given reasons in the case sheet that DJ stenting also has to be done for the patient as the urine leak was persisted. It is also not the case of the complainants that the patient showed signs of restless before 21.10.2008. The case sheet also evidences that the patient underwent three PCNL plus two stenting procedures and was stable till 21.10.2008. It is also the complainants case that the patient developed septicemia only on 21.10.2008 and was advised for the patient to be shifted to a better hospital for higher management. Therefore we find force in the contention of the appellant doctor that when the condition of the patient was stable he advised only blood test as the patient was diabetic did not advice serum creatine to be tested. Therefore, we do not see any negligence in the light of treatment given by the appellant/opposite party and we rely on the judgment of the Apex Court.
15. We rely on the decision of the Apex court and National Commission, with reference to duties of the doctors to the patients, the National Commission in TARUN THAKORE v. Dr.NOSHIR M.SHROFF in O.P.No.215/2000 dated 24-9-2002 reported in Landmark judgments on Consumer Protection P-410 held as follows:
“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task 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”
16. We also rely on the decision of Apex Court in Kusum Sarma vs. Batra Hospital reported in 2010 Mad. LJ-3-512 in which the Apex Court held that negligence cannot be attributed to a doctor as long as he performs his duties with reasonable skill and competence and exercised the skill as per normal medical parlance. We also rely on the decision of the Apex Court in Vinitha Ashok vs. Lakshmi Hospital reported in 2001 CPJ 797 in which the Apex Court clearly laid down as follows:
“ Thus in large majority of cases, it has been demonstrated that a doctor will be liable for negligence in respect of diagnosis and treatment inspite of a body of professional opinion approving his conduct where it has not been established to the Court’s satisfaction that such opinion relied on is reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the Court would be entitled to hold that the body of opinion is not reasonable or responsible.”
17. In Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors in CIVIL APPEAL NO. 5991 OF 2002 decided on 11.9.2009 the Apex Court held that:
The expert opinion forms an important role in arriving at conclusion.
11) EXPERT OPINION:
The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are:
i) that the expert must be within a recognized field of expertise ii) that the evidence must be based on reliable principles, and 8
iii) that the expert must be qualified in that discipline. [See Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 ed., Cambridge University Press, p.178] 12) Section 45 of the Indian Evidence Act speaks of expert evidence. It reads as under:
45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts. Illustrations (a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant. (c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant.
18. Keeping in view the aforementioned judgments and the material on record which establishes that the doctor has followed normal standard procedures of medical parlance and in the absence of ay expert opinion to prove otherwise we are of the considered view that the complainants have failed to establish any negligence in the line of treatment adopted by the appellant/opposite party. Therefore this appeal deserves to be allowed by setting aside the order of the District Forum.
19. In the result the appeal is allowed by setting aside the order of the District Forum. Consequently, the complaint is dismissed. No costs.
MEMBER
MEMBER
Dt.29.06.2012
KMK*
