BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE                      

Dated this the 5^th May 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT. LAVANYA M. RAI                  : HON’BLE MEMBER

ORDERS IN

C.C.No.51/2011

(Admitted on 25.01.2011)

Mrs. Olivia Periera,

W/o late Mr. Oscar Periera,

Of age 45 years, Willelle Villa,

Gorigudda, Mangalore  575 002.

                                                                      ….. COMPLAINANT

(Advocate for the Complainant: Sri DS)

VERSUS

1. Dr. Leo F Tauro,

    Surgeon,

    Father Mullers Medical College Hospital,

    Kankanady, Mangalore.

2. The Authorised Signatory/Hospital Director,

    Father Mullers Medical College Hospital,

    Kankanady, Mangalore.

                                                                           ….........OPPOSITE PARTIES

(Advocate for the Opposite Parties No.1 & No.2: Sri KSB)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

The complainants husband Mr. Oscar Martin aged 43 years was admitted to opposite party No.2 on 20.8.2010 with complaint of pain and swelling of the right side of testis since past 2 months and had severe pain on the day of the admission. He was provisionally diagnosed as right side epididymoorchitis.  He was also afflicted with fever on 20.8.2010 and a patient of Diabetes Mellitus for the past 2 years.  He had tenderness in the right testis and epididymis appeared bulky.  He was neither casually told or strongly advised by opposite party No.1 to drink plenty of fluid and his scrotum was not supported on a sling made up of broad adhesive tape attached between his thighs resulting in inflamed organ was not made to rest on a pad of cotton wool placed on the sling.  Opposite party No.1 did not try to confirm as to suppuration having occurred on the date of admission itself. Opposite party No.1 had also not intentionally and deliberately warned the deceased patient with regard to atrophy of the testis. There was no advice to the patient to have been kept in the bed until the symptoms abated.  On 21.8.2010 opposite party No.1 referred the case of the patient to Dr. Viola DSouza M.D. to do abdominal ultrasound report which under the impression revealed chronic parenchymal liver disease.  Even after suspecting or diagnosing Epididymoorchitis of the right testis opposite party No.1 did not secure ultrasound report to the scrotum neither on 20.08.2010 nor on 21.08.2010.  Under normal circumstances opposite party did not continue the antibiotic treatment for 15 days or soon after the subsidence of the inflammation as it could be reasonably made out from the hospital records on 21.8.2010 itself when the patient was stable afebrile and when the pain in the scrotum as well as swelling of the scrotum was decreased.  On 23.8.2010 when the plasma glucose level was 104 and was very much within the normal reference range opposite party No.1 did not carry out the incision by ascertaining as to pyococele on 20.8.2010 or 21.8.2010 itself by applying his mind to the primary informations available on epididymoorchitis of the right testis instead after  a considerable delay of 6 days or 4 days after the subsidence of the pain and swelling chose to perform the drainage when the plasma glucose level of the patient was 119 mg /dl and as against the normal reference value 110 mg/dl and the BP  of the patient was 140/90 and FBS 119 as it could be made out from the preanaesthetic review dated 26.8.2010 at 11.30 AM on which day the operation i.e. proposed exploration of the scrotum had been carried out by opposite party No.1.

2.     Subsequent to the aforementioned exploration of the scrotum the deceased patient developed excessive bleeding from the site of surgery and bleeding continued from 2.40 PM on 26.08.2010 upto 9.30 am on 27.8.2010.  On 27.8.2010 at 2.30 PM blood transfusion was done to the deceased patient B+ve blood was given.  On 26.8.10 at 10.30 pm the patient had severe bleeding from the surgery site resulting in bed sheet put on him was drenched in blood.   Subsequent to operation opposite party No.1 assured the complainant as to having cleaned down the wound and having drained out the puss the condition of the patient was normal and told to complainant that the blood test was normal and everything was under control that opposite party No.1 go ahead with the incision.  When complainant as well as her sister in law inquired the concerned doctor of opposite party No.2 and No.1 about the bleeding they did not appraise her as to the cause of the sever bleeding and did not brother to reassure the deceased patient opposite party No.1 did not apprise either the deceased patient or complainant or her sister in law with regard to the day to day progress the line of treatment medicines prescribed and injections administered upon the deceased patient despite their earnest request with the concerned doctors staff nurses of opposite party No.2 and No.1. The hospital records maintained a dignified silence as to the above reflected mandatory as well as cardinal requirements having been complied with duly both by opposite party No.1 and No.2.  On 27.8.2010 fresh frozen plasma 2 units was given to stop bleeding at 10 AM 20 FFP was transfused.  The report indicates the type of request was emergency.  On 28.8.10 at 3.30 pm as seen from the Nurses Record one unit of B+ve FFP blood was given which clearly indicates that the deceased patient having bled profusely from the date of surgery on 26.8.2010 upto 28.8.2010 but the bleeding did not stop despite transfusion of B+ve blood.  On 27.8.2010 deceased patient was subjected to haemodialysis as the condition of the patient started moving from bad to worse.  It is only then opposite party No.1 and No.2 started explaining the condition of the patient from 27.8.2012 12 M.D. on wards and they did not explain the line of treatment given to the deceased patient, medicines prescribed and injections administered upon the deceased.  Despite request made by them when it was stringently and mandatorily required  of opposite party No.1 and No.2 to have reserved the right of giving information as to the prognosis of the deceased patient to the complainant or her mother in law or to sister in law.  The operation procedure I & D being performed as it could from the consent form without having secured the informed consent of the deceased patient on the consent form which is very much is in a general form without adequate information furnished by opposite party No.1 to the deceased.  Opposite party No.1 has neither informed to the deceased patient or the complainant as to substantial risk involved in the operation and the purpose, benefit and alternatives to the patient.  On 28.8.2010 at 8.20 AM the patient started showing the increased respiratory condition and was only responding to verbal stimuli and appeared sluggishness only the condition of the patient as well as poor prognosis was explained to the complainant.   On 28.8.2010 when the deceased patient had a cardiac arrest and BP was not recorded the condition of the patient was explained to the complainant.

3.     On 29.8.2010 at 6.45 AM BP pulse SPO2 of the patient were not recorded his pupils were fixed and dilated as he passed away at 6.45 AM on 29.8.2010 and statedly owing to Right Epididymoorchitis secondary Pyococele, Diabetic Mellitus, septicaemia, acute hepatitis, acute rental failure and hepatic encephalopathy.

4.     Complainant claims the deceased was shifted to MICU the hospital record reveals that the death summary opposite party No.1 has suppressed the material facts intentionally and deliberately that hospital record also reveals that on the advice to shift the patient to MICU on 2.55 PM on 27.8.2010 at 3.45 PM on 27.8.2010 the patient was shifted to MICU at 3.50 PM on 27.8.2010 the deceased patient was received at MICU on a stretcher.  But on the contrary opposite party No.1 has falsely made it appear in the death summary under the course that subsequent to the post operative day 3 the deceased patient having been shifted to MICU.  The Epididymoorchitis of the right testis, fever mild Ascitis which the deceased patient would not have culminated inevitably in his untimely death.  Firstly if the deceased patient had been subjected to the surgery after securing his ultra sound result either on 20.8.2010 or on 21.8.2010 when opposite party No.1 had secured ultrasound of the abdomen and opposite party No.1 were in no way impeded from securing the ultrasound report of the scrotum on 20.08.2010 to ascertain suppuration instead of securing the ultrasound report on 25.8.2010 subsequent to an inordinate delay of 5 days the patient had not been subjected to the surgery when his diabetic condition was not fully controlled and BP was 140/90 and  secondly if surgery which deceased patient was subjected to had been carried out by opposite party No.1 when the condition of the patient was stable on 24.8.2010 thirdly opposite party No.1 had endeavoured on 20.08.2010 to ascertain whether the infection was with suppuration/pus formation or without suppuration either through needle aspiration or through ultra sound examination of the scrotum as the patient was suffering from pain of the epididymis for past 2 months prior to 20.8.2010 when he was admitted to opposite party No.2 hospital.  Further opposite party No.1 could have and ought to have warned the deceased patient or complainant or her mother in law or her sister in law as to the case of deceased being considered the high risk and life threatening one as the deceased patient was also suffering from liver complications and on 26.8.2010 itself they could have prepared or provide the deceased patient the best of the treatment and medical care.

5.     The complainant got issued legal notice on 25.11.2010 to opposite parties towards got issued a reply containing falsely and baseless misleading reply the deceased was husband of complainant was owner of Pereir Inn at Hampanakatta Mangalore and was earning Rs.60,000/ per month whose untimely death has made his wife and childrens life hell and also their situation is virtually hell on earth. The complainants husband had very first day of admission on 20.10.2010 at 9 AM brought the fact that the deceased had undergone treatment in a private hospital about 6 months back as mentioned in the outpatient record of opposite party No.2 hospital.  The mention in the reply to legal notice about detection of jaundice of the deceased patient having been form liver problem and suffering from chronic parenchymal liver disease was never communicated to the complainant as falsely and baselessly averred by the opposite party as the hospital records do not reveal therein anything as such in effect complainant seeks a compensation of Rs.20,00,000/ from opposite parties No.1 and No.2.

II.     Opposite party filed written version in the version opposite parties had admitted the treatment given to complainant husband Mr. Oscar Martin Pereira admitted on 20.8.10 with the history of swelling of the right testis for past 2 months and fever from one day.  The patient had chronic alcoholic and known diabetic on oral medications since 2 years and was treated for liver disease in a private hospital for 6 months acknowledged by the complainant.  On 20.8.10 it was found that patient was infection without suppuration/pus formation.  He was administered required parenteral antibiotics and the line of the management and condition of the same patient had been explained to the patient and the party.  Allegation that patient was administered injection without apprising the patient or his sister or the complainant is incorrect as consent has been taken from S H Menezes, mother in law of the complainant after proper explaining with matter.  On examination of the patient by opposite party No.1 he detected jaundice and ordered for liver function tests, HBsAG and prothrombin time to confirm the same and complainants mother in law was informed about it and the ultrasound of abdomen was required to be carried out for confirmation.   Ultrasound of abdomen revealed that deceased was suffering from Chronic Parenchymal Liver Disease and same was communicated to complainant.  The patient was clearly instructed to take plenty of oral fluids and underwear which is the best way to elevate and make the inflamed organ to rest which is superior to scrotum support on sling as scrotal support has a risk of getting displaced easily.  There was no need to warn the patient regard to the atrophy of testis as it does not occur in epididymo   orchitis due to bacteria and is known only if the patient is suffering from epididymoorchitis secondary to mumps which is not the case in hand.  In fact on 22.8.10 one antibiotic (ciplox) was changed from injectable to oral and also crystalline penicillin was given parenterally as patient had showed the signs of improvement and when required higher antibiotics were administered parenterally as per physician and Nephrologist’s order.   On 23.8.10 patient had improved clinically afebrile pain decreased, swelling decreased and there was no evidence of suppuration/abscess formation.  If there is suppuration patient will have spiking temperature, a severe pain and increased size of the swelling however as seen was not found in the patient incision was not required at the said relevant period of time as such there was no dearth of application of mind by opposite parties as alleged.

2.     On 25.8.10 the patient complained of severe pain of scrotum and opposite party No.1 suspected early advised for scrotal ultrasound and for the higher antibiotics and on 26.8.10 USG scrotum was confirmed Pyocele opposite party No.1 advised for the drainage of pus with the consent of complainant opposite party 1 conducted the same.  After confirming diagnosis prior to incision by aspirating the pus with the help of the needle and syringe, opposite party No.1 proceeded with incision and drainage operation.

3.     On 27.8.2010 opposite party No.1 found patient drowsy and he was suspected septicaemia and was referred to Dr. Roshan, Physician.  Blood investigations showed signs of Septicaemia and Renal derangement.  Immediately at 2.30 PM he was shifted to ICU after explaining to the patient party about the poor prognosis and complications patient was referred to Dr. Prashanth, a Nephrologist, Dr.Raviraj Vittal, a Gastroenterologist.  The patient was also referred to anaesthetist as his breathing was not good.  Shifting the patient to the dialysis room, the patient suffered cardiac arrest.  He was received immediately and once his condition was stabilized haemodialysis was started.  As the patient did not withstand the haemodialysis, he was shifted back to ICU.  Septicaemia is one of the serious health problems which occur in patients having low immune system caused due to multi factorial causes and the mortality in such patients is very high. There is no known mode of preventing possible attack and in spite of best of efforts of the doctors, death due to septicaemia leading cardiac arrest if they also claim all possible care was taken on the patient and the mother in law of the patient were informed the detail under treatment.  Alleged negligence not on the averment that the death summary does not reveal chronic alcoholism is false.  The cause of death stated Right empididymo orchitis with pyocele, acute hepatitis, septicaemia, acute renal failure and hepatic encephalopathy.  Hence seeks dismissal of the complaint.

4.     In the rejoinder filed on behalf of complainant the assertion made in the complaint are repeated.   It is contended that the opposite party have effectively suppressed the objective fact of the complainants husband the deceased patient having trauma suspected on 20.08.2010 for which he was admitted.

5.    In support of the above complaint Mrs. Olivia Periera filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked at Ex.C1 to C50 as detailed in the annexure here below.   On behalf of the opposite parties Dr. Leo F Tauro (RW1) Surgeon, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R2 to R15 as detailed in the annexure here below.   One Mr. Prajith Prabhakar Hegde (RW2), Doctor in Vinaya Hospital, Mangalore summoned witness appeared and produced document marked as Ex.R1 as detailed in the annexure.

III.    In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and whether there is consumer dispute between the parties?
2.  If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

     The learned counsels for both sides filed notes of arguments.  We have considered entire case filed on record including evidence tendered by parties.   Our findings on the points are as under follows:                   

                Point No. (i) : Affirmative

               Point No. (ii) : Negative

               Point No. (iii) : As per the final order.

REASONS

IV.   POINTS No. (i):         Complainants husband Mr. Oscar Martin Pereira aged 43 years was admitted to opposite party No.2 hospital on 20.8.2010 with history of pain and swelling on the right side of testis since 2 months is undisputed.  Opposite party No.1 treated and conducted surgery draining of pus from testis on Oscar Martin Pereira in the hospital of opposite party No.2 is also not in dispute and that the services were on payment basis is not disputed by the parties.  Hence there is a relationship of consumer and service provider between the parties.  The cause of death of Oscar Martin Pereira husband of complainant on 20.8.2010 is attributed by complainant to medical negligence on the part of opposite party No.1 in the hospital of opposite party No.2.  Complainant alleges on various negligence on the part of taking appropriate care expected of surgeon opposite party No.1 and other cares required  in the hospital of opposite party No.2 by opposite party No.1 and opposite party No.2 was not provided in time leading to his death. This aspect of negligence on the part of opposite parties No.1 & No.2 is disputed.  Hence there is a consumer dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.  Hence we answer point No.1 in the affirmative.

Points No. (ii):      Opposite party has claimed that the complainant’s husband the deceased at the time of admission and even complainant or any other relative of the deceased withheld the information that the deceased was a chronic alcoholic and that he had undergone treatment for liver damage prior to admission on 20.8.2010 in the hospital of opposite party No.2 under the care of opposite party No.1.   

2.     Directly referring to the case sheet pertaining to the deceased.  Page No.14 at Ex.R2 case sheet record maintained at opposite party No.2 hospital the admission order mentions to admit on 20.8.2010 the opposite party chit admitted when the deceased approached opposite party No.2 hospital the noting of 20.8.10 reads:

C/o pain and swelling of the Rt side of the

testis since 2 months

pain increases while walking and

R/s-normal vescinela broco

Tr....................etc.,

3.    The case sheet at page 15 of the document dated 20.8.10 at 9.30 hours mentions the Dr. P Shetty for Dr L Tauro is none other than opposite party No.1 mentioned the following:

 s.... scrotal pain x 2 days. Fever x 1 day

? trauma while cycling 15 days back.

DM on OMA x 2 yrs.  Chronic alcoholic

o/c  tender Rt testis

Local raise of temp.

 bulky epididymis. 

 Then various antibiotics medicines were prescribed. 

4.     Ex.C5 is the copy of outpatient record of the deceased dated 20.8.10 at 9 AM by mentions S/B Dr. Priyatham(D.M.O) with following entries:

20/08/2010   S/B Dr. Priyatham (D.M.O)

9:00 AM

     C/o Pain in ® side of Scrotum  2days

         Fever on & Off  2days

For above complaints pt has consulted Dr.Vidhya Sagar General Practioner and received antibiotics & Sedation.  As the pt did not have improvement & has been referred to Fr. Mullers Hospital. Pt is a chronic alcoholic known Diabetic on OHA since 2 years h/o Rx for liver disease in a private hospital about 6 months back.

BP 150/90mm Hg

PR 90 b/m

R.R 18 C/m

Temp 102 F.

Pt conscious, co operative.

Thus on going through Ex.C5 it is clear deceased when approached opposite party hospital did disclose that since 2 years had he is a chronic alcoholic, known diabetic on OHA since 2 years and also history of liver disease treatment in a private hospital about 6 months back.

5.     E.x.C6 is local examination by opposite party of the husband of complainant it mentions:

Local Examination

  Enlarged ® testis with tenderness and local rise of temperature

RS-B/L NVBS (x)

CVS S₁ & S₂

CNS WNL

(IMP:?Epididymoochritis of ® side.

It is requesting for care undue

Dr. Leo F Tauro

Refer to Dr. Leo Tauro.

6.     At Ex.R2 page 94 the which is the Temperature, Pulse and Respiration Chart of the patient showed on admission the temperature of the patient was 98.6 F at 11 AM and it rose to 102 F at 2 PM and then there is entry of it falling down to normal 98.6 F Hence the claim of opposite parties that the patient had normal body temperature and there was no reason suspected infection and pus as pointed out for complainant is not at all correct.

7.     However as rightly pointed out for complainant it was clearly made out by opposite party No.1 at page No.18 of Ex.R2 on 28.8.2010 when the patient was in the ICU in critical condition that for the first time it has informed by the complainant the wife of patient about treatment earlier for cirrhosis in a private hospital few months back. The relevant entries of the entry at case sheet Ex.R2 reads thus:

28/8/2010 S/B Dr. Leo Tauro

12:30        

          Pt has hypotension, not maintaining saturation, Acidotic gasping type of Respiration pt intubated.  Continual test.     

       Sd/                                            sd/

(For Dr. Leo Tauro)                        (wife-Olivia)

Pt present condition, prognosis, complication both expected & unexpected have been explained to the pt party in the language best understood

                                                      Sd/

                                                                   (Dr. Leto Tauro)

As per history given by the patient’s wife, pt was treated for early cirrhosis in a private hospital few months back.

                                                      Sd/

                                                                  (Dr. Leo Tauro)

27.8./10   S/B Dr. P Shetty

2145hrs 

Pt drowsy

Obeying commands.

Vitals PR 112BPM O₂ 100+ on 4L oxygen

          BP-120/70 mmHg

                              Temp-99 c

          Urine output  30 ml/gst 3 hrs

R_x Continue same R_x

28.8.10      Pt is drowsy, Tachypnoeic

8.20 AM     Responding to verbal stimuli-sluggish

                 Urine out put   ed.

             Adv:                 

               As per Nephrologist & Physician advise.

                                                               Sd/

Condition of the pt & poor prognosis explained to the pt’s party. 

Sd/                                                       sd/

Thus from the above it is evident even though as seen from OPD entry Ex.C5 at 20.8.2010 at 9 am of opposite party No.2 hospital there was specific mention of admission of the patient for liver disease in a private  hospital.

8.     It was pointed out for complainant soon after admission when patient had fever and tenderness of right side testis with bulky epididymis as recorded at 9.30 hrs on 20.8.10 at page 15 of Ex.R2 no steps were taken for aspiration of the pus till 26.8.2010.  At page 32 of Ex.R2 we find the Authorization and Consent to operation/procedure signature of the complainant wife and also of the patient and opposite party No.1 and anaesthesiologist. 

9.     At page 37 of Ex.R2 we find the ultrasound of the scrotum dated 25.8.2010 the observations reads:

MR. OSCAR MARTIN PERIERA     43 YRS/M

AKII                   I.P.NO:333486   25.08.2010

             ULTRASOUND OF SCROTUM 

• Testis: Size: 3.5x2.4cm. Normal size and texture
• Epididymis Normal size and echotexture
• Doppler evaluation of testis and epididymis revealed normal vascularity.
• Moderate degree fluid collection with thick debris is seen around normal testis.

Left:

•   Testis 3.8x2.1cm.  Appear normal in shape, size, texture
• Epididymis normal size and echotexture.
• No hydrocele
• No evidence of varicocele.

IMPRESSION: 

• MODERATE DEGREE OF HYDROCELE WITH THICK DEBRIS RIGHT SIDE? PYOCELE

10.     At page 28 in the consultation record of Ex.R2 with heading consultation record there is mention made in the column of referred by Dr. Leo Tauro i.e. opposite party No.1 on dated 20.8.10 and referred to Dr. is shown as Dr. Roshan in the column brief patient particulars it is mentions that the entry made reads Respected Sir, Referring a pt Mr Oscar Martin Pereira c/o Rt epdidimoorchitis, complaint GRBS 239 mg ld K/C/O are kindly examine and opine.

11.     Then in the column Findings, Opinion & Recommendations: dated 20.8.10 the entries mentioned as uncontrolled chronic alcoholic diabetic on OHA presently and admitted with epididymoorchitis RBS 228.

Imp: uncontrolled Diabetic Mellitus, Hepatitis ? alcoholic

There is recommendation of some medication is seen. 

12.     Then at page 30 of Ex.R2 is the consent letter by complainant willingness for Intre batim and ventilator support is recorded. Then at page 31 consent by Mrs. Syra the sister of the patient Mr. Oscar Martin Pereira for MICU care it is without any date. 

13.     At page 43 at Ex.R2 we find the Department of Microbiology report of Oscar Martin Pereira in response of HBsAg Rapid screening test showing Non reactive i.e. test for hepatitis B as nonreactive it is dated 20.8.2010.

14.     At page 46 of Ex.R2 we find the report of Department of Microbiology of opposite party No.2 in respect of Oscar Martin Pereira it is dated 28.8.2010 at 6:13 AM it is investigation report showing HIV Rapid screening test (Spot test) nonreactive, HBsAG Rapid screening test non reactive, HCV Rapid screening test (spot) non reactive. Even at page 47 at 9:34 pm on 28.8.2010 BACTEC 9120 Automated Blood Culture report showed no bacteria isolated in culture after overnight.  At page 48 the blood culture in Bactec Pseudomonas SPP grown result showed resistant to Ampicillin, Amoxyclav, Cefuroxime, Cetriaxone, Co Trimoxazole, Gentamicin, Amikacin, Cefpirome as Resistant and for another drug Ciprofloxacin, Levofloxacin, Piperacillin/Tazobactam, Cefoperazone/Sulbactam shown as sensitive.

15.      At page 49 the investigation of Plasma Glucose Post Prandial report mentions 204 mg/dl reference values  140 mg/dl Glycosylated HbA1c as 5.6% which was within the reference values 4.0.602%.   At page 50 we find the fasting glucose at 130 mg/dl with reference value 70.110 mg/dl.  At page 51 we find plasma glucose fasting 104 mg/dl with reference values at 70.110 mg/dl at an total bilirubin 4.9 mg/dl when the reference values was  1.0 mg/dl.  On 25.8.2010 the plasma glucose fasting is 119 mg/dl in reference range was 70.110 mg/dl at page 52 of Ex.R2.  At page 53 of Ex.R2 the report pertaining to plasma ammonia is shows 123.5 umol/L in the reference range value was 11.0  35.0 umol/L.

16.     The learned counsel for complainant referred to these argued even though on 20.8.10 and 23.8.10 the opposite parties did not take the course for needle aspiration draining pus as the swollen testis but also did not suggest using specifically answer to question No.4 opposite party No.1 falsely mentioned, as rightly pointed out for complainant, patient did not disclose the history of the trauma cycling at the time of admission.  However as mentioned earlier there is specific mention of suffering trauma while cycling 15 days prior to the admission. It is also seen as already quoted for the note as an outpatient as mentioned at Ex.R2 page 15 above there is mention of trauma while cycling 15 days back.  However ? is mentioned at the beginning possibly it indicates as to suspicious nature but it is an information furnished by the patient. It also mentions the tenderness of right testis and also local rise of temperature as already noted from the doctors order and progress notes to the page 15 of Ex.R2.

17.    It was argued for complainant that even though all indicator as to controlling the blood sugar level and also of liver function under control no steps were taken for draining the fluid from the right testis which would have been the best course.  But opposite parties waited till the blood sugar level increase and it was after 6 days of admission only on 26.8.10 draining pus of the right testis to remove the pus was done. This lead to the soaking of the bedsheet of the patient due to bleeding from the wound.  It was also pointed out that no sling was provided on admission to rest the swelling testis.  But case of the defense of advice to wear V shaped underwear was not properly advised as when the patient ought to have advised used of proper slings and should have advised to take sufficient quantity of water and also to take full rest but that was not at all done. As there is no such endorsement in the entire case sheet this argument for the learned counsel is correct.

18.     It was argument of defense on admission on 20.8.2010 there was no necessity for draining the pus as it was started treating with antibiotic as seen at the entry at page 15 of Ex.R2 ciplox and metrogyl and injection clynapar and dolo 650mg and with that treatment there was improvement in the condition of the patient and as such there was no necessity for draining pus. 

19.     Referring to the above said facts learned counsel for complainant argued there is inordinate delay by the opposite parties in not proceeding with the needle aspiration for removal of the pus in the right testis that became fatal to the patient. 

20.     The opposite parties tried to make out that the patient and complainant did not disclosed the previous hospitalisation of the patient Oscar Martin Pereira opposite party in this connection referred at Ex.R1 the admission record of Vinaya Hospital & Research Centre, Karangalpady, Mangalore.   Ex.R1 shows the date of admission of Oscar Martin Pereira on 20.2.10 at 7.55 AM and of discharged on 25.2.10 and the reference record showed C₂H₅OH withdrawal state complaint psychotic feature (Hallucination) there is also mention of withdrawal syndrome of diabetic there was no mention of any liver cirrhosis in this document.  There is also no document produced by opposite parties to show the Oscar Martin Pereiras treatment at any other hospital.  At page 18 of Ex.R2 as quoted above there is entry made by opposite party No.1 about the treatment for the early cirrhosis in the private hospital few months back. However these entries possibly made by opposite party No.1 contains his signature and writing at the same time an opposite party No.1 only but does not contain the signature of complainant the wife of Oscar Martin Pereira. Hence the claim made on behalf of opposite parties that the Oscar Martin Pereira was treated for early cirrhosis in private hospital was disclosed to opposite parties for the 1^st time on 28.08.2010 at 12.30 has no legs to stand. 

21.     We may refer to the medical literature produced by learned counsel for complainant as to Alcohol abuse the learned counsel as referred to the Wikipedia as to what is Alcohol abuse it mentions:

Alcohol abuse is a previous psychiatric diagnosis in which there is recurring harmful use of ethanol despite its negative consequences.

22.     In respect of the Chronic liver disease Wikipedia describes what is mentioned:

Chronic liver disease in the clinical context is a disease process of the liver that involves a process of progressive destruction and regeneration of the liver parenchyma leading to fibrosis and cirrhosis.  Chronic liver disease refers to disease of the liver which lasts over a period of six months.  It consists of a wide range of liver pathologies which include inflammation (chronic hepatitis), liver cirrhosis, and hepatocellular carcinoma.  The entire spectrum need not be experienced.

As the causes for Chronic liver disease it is mentioned that:

The list of conditions associated with chronic liver disease is extensive and can be categorised in the following way:

Viral Causes:

• Hepatitis B
• Hepatitis C

 Cytomegalovirus (CMV), Epstein Barr virus (EBV) and     yellow fever viruses cause acute hepatitis.

Toxic and drugs:

• Alcoholic liver disease
• Rarely drug induced liver disease from methotrexate, amiodarone nitrofurantoin and others

Paracetamol (Acetaminophen) causes acute liver damage.

Metabolic:

• Non alcoholic fatty liver disease
• Haemochromatosis
• Wilsons disease

Autoimmune response causes:

• Primary biliary cholangitis (previously known as primary biliary cirrhosis)
• Primary sclerosing cholangitis

23.     In Medscape on Cirrhosis Imaging it is mentioned in response of overview mentioned as:

 Cirrhosis of the liver is the end stage of a complex process resulting from hepatocyte injury and the response of the liver that leads to partial regeneration and fibrosis of the liver.

Anatomy

Regardless of etiology, gross morphologic changes of cirrhosis are recognized by a variety of image techniques.  Enlargement of the left lobe and caudate lobe, believed to be the result of lobar relative regeneration rather than fibrosis.

24.     The reason why we have to mention these that opposite parties have taken a stand that the complainants husband Oscar Martin Pereira suffering from liver cirrhosis. It is also mentioned metrogyl 500 mg as the treatment on liver cirrhosis. 

25.     In the case on hand the opposite parties have administered paracetamol i.e. Dolo 650 mg commenced on 20.8.10 to Oscar Martin Pereira and the uses of paracetamol 650 mg is shown as it is used in fever, headache, joint pain at page 15 of Ex.R2 at 9.30 hrs of 20.8.10 mentions use of Ciplox 200mg, Metorgyl 500 mg and Dolo 650 mg.  This only is the indicative of opposite parties recognised the patient was suffering from cirrhosis as well as fever and infection at the time of admission itself without that these treatment could not have been administered to the patient. In respect of the dynapar AQ 75 mg 1ml injection administration which is recommended on admission on 20.8.10 at 9.30 hrs the learned counsel for complainant mentions that by referring to the literature for management of acute pain.  In respect of the another injection that was recommended and administered on admission at 9.30 hrs on 20.8.10 of CP 20 lac iv 6 hourly ATD  the learned counsel referred to treatment related guide pertaining to this as in urinal track infection and epididymitis and Bacterial Infection.

26.    Thus as pointed out for complainant opposite parties did diagnosis infection and epididimoorchitis as course of treatment that commenced on admission was for these and also for liver cirrhosis.

27.     As rightly pointed out for complainant the contention of the opposite parties that the patient had early cirrhosis and he was under treatment that prior to the admission to the opposite parties hospital is not at all supported in any documents.

28.     On the other hand it was pointed out for opposite parties that after the antibiotic and other treatment recommended and commenced at 9.30 hrs on 20.8.2010 there was reduction in the pain, reduction in swelling as recorded on 22^nd August 2010 at the page 15 of second page and as such the same medication was continued and stop IV ciplox was advised it is only on 22^nd August 2010 as found at page 16 the right sided scrotal swelling minimal fluctuation and ictere increase in , ofabrail and right scrotal were observe and as to the ? As to the early abscess then advice was made for usage scrotum? epididimoorchitis/abscess there was advise for the stoppage of the ciplox it is with these conditions on 26^th August 2010 for right sided scrotal pyocele I & D at 11.30 am and was done on 26.8.2010 with the noting as pyocele in reduction SA Dr. Radhesh and Dr. Leo Tauro.  At 2.40 pm on the same day there is mention of little soakage from the wound and advised for add extra pad and shift to ward once recovers from S.A.  Then at 10.40 pm on 26.8.2010 there is mention made scrawl leakage at surgical site it mentioned he was afebrile.   It is then onwards at 10.40 pm there is another entry of soakage seen around the right side of the serotum (?) drain in site. 

29.     It was argued for opposite parties by referring to page 55 of Ex.R2 which is biochemistry report of Oscar Martin Pereira it shows at the time of the about 12:00 on 20.08.2010 but it has to be read as noon plasma glucose random show as 228 mg/dl range value as  150/dl and SGOT was 100.0 U/L when reference value is   46 U/L and SGPT 53.0 U/L when reference value is  49 U/L.  As seen this SGOT, SGPT is also showed U/L which is higher than the reference value of less than 49 U/L.   This SGOT is noting Aspartate is one of the two liver enzyme it is also known as serum glutamic oxaloacetic transaminase of SGOT when the liver cells are damaged and the level of the blood becomes normal. Referring to this it was argued for opposite parties that this higher reading of SGOT and SGOPT is indicative of liver damage that was not disclosed to opposite parties.  However the treatment for liver damage was treatment with metrogyl was commenced on 20.08.2010 itself by opposite parties as referred earlier. It is to be noted that complainants patient Oscar Martin Pereira at the time of admission itself was referred to as chronic alcoholic.  Thus from the above one it is certain there is no substance in the entry made on 28.8.2010 at page 18 of Ex.R2 by opposite party No.1 as quoted earlier of the patient Oscar Martin Pereira for earlier cirrhosis treatment in private hospital few months back.  If we may mention that in the OPD entry and also at page 55 of Ex.R2 blood analysis report showed higher level of SGOT and also conjugated Bilirubin at 2.8 mg/dl against reference value of  0.25 mg/dl and of unconjugated of bilirubin at 3.4 mg/dl against value of  0.75 mg/dl the total bilirubin count is also mentioned as 6.2 mg/dl as against reference value of  1.0 mg/dl.  Thus all the precautions required of opposite parts in respect of the higher bilirubin count i.e. jaundice ought to have been taken by opposite parties.  We have already noted that metrogyl 500 mg was administered to the patient on 20.8.2010. 

30.     Learned counsel for complainant referring to the hospital record and detecting of Pseudomonas SSP detected on 30.8.2010 as seen at page 48 of Ex.R2 which was organism isolated Pseudomonas SSP grown could have been detected on 21.08.2010 itself subjecting the deceased patient to blood cultural examination or by subjecting the patient to fluid pus culture on 20.8.2010 itself or on 21.08.2010 it could have helped in early diagnosis and treatment but that was not done and waited for such a test till the end.  Even as pointed for complainant opposite parties were aware when Oscar Martin Pereira came to the OPD not only liver cirrhosis but also i.e. diabetic and alcoholic were are disclosed to opposite parties.  It was argued for complainant the cause of death of the Oscar Martin Pereira was not due to diabetic mellitus or because of infection caused as a result of diabetic condition but not identified the cause as of septicaemia which caused the acute renal failure and multi organ dysfunction as noted in the death summary.

31.     It is to be noted after pyocele incision and drainage (I&D) was done on 26.8.2010 when the blood sugar was high as noted earlier the bleeding did not stop but continued and that subsequently lead to septicaemia.  Even though with starting of antibiotic on 20.8.10 as seen earlier did reduce the fever and other conditions for about 3 day or so it was argued for complainant that presence organism for the swelling of scrotum was not identified and aspiration was not at all done and it was delayed for the reasons not explained.   The learned counsel for complainant in the written argument rightly pointed out that the hospital records does not review any diagnosis finding with regarding to alcoholic hepatitis and liver cirrhosis. In fact there is no record to show the deceased had liver cirrhosis the lab analysis report of 20.8.10 and 28.810 HBs Ag is non reactive it is also correct that the ultrasound report revealed only Chronic Liver Parachymal disease.   

32.     It was contended for opposite parties that the patient was clearly and specifically instructed to have plenty of oral fluid and was orally informed to wear a tight V shaped underwear which is the best way to elevate and make the inflamed organs to rest.  This is superior to scrotum support on sling it as scrotal support has a high risk of getting displaced easily.  It is also mentioned for opposite party that there was no need to warn the patient with regard to the atrophy of testis as it does not occur in epididymoorchitis due to bacteria.  It is known to occur only that patient is suffering from epididymoorchitis secondary to mumps which is not the case on hand. There was no necessity also to take complete bed rest suffice if the patient restrained from the work and patient in the case on hand did not in the hospital.  However the question is not whether the patient was advised for sufficient oral fluid water and to wear V shaped underwear and of informing the patient not carried out in many case there was the swelling of the testis.  It is surprising to know that he was not asked to take rest and if we may say so by referring the testimony of the complainant he was allowed to walk free in corridor of the hospital.  On 21^st August 2010 there is mention made in Doctor Orders and Progress Notes at page 15 Ex.R2 USG Abd Chronic parenchy mal liver disease C Ascites.  On 22^nd August 2010 there is mention made by opposite party No.1 as stable afebrile pain reduced swelling reduced.

33.     As we see from at page 15 of Ex.R2 on 23.8.2010 there is advice by the DRs order to continue same medication and prescribed for the injection beplex Forte.

34.     At Page 16 on 25^th August 2010 in the Doctors Orders and Progress Notes at Ex.R2 there is note made on the advice of opposite party No.1 in the following

S/d

Dr/. Leo Tauro

pts is stable, Icter and it on that day opposite party No.1 fixed NPO from 6 AM on 26.8.2010 there is mention made for posted for right sided scrotal pyocoele I & D at 11.30 am.  On the same day there is mention made by opposite party No.1 right side pyocoele reference done down arrow mark sd/ Dr. Radhesh and above of Dr Leo Tauro.  Again on the same day there is mention made of the little soaking from the wound.  Thus it is clear from the above the noting and orders at Ex.R2 the condition of the Oscar Martin Pereira deteriorated resulting in his death on 28.8.2010. 

35.     Opposite party No.1 in his additional examination in chief of affidavit as RW1 filed on 24.10.2011 mentions these as Type II Diabetic Mellitus with Alcoholic Liver Disease with Delirium Tremors.  

As we find from Ex.R1 there is entry in respect of these sworn facts which opposite party No.1 as sworn as mentioned above.  However we do not find GGT at 1150 U/L (0 to 50 U/L) mentioned at anywhere at Ex.R1. 

36.     The learned counsel for complainant has referred to authority on Management of Ascites in Cirrhosis and Portal Hypertension by J.P. Ahluwalia and D.R. Labrecque wherein the learned authors as to the treatment mentioned:

Attempts of eliminate minor amounts of ascites, detectable only by ultrasound or computed tomography, may produce more complications from the treatment than benefits, and the ascites may be better left alone after its cause has been elucidated.  Large amounts of tense ascites often produce serious consequences, however, including spontaneous bacterial peritonitis (SBP); development of hernias with incarceration or rupture; and impairment of food intake, respiratory function, and physical activity.  Major complications (e.g., variceal bleeding, hepatic encephalopathy, and hepatorenal syndrome) are much more common in patients with severe ascites.  Although not a direct consequence of the ascites, the refractoriness of ascites to medical therapy is an indication of the seriousness of the underlying disease.  Conversely, overaggressive treatment of ascites also can lead to complications, including hyponatremia, hypovolemia, and hepatic encephalopathy. (highlighting by us)

 The learned counsel for complainant referring to the above highlighted portion argued that the treatment were ascites by opposite parties liable to all the complication and instead of draining the pus treating with antibiotic alone and delaying of suppuration lead to septicaemia.

37.     Reference was also made on A Manual on Clinical Surgery by S. Das in respect of fluctuation reference was made to the observation as to waiting failure for the observation of the testis the learned author have observed:

(v) For very large swelling more than 1 finger of each hand are used.  Two or even three fingers may be used for providing pressure (displacing fingers) and palmar aspect of four fingers of the other hand may be used to perceive the movement of displaced fluid. 

38.      In respect of Epididymo orchitis name on patient.co.uk has this to say:

Epididymo orchitis is an inflammation of the epididymis and/or testis.  It is usually due to infection, most commonly from a urine infection or a sexually transmitted infection.  A course of antibiotics will usually clear the infection.  Full recovery is usual.  Complications are uncommon.

39.    In the case on hand the claim of the deceased Oscar Martin Pereira as to the cause of the inflammation of the testis was trauma while cycling.  At page 2 in this article as to uncommon causes of epididymo orchitis the learned author mentioned:

Uncommon causes:

Other viral infections are uncommon causes of epididymo orchitis.  Infection from other parts of the body can, rarely, travel in the blood to the testes, such as tuberculosis (TB) and brucellosis.  When this happens it is usually in people who have a problem with their immune system (for example, people with AIDS).  Schistosomiasis is a tropical infectious disease that can cause epididymo orchitis.  Men with Behcets disease may develop inflamed testes to cause a non infective  epididymo orchitis.  Injury to the scrotum can cause inflammation of the epididymis and testis.

Thus it is seen from the above even the learned author mentions about uncommon causes of inflammation of the epididymis and testis.

40.     Again at page No.3 the same learned author mentions:

What is the treatment for epididymo orchitis?

A course of antibiotics is usually advised as soon as epididymo orchitis is diagnosed.  These normally work well.  Pain usually eases within a few days, but swelling may take a week or so to go down, sometimes longer.  The choice of the antibiotic depends on the underlying cause of the infection.

You may find that supporting underwear helps to ease the pain.  Painkillers and ice packs will also ease the pain.

• An abscess (a collection of pus due to infection) occasionally develops in the scrotum.  This may need a small operation to drain the pus.
• Reduced fertility in the affected testis, especially in cases caused by the mumps virus.
• An ongoing (chronic) inflammation occasionally develops.
• Rarely, serious damage to the testis may occur and result in gangrene (dead tissue) in the testis that needs to be surgically removed.

 Thus distinct aspect that found in the observation of the learned author in the first para quoted above the recommendation course of antibiotics which was used and advised and administered to the Oscar Martin Pereira by opposite parties which resulted in the reduction in the symptom of swelling as well as pain.  In the second part quoted above that also mentions supporting underwear should help to ease the pain.  The complaint made in the present case is as such that underwear are not provided and advised or directed by the opposite party as V type underwear was advised. In the last para quoted above there is advise for a small operation to drain the pus this was performed by opposite party No.1 on Oscar Martin Pereira but the complaint that opposite party had delayed the time when all other parameter on blood sugar etc. were normal.  In the last portion there is also mention as to an epididymo orchitis on occurring chronic developed. 

41.     Then as to Management Guidelines on epididymo orchitis on the aspect of diagnosis it is mentioned as the clinical support from the results of investigations are undertaken.   In respect of management of epididymoorchitis the learned author mentions:

 Management:

• If patient febrile and unwell or may be non compliant, consider admission for bed rest, analgesia, and iv antibiotics.
• Bed rest, scrotal support and analgesics are recommended for all patients.
• No unprotected intercourse until treatment completed and partner(s) tested and treated.

On the under sub heading follow up the learned author mentions if the resolution slow, consider ultrasound to exclude complications or co existing pathology.

42.     Thus on going through this portion as to follow up in the case on hand while the managing on Oscar Martin Pereira the opposite parties did take these precaution or condition mentioned therein of treating with antibiotics when and waited and found improvement in the condition of the patient and it is only after 4 days i.e. on 24.8.2010 that when there was swelling other move that for draining the pus was taken and done on 26.8.2010.

43.     As to the Epididymitis and Epididymo orchitis the literature produced by learned counsel for complainant reads:

 Epididymitis and Epididymo orchitis are usually caused by a bacterial infection.  Infection can result from surgery, the insertion of a catheter into the bladder, or the spread of infections from elsewhere in the urinary tract.  Sometimes, particularly in young men, the cause is a sexually transmitted disease.  Rare causes include infection by certain viruses or fungi.  Sometimes there is no infection of any kind.  In such cases, doctors believe the epididymis becomes inflamed by reverse flow of urine into the epididymis, perhaps because of straining (as when people lift something very heavy).

44.     However as far as the observation therein we are not concerned much as none of the circumstance as enumerated by the learned author was found with deceased Oscar Martin Pereira the patient under consideration. In eMedicine Specialties Critical Care on Septic Shock learned author Michael R Filbin, MD, Clinical Instructor, Department of Emergency Medicine, Massachusetts

General Hospital has this to say on septic shock and Sepsis-induced hypotension reads:

Sepsis induced hypotension (ie, systolic blood pressure 90 mm Hg or a reduction of  40 mm Hg from baseline): This may develop despite adequate fluid resuscitation, along with the presence of perfusion abnormalities that may include acidosis, oliguria, or an acute alteration in mental state.

Septic Shock: A subset of people with severe sepsis develop hypotension despite adequate fluid resuscitation, along with the presence of perfusion abnormalities that may include lactic acidosis, oliguria, or an acute alteration in mental status.  Patients receiving inotropic or vasopressor agents may not be hypotensive by the time that they manifest hypoperfusion abnormalities or organ dysfunction. Multiple organ dysfunction syndrome (MODS): This is the presence of altered organ function in a patient who is acutely ill and in whom homeostasis cannot be maintained without intervention.

The mortality rate of severe sepsis and septic shock is frequently quoted as anywhere from 20.50%.  Given that there is a spectrum of disease from sepsis to severe sepsis to septic shock, mortality varies depending on the degree of illness.  Factors that are consistently associated with increased mortality in sepsis include advanced age, comorbid conditions, and clinical evidence of organ dysfunction.

45.     By referring to the above the observation of the author and that doctors did not drain the pus even though on the date of admission itself the patient had swollen testis and had high temperature and that show that is infection with pus formation but no steps were taken for ultrasound scan of testis and to drain off the pus.  Hence it was argued that there is medical negligence on the part of the opposite parties.  Considering the fact that when seen as per the literature relied upon by learned counsel for complainant, treatment with a situation faced by this patient opposite parties treated with antibiotics leading to improvement in the condition of Oscar Martin Pereira.  Hence opposite parties on this count, in our considered view cannot be found fault with.

46.     Reference was also made on Essential Surgical Practice Third Edition by A. Cushieri and others while referring to Special Methods of Investigating the Liver and Liver Function Test mentions what would be the indicating facts as at page No. 703 and 704 as follows:

Estimation of serum albumin is a good general test of hepatic function, as the liver is the only site of its production.  A level below 25 g/l (2.5g/100ml) indicates that liver function is greatly impaired (in the absence of an obvious source of excessive loss) and, if an operation is essential, only the minimum should be done.  Above 30 g/l (3.0 g/100 ml) is satisfactory and safe.

Plasma prothrombin index, if low, is an indication for preoperative vitamin K therapy.  Where there is little or no response to vitamin K, extensive hepatocellular damage is almost certain.  Owing to large reserves a satisfactory reponse does not exclude considerable liver damage.

5 Nucleotidase and y glutamyl transferase.  The concentration of these enzymes in the blood is not affected by osteoblastic activity and they are therefore of value in determining the origin of a rise in alkaline phosphatase, which may be influenced by bony and intestinal, as well as hepatic, activity.  Y Glutamyl transferase is raised particularly in alcoholic liver disease.

47.     As to L.H. Blumgart on Surgery of the Liver, Biliary Tract, and Pancreas in fourth edition volume 2 while considering Alcoholic Liver Disease observes:

Alcoholic Liver Disease

Excessive alcohol consumption is the leading cause of liver disease in the Western world, which encompasses a clinic pathologic spectrum that includes fatty liver, alcoholic hepatitis, and alcoholic cirrhosis.

48.     Even Lange medical book on Current Medical Diagnosis and Treatment 2011 publication on clinical findings as to symptom and sings in the response of Alcoholic liver disease observed thus:

Clinical Findings

1. Symptoms and Signs

The clinical presentation of alcoholic liver disease can vary from an asymptomatic hepatomegaly to a rapidly fatal acute illness or end-stage cirrhosis.  A recent period of heavy drinking, complaints of anorexia and nausea and the demonstration of hepatomegaly and jaundice strongly suggest the diagnosis.  Abdominal pain and tenderness, splenomegaly, ascites, fever, and encephalopathy may be present.  Infection is common in patients with severe alcoholic hepatitis.

Again learned author observes that:

  Serum bilirubin levels 10 mg/dl and marked prolongation of the prothrombin time ( 6 seconds above control) indicate severe alcoholic hepatitis with a mortality rate as high as 50%.

In the case on hand Oscar Martin Pereira was a chronic alcoholic and afflicted with liver disease chronic parenchymal is undisputed.

49.     In fact in respect of Problem Overview in respect of coagulation abnormalities in patient with liver disease by authors Neeral L Shah, MD and others mentions:

Healthy individuals possess adequate amounts of clotting factors, regulatory proteins, and platelets to achieve optimal clot formation, clot limitation, and dissolution.  Patients with liver disease, on the other hand, over a disturbed balance of procoagulant and anti coagulant factors deviating from the normal coagulation cascade, with little in the way of reserve.

Abnormalities of these coagulation pathways in patients with liver disease will be discussed here.  An overview of coagulation and the clinical use of coagulation tests are presented separately.

Problem Overview Various factors contribute to the abnormalities of coagulation seen in patients with liver disease:

• Increased bleeding risk Decreased production of non endothelial cell derived coagulation factors (eg, factors II, V, VII, IX, X, XI, XIII) is only one
• component of the coagulation process that disrupts hemostasis.  Thrombocytopenia, altered platelet function, platelet inhibition by nitric oxide, abnormalities of fibrinogen, and decreased thrombin activatable fibrinolysis inhibitor (TAFI) all contribute to an increased bleeding risk.

Thus ongoing through it is clear that when there are coagulation abnormalities is seen in patient with liver disease he also mentions about increase bleeding it would appear in the case on hand of Oscar Martin Pereira after draining of pus was undertaken by opposite party No.1 bleeding continued as already seen from the case sheet Ex.R2.   We may also mention that it could be due to the damaged liver and problem of diabetes of deceased.

50.     As to Multiple organ failure, this was due to septicaemia in fact the learned author Baexey & Loves I.D. of surgery 25^th Edition mentions:

Multiple organ failure is defined as two or more failed organ systems.  There is no specific treatment for multiple organ failure.  Management is by supporting organ systems with ventilation, cardiovascular support and haemofiltration/dialysis until there is recovery of organ function.

51.     In the case on hand it is clear that due to septicaemia and multiple organ failure.  In fact learned authors Leber B and others Innate immune dysfunction in acute and chronic liver disease

observes one of the main complication for both acute and chronic liver diseases is infection, which regularly causes decompensation of cirrhosis, possibly leading to organ failure and death.   In the case on hand situation of Oscar Martin Pereira had to septicaemia and multiple organ failure.

52.     In fact learned authors Bonnel AR and Anothers on Immune dysfunction and infections in patients with cirrhosis also mention that Hospitalized patients with cirrhosis have the highest risk of developing infections, especially patients with gastrointestinal haemorrhage.

53.     Thus on going through these various papers on the subject even though opposite party did took the course to treat Oscar Martin Pereira the husband of complainant a known case of Chronic Alcoholic, who was treated for alcoholic withdrawal symptom, whose liver was damaged as noted in the 20.2.2010 hospitalisation seen at Ex.R1 though the opposite party No.1 did follow up the recommendations some of the authors referred earlier by treating him with antibiotics there was reduction on the symptom for 4 days, even though much can be said as to what the doctors could have done and what could not have done.   In the circumstances of this nature the question to be asked to ourselves before concluding is whether the method of treatment adopted by the doctor in question is justified under the given circumstances.  Merely because there were other avenues and line of treatment available in the commentary on the subject as to the illness different authors as we have seen for recommendation for course of treatment there is no ill motive suggested to opposite parties in the treatment on the nature of the treatment adopted.  The one treatment adopted though initially of treatment with the antibiotics resulted in the improvement of the condition of the patient on the right testis, we are of the view doctors cannot be held responsible for taking a particular mode of treatment instead of giving treatment suggested/followed by for not providing of treatment of some other author.    Unfortunately in the case on hand the method adopted by opposite party No.1 on Oscar Martin Pereira did not succeed.  

54.     Learned counsel for opposite parties in (1) 2008 CPJ 354 Himachal Pradesh State Consumer Dispute Redessal Commission, Shimla in Sukhdev Gill vs Rotary Eye Hospital & Ors. In the reported case on medical negligence when at the time of operation when the operation of the eye retina was detached was attributed to the opposite parties when there was no evidence in support to the allegations simple lack of care and accident mentioned as no proof of evidence.

55.     It is none of the case of the complainant that there was intentional negligence on the part of the opposite parties in treating complainants husband Oscar Martin Pereira.

56.      In fact in Delhi State Consumer Disputes Redressal Commission, New Delhi, III (2000) CPJ 558 while considering section 17 /12 of C P Act 1986 while explaining as to what is medical  negligence discussed it is held inter alia:

Held: In order to decide whether negligence is established in any particular case, the alleged act or omission or course of conduct, complained of, must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care.  Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts it.  The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is not done with proper

care and skill.  There is no question of warranty, undertaking or profession of a skill.  The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional with negligence can clear himself if he shows that he acted in accordance with the general and approved practice.  It is not required in discharge of his duty of care that he should use the highest degree of skill, since they may never be acquired,  even deviation from normal professional practice is not necessarily in all cases evidence of negligence.

57.     Thus ongoing through the above and the facts on hand the opposite parties did follow a particular method of treating the patient with antibiotics an approved recognised method of treatment in the given circumstance as considered earlier.   As such merely because that approach resulted in failure is no justification to find fault with the opposite parties as negligence in treating the complainant’s husband Oscar Martin Pereira.  In the circumstance considering that the overall view of the evidence available and the points canvased as complainant’s husband Oscar Martin Pereira who was a known case of chronic alcoholism and history of liver damage when approached opposite party No.2 hospital under the care of opposite party No.1 for treatment with trauma and swelling of the right testis.  When on the line of the treatment with antibiotic commenced dutifully on admission on 20.8.2010 by on the advice of opposite party No.1 and other doctors of opposite parties No.2 resulted in improvement of condition of the patient and detecting  in the symptoms and it is only when the symptom of swelling and then fever increased on 24.8.10 and other methods for treatment was requisitioned by opposite parties merely because the method adopted by opposite party No.1 in the treatment did not succeed in our considered view there is no justification to conclude that there was negligence in treating Oscar Martin Pereira husband of complainant who unfortunately on not only developed septicaemia and hepatitis that resulted in his death at hospital while under care of the opposite parties.  In the circumstances we are of the view that the complainant failed to establish that there was deficiency in service on the part of the opposite parties in administering the treatment and taking care of Oscar Martin Pereira.  Opposite parties cannot be attributed with deficiency in service in treating the complainants husband Oscar Martin Pereira which unfortunately resulted in his death.   Hence we answer point No.2 in the negative.

POINTS No. (iii):            Wherefore the following

ORDER

                            The complaint is dismissed.

        Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 46 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 5^th May 2017)

               MEMBER                                           PRESIDENT

      (LAVANYA M. RAI)                     (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum               D.K. District Consumer Forum

             Mangalore.                                          Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mrs. Olivia Periera

Documents marked on behalf of the Complainant:

Ex.C1: Death Summary

Ex.C2: Admission Discharge Record

Ex.C3: Patient Record

Ex.C4: Outpatient Registration Slip

Ex.C5: Outpatient Record

Ex.C6: Patient Record

Ex.C7: Outpatient Registration Slip

Ex.C8: Outpatient Record

Ex.C9: Bio Chemistry Report dated 25.08.2010

Ex.C10: Bio Chemistry Report dated 27.08.2010

Ex.C11: Bio Chemistry Report dated 28.08.2010

Ex.C12: Bio Chemistry Report dated 20.08.2010

Ex.C13: Haemotology Report dated 20.08.2010

Ex.C14: Bio Chemistry Report dated 27.08.2010

Ex.C15: Haemotology Report dated 21.06.2010

Ex.C16: Haemotology Report dated 26.08.2010

Ex.C17: Haemotology Report dated 27.08.2010

Ex.C18: Haemotology Report dated 28.08.2010

Ex.C19: Haemotology Report dated 27.08.2010

Ex.C20: Haemotology Report dated 28.08.2010

Ex.C21: Haemotology Report dated 29.08.2010

Ex.C22: Blood gas Report

Ex.C23: Blood gas Report dated 28.08.2010

Ex.C24: Cross Matching Report dated 28.08.2010

Ex.C25: Cross Matching Report dated 27.08.2010

Ex.C26: Operation/procedure Report

Ex.C27: Radio diagnosis dated 28.08.2010

Ex.C28: Abdonominal Ultra Sound Report dated 21.08.2010

Ex.C29: Radio diagnosis dated 28.08.2010

Ex.C30: Radio diagnosis dated 28.08.2010

Ex.C31: Lab Investigation Chart dated 28.08.2010

Ex.C32: Urine Analysis Chart dated 20.08.2010

Ex.C33: Department of Microbiology dated 20.08.2010

Ex.C34: Department of Microbiology dated 21.08.2010

Ex.C35: Department of Microbiology dated 26.08.2010

Ex.C36: Department of Microbiology dated 28.08.2010

Ex.C37: Department of Microbiology dated 28.08.2010

Ex.C38: Department of Microbiology dated 30.08.2010

Ex.C39: Department of Microbiology dated 20.08.2010

Ex.C40: Department of Microbiology dated 21.08.2010

Ex.C41: Bio chemistry Report dated 26.08.2010

Ex.C42: Medicine Requisition Form

Ex.C43: Requisition for blood dated 28.08.2010

Ex.C44: Requisition for blood dated 27.08.2010

Ex.C45: Nurses Record

Ex.C46: Communication dated 26.10.2010

Ex.C47: Admission Order

Ex.C48: Legal Notice dated 25.11.2010

Ex.C49: Reply dated 14.12.2010

Ex.C50: Hospital Records of Fr. Mullers

Witnesses examined on behalf of the Opposite Party:

RW1  Dr. Leo F Tauro, Surgeon

RW2  Mr. Prajith Prabhakar Hegde Doctor in Vinaya Hospital

Documents marked on behalf of the Opposite Party:

Ex.R1: Case sheet pertaining to Mr. Oscar Pereira maintained by Vinaya Hospital

Ex.R2: Original Case Sheet of deceased Oscar Martin Pereira Maintained at opposite party hospital

Ex.R3: 28.07.1999 N/c of Certificate in M.S. in General Surgery

Ex.R4: 04.04.1994 N/c of Certificate issued by KMC, Bangalore

Ex.R5: N/c of the Certificate issued at 29^th Annual Conference KSC ASICON 2011        

Ex.R6: N/c of the Certificate issued for IMA Medicon 2010

Ex.R7: N/c of the Certificate of Participation at KSC ASI         

Ex.R8: N/c of the Certificate of the National Workshop Conducted by MCI

Ex.R9: N/c of Certificate issued for SWOCAR CON 2007 Conference

Ex.R10: N/c of the Certificate of Participation in National Update in Color Rectal Surgery

Ex.R11: N/c of the Certificate of Participation in ASICON 2005

Ex.R12: N/c of the Certificate of Participation in 22^nd Annual Conference of ASI KSC

Ex.R13: N/c of the Certificate of Participation in ASICON 2004

Ex.R14: N/c of the Certificate for having attended for Workshop On Critical Care Management

Ex.R15: N/c of the Certificate of Participation in ASICON 2000

Dated: 05.05.2017                                    PRESIDENT