Appeared at the time of arguments: For the MIOT Hospital : Mr. Manuraj S. Advocate with Ms. Vadhana Bhaskar , Advocate and Mr. Sachin S., Advocate with Dr. Maran, Surgeon Dr. Anupama (Pathologist) For B. Suvarama Phani : Mr. Gurudatta Ankolkar, Advocate and Mr. C. Kannan, Advocate and Mr. T.P. Vipin, Advocate Pronounced on: 9th February 2023 ORDER DR. S. M. KANTIKAR, PRESIDING MEMBER 1. This common order shall decide both the Appeals filed under section 19 of the Consumer Protection Act, 1986 (in short “the Act”). Those Appeals were filed against the Order dated 08.10.2012 passed by the State Consumer Disputes Redressal Commission, Tamil Nadu (hereinafter referred to as the “State Commission”) in Consumer Complaint No. 26 of 2008, wherein the State Commission partly allowed the Complaint and directed the OPs No. 1 & 2 to pay Rs.35 lacs jointly and severally and sum of Rs. 5 Lac for mental agony and Rs.10,000/- towards cost. 2. For the convenience the parties are referred to as stated in the original complaint before the State Commission. 3. Brief facts are that the Complainant Smt. B. Suvarama Phani’s husband B.V. Ramana Rao, aged 46 years (hereinafter referred to as the ‘patient’) underwent ‘Master Health Check-Up’ at MIOT Hospital in Chennai (OP-1). Since there was 8 kg weight loss he was advised to take a CT Scan of the abdomen on 10.04.2007. The CT Scan got done and after the procedure he became unconscious, his BP was low due to alleged reaction to CT contrast injection. Immediately, he was shifted to Intensive care unit (ICU). The C.T. Scan showed signs of mild enlargement of liver and spleen i.e. Hepto-splenonomegaly. Dr. Maran the Gastroenterologist (OP-2) told that he would be alright within 15 days. The patient due to rapid weight loss did not join his work. Dr. Maran advised the patient to undergo test for TB and on 10.04.2007, Chest X-ray was taken. It revealed scanty fluid in the lungs. However, after few days, on 21.04.2007 OP-2 told that TB was suspected. Thus it was alleged delayed diagnosis from OP-2. As advised by the OP-2, the Complainant and her husband met Pulmonologist Dr. Vigil Rahulan. He advised the patient to undergo laparoscopy from OP-2 to rule out TB or lymphoma. The OP-2 performed laparoscopic procedure at 11 am on 24.04.2007, but at around 12pm, he told about anesthesia problem to the patient. Thereafter, at 1.00 pm, the patient was shifted to ICU. It was alleged that the patient was looking very weak and unable to take food also. According to the OP-2, the biopsy report was advanced TB, but it was not disclosed to the patient or the attendants. It amounts to unfair trade practice. 4. On 26.04.2007, at about 5 am, the patient condition became worse and he was put on ventilator at 7 am after the consent from the Complainant. It was alleged that the OP-2 told the Complainant at 9.00 am that her husband suffered Extensive Hyperplasic Tuberculosis and developed ‘Septicemia’; therefore, he was shifted to ICCU in coma stage. There was no TB Specialist in their MIOT hospital, the Complainant requested the doctors to call for the TB Specialist, but no avail. The patient died on the next day i.e. on 27.04.2007. 5. The Complainant alleged that, instead of laparoscopy, the OP-2 performed laparotomy. It was not revealed till the death of patient. The laparotomy ought not to have been done as the patient’s condition was very weak. The perforation of intestine was due to negligence of OPs which caused septicemia and death. Being aggrieved the Complainant filed Consumer Complaint No. 26/2008 before State Commission and prayed for Rs. 90 lakh towards compensation for the negligence, mental agony and damages. 6. The OPs - 1 and 2 filed their written version and denied any negligence during the treatment. It was submitted that the OP-2 had wide experience in laparoscopic surgery, trained in Switzerland. He treated the instant patient as per the standard procedure. The OP-3 was proceeded against ex parte. 7. After hearing the averments of both the parties, the State Commission held the OPs - 1 & 2 liable for medical negligence and partly allowed the complaint with following observations: “The Opposite Parties have not done the investigation and the diagnostic procedure with reasonable care and diligence and there has been delayed diagnosis, gross negligence and serious deficiency in service on the part of the Opposite Parties 1 & 2 which caused the death of the Complainant’s husband. The OP-3 (The Medical Council of India) is an unnecessary party in the Complaint and that there is no negligence or deficiency in service on their part, and the point is answered accordingly. In the result, the complaint is dismissed as against the 3rd Opposite Party and the Complaint is partly allowed as against the 1st and 2nd Opposite Parties, directing the Opposite Parties 1&2 to pay jointly and severally a sum of Rs. 35 lac (Rupees Thirty Five Lac only) to the Complainant for the gross negligence and deficiency in service on their part and sum of Rs.5 Lac (Rupees Five Lac only) for mental agony (Rupees Forty Lac in total); and cost of Rs.10,000/- *(Rupees Ten Thousand only) to be paid by the Opposite Parties 1&2 to the Complainant. Time for compliance, three months from the date of receipt of this order and in case of default, the amount shall carry interest at the rate of 9% p.a. from the date of default till realization”. 8. Being aggrieved with the Order of the State Commission, the Complainant and Opposite Parties (OP-1 & 2) have challenged the impugned Order. The First Appeal No. 131 of 2013 was filed for enhancement of compensation by the Complainant whereases another First Appeal No. 692 of 2013 was filed by the OPs for dismissal of Complaint. 9. Heard the arguments from the learned counsel on both the sides. The learned counsel for OPs submitted that in absence of any expert evidence the State Commission wrongly held the OPs liable for negligence. In fact the Complainant withdrew her application to examine an expert witness under pretext of no negligence. After discharge from hospital, the patient should have been brought back immediately to hospital, but he came after 10 days, which worsened the condition. During laparoscopy it was difficult to take biopsy through the small opening; therefore laparotomy was performed to get mesenteric node biopsy. The Counsel further argued that non-availability of TB expert in the hospital in itself does not amount to medical negligence. The allergic reaction to the CT contrast was immediately treated with anti-allergic drugs and the hospital authority was not duty bound to apprehend the patient’s allergy. The OP-2 possesses best professional skills and experience in laparoscopy. The State Commission awarded huge compensation without any basis. 10. The learned Counsel for Complainant vehemently argued for the enhancement of the compensation. The State Commission overlooked the age and earning of the patient at the time of death. The deceased was working as an Asst. General Manager in State Bank of India and expecting future promotions. The OPs failed in their duty of care and did not do diagnostic procedure properly, thus it was the gross negligence per se and deficiency in service, which caused the death of her husband. Therefore, she deserves enhancement of compensation. 11. We have given our thoughtful consideration to the oral and written arguments of both the sides. The original record from the State Commission also requisitioned. We have perused the medical record, relevant literatures on the subject and inter-alia the impugned order. 12. It is pertinent to note that Dr. Vigil Rahulan, the Pulmonologist examined the patient and CT Scan reports. The CT chest showed mediastinal, abdominal, and axillary nodes. There was minimal pleural effusion. Therefore, lymphoma (cancer) or TB was suspected. Thus, Dr. Vigil advised biopsy diagnosis before commencing on anti TB medication. Since pleural effusion was minimal, the patient was directed to be admitted on 23.4.2007 for diagnostic laparoscopy with peritoneal biopsy. On 24.04.2007, the patient was taken to operation theatre for diagnostic laparoscopy. The OP-2 during laparoscopy noted completely frozen abdominal organs and plastic feel of the intestines. The multiple mottling nodes in abdomen was suggestive of widespread disease, involving multiple organs as well as the peritoneum. The biopsy could not be taken through the laparoscope, therefore to widen the aperture laparotomy was performed by OP-2 and taken mesenteric node biopsy. After the procedure, the patient was shifted to the ICU and kept under close monitoring as mentioned in the contemporaneous hospital records. 13. Let us go through the chronology of events occurred at MIOT Hospital. After Master Health check-up, Dr. Maran examined the patient. He noted that the patient had symptoms of weight loss and evening rise of fever etc. Dr. Maran made the provisional diagnosis as ?chronic appendicitis, ? infective hepatomegaly. He advised abdominal Ultrasonography, Mantoux test and CT scan chest. 14. After the CT scan procedure the patient got severe shivering, which was suspected due to contrast allergy and the same was treated immediately with IV fluids, injection Avil and Decadron. Thereafter, the patient was shifted to ICU. We do not think it was negligence as alleged by the Complainant. 15. The CT abdomen revealed hepatosplenomegaly with multiple mesenteric lymph nodes and the CT chest revealed mediastinal lymph nodes and bilateral minimal pleural effusion, for which pleural tap was not done. Based on the reports and the opinion of Dr. Vigil, Tuberculosis or Lymphoma was suspected. Therefore, before starting anti-TB treatment, it was decided by OP-2 to perform intra-abdominal lymph node or peritoneal biopsy confirmation. It was also necessary to rule out other differential diagnoses. Dr. Vigil Rahulan was a qualified Pulmonologist at MIOT Hospital, who was competent to treat the TB patients. Therefore, the allegation of Complainant about ‘non availability of TB specialist’ at MIOT is not sustainable. 16. We have carefully perused the operative findings. It revealed Dr. Maran (OP-2) performed the diagnostic laparoscopy on 24.04.2007. It revealed. It revealed completely frozen abdomen with plastic feel, it was studded with nodules of varying sizes 1x2 cm mottled in visceral and parietal peritoneum and omentum. According to the submissions of OP-2, laparotomy (open biopsy) was performed and as the tissue was very friable, biopsy of the mesenteric lymph node was taken. 17. The histopathology report (229/2007) dated 25.04.2007 of mesenteric lymph node revealed multiple necrotising granulomas consists of epitheloid cells, Langhan’s giant cells and chronic inflammatory cells. It was diagnosed as Tuberculosis. The treatment with antitubercular and broad spectrum antibiotics was started. The patient was kept under observation. The patient was comfortable throughout 24.02.2007 and all the vital parameters were normal. On 25.04.2007 at 2.55 pm, the patient complained of breathlessness and the BP was 100/60. Dr. Maran examined the patient and advised to shift to ICU. There was no abdominal distension. The patient was given oxygen. The Pulmonologist – Dr. Vigil, who examined the patient on 26.04.2007, noted that the patient was hypoxic, intubated and given inotropes and put on ventillatory support by taking informed Consent. He advised to taper the inotropes and start AKT. The Nephrologist was consulted, who suspected disseminated Tuberculosis. The patient was transfused multiple units of blood. 18. Again, re-look laparotomy was performed by OP-2 which revealed ileac perforation which could not be stitched or closed due to very friable tissue. Therefore, tube enterostomy was performed. Subsequently the patient developed multi organ failure and further due to sepsis with DIC with altered coagulation profile. Patient was transfused with Fresh Frozen Plasma and Platelets; but the patient suffered cardiac arrest on 27.04.2007, CPR was started as per standard protocol but the patient did not survive, declared dead at 11:00 AM. 19. On careful perusal of histopathology (HPE) report (S 229/07), the diagnosis was made as “Mesenteric Lymphnodes, Biopsy – Necrotising Granulomas, Consistent with Tuberculosis”. 20. It is pertinent to take note on the gross findings of the specimen sent for HPE. The specimen sent was “Mesenteric Lymphnodes”. However, the gross and microscopic description as below: GROSS: Received in formalin are several enlarged and mattered lymphnodes, attached to a short segment of bowel, 6x1 cm. On sectioning, the nodes reveal small foci of necrosis. MISCROSCOPIC DESCRIPTION: The Lymphnodes and adjacent smooth muscle wall of small intestine reveal multiple necrotizing granulomas. These are composed of epitheloid cells, Langhan giant cells and chronic inflammatory cells.” Thus, on bare perusal of gross description, it is evident that short segment of bowel 6x1cm was resected at the time of biopsy. In the instant case, admittedly, OP-2 noted the frozen abdomen and the friable tissue during procedure. However, while taking the biopsy of mesenteric lymph node, he resected a piece of intestine (6x1cm). In our view, when the abdomen was frozen, in that case, resection of intestine was not advisable and also it was not a standard of reasonable practice. We further note due to friability of the tissue, stitches could not be put and therefore, enterostomy was performed. It further led to peritonitis and septicemia leading to multi-organ failure and death of the patient. 21. The Hon’ble Supreme Court in its several judgments has discussed about the concept of duty of care expected from the hospital and treating doctors. In Kusum Sharma and others v. Batra Hospital and Medical Research Centre & Others.[1], it was held that the breach of expected duty of care from the doctor, if not rendered appropriately, it would amount to negligence. It was further held that, if a doctor does not adopt proper procedure in treating his patient and does not exhibit the reasonable skill, he can be held liable for medical negligence. The complainant is required to prove that the doctor did something or failed to do something which is the given facts and circumstances, no medical professional in his ordinary senses and prudence. 22. Similarly, in the case of Dr. Laxman Balkrishan Joshi Vs. Dr. Trimbak Bapu Godbole and Anr.[2], Hon’ble Supreme Court discussed about the duties of doctors and held as below: "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 whether 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. The above principle was again applied by this court in the case of A.S. Mittal and Ors. vs. State of U.P. and Ors. (AIR 1989 SC 1570). It observed "A mistake by a medical practitioner which no reasonably competent and a careful practitioner would have committed is a negligent one." In the instant case the OP-2 failed in his duty of care during treatment of the deceased, it was negligence. 23. With respect to the First Appeal filed by the Complainant for enhancement of compensation, we find that the Complainant failed to convince us about the basis of enhancement. In our view, the award of State Commission is just and reasonable. 24. Based on the discussion above, the State Commission was justified to award compensation. No interference is called for. Both the Appeals, being devoid of any merit, are dismissed. The Parties are directed to bear their own costs. | 
